Agenda Item No. 10
CITY OF YUCAIPA
AGENDA REPORT
TO: Honorable Mayor and City Council
FROM: Megan Wolfe, Director of Community Services 14W
FOR: City Council Meeting of October 24, 2022
SUBJECT: Joint Use of Facilities Agreement — Crafton Hills College Aquatics Complex
RECOMMENDATION:
That the City Council approve and authorize the Mayor to execute a Joint Use of Facilities Agreement (Agreement) with San Bernardino Community College District (District) for the joint programming of the Crafton Hills College Aquatics Center (AC).
BACKGROUND:
In 2004, the City of Yucaipa purchased a 50-meter by 25-yard stainless steel pool from Myrtha Inc., which was used temporarily for the 2004, United States Olympic Swim Trials held in Long Beach, California. The City purchased the swimming pool in order for it to be installed on the campus of Crafton Hills Community College and be available for use by Yucaipa Based Aquatic Organizations (YBAO).
On July 13, 2009, the City Council authorized the Mayor to execute an Agreement with the District for community use of the AC. Terms of the Agreement authorized the City to schedule use of the pool for YBAO comprised of 51 % or more Yucaipa residents. Through the City, these groups were granted priority use of the AC second only to the District. The terms of the Agreement stipulated that the District was responsible for the construction, operation, and maintenance of the AC. In turn the city paid for the operations and maintenance portion of user fees assessed to the YBAO for a period of fifteen years in an amount not to exceed $2,000,000.
The proposed first year payment was $100,000 with each subsequent year's payment tied to the change in the Consumer Price Index (CPI) annually.
DISCUSSION:
City and District staff met to negotiate the terms of the proposed Agreement. The proposed Agreement, presented for Council's review and approval, identify that the District will continue to be responsible for the operation and maintenance of the AC, and the City's contribution will help pay for the maintenance costs. Staff will continue to work with District staff to coordinate, and schedule YBAOs' use of the AC.
The current Agreement between the City and District is set to expired on June 9, 2025. which coincides with the seasons of play. The proposed Agreement shall commence on January 1, 2023 and expire on December 31, 2037.
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FISCAL IMPACT:
There is no change to the cost for this Fiscal Year associated with this agreement extension and the annual cost has been budgeted in the Fiscal Year 22/23 operating budget.
Approved by:
Attachment: Joint User of Facilities Agreeme
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CITY OF YUCAIPA/SAN BERNARDINO COMMUNITY COLLEGE DISTRICT JOINT USE OF FACILITIES
AGREEMENT
THIS JOINT USE AGREEMENT ("Agreement") is entered into on by and between City OF YUCAIPA, a California municipal corporation (hereinafter "City"), and THE BOARD OF TRUSTEES OF SAN BERNARDINO COMMUNITY COLLEGE DISTRICT (hereinafter collectively referred to as the "District"), and is made with reference to the following:
RECITALS:
WHEREAS, the Aquatic Center ("AC") constitutes a facility owned, operated and maintained by District on land owned by District; and
WHEREAS, City purchased a Fifty Meter Swimming Pool manufactured by Myrtha Pools, Inc. (the "Swimming Pool") in 2004; and
WHEREAS, the Swimming Pool was installed at the AC in 2010; and WHEREAS, City and District desire to continue with an updated joint use agreement based upon the initial agreement established in 2009 to address the continual use and operation of the Swimming Pool by City and District; and
WHEREAS, City and District desire that the Swimming Pool be available on a priority basis to any non-profit community based aquatic organizations ("Yucaipa Community Based Aquatic Organization(s)", or "YCAAO") and educational based aquatic organizations ("Yucaipa Educational Based Aquatic Organization(s)" or "YEBAO") with a membership comprised 51% or more of Yucaipa residents; and WHEREAS, City desires to offset the overall operations and maintenance costs related to use of Swimming Pool by YCABO for the Swimming Pool for the next fifteen (15) years WHEREAS, City and District mutually desire to promote the health and welfare of the people of City and of District, and to cultivate and develop good citizenship by providing for an aquatic facility for non- profit aquatic organizations and college education and athletic programs; and WHEREAS, City and District have previously maintained a cooperative working arrangement, which has shown that the use of grounds and facilities by the two authorities can afford the community increased swimming, physical education and athletic opportunities; and WHEREAS, the parties have previously entered into that certain Memorandum of Understanding dated June 23, 2009, pursuant to which City caused the unassembled Swimming Pool to be delivered to District; and
WHEREAS, for historical purposes, from 2010 through June 30, 2022, the parties followed that certain Memorandum of Understanding dated December 10, 2009, pursuant to which City contributed $100,000 per year towards the operation and maintenance of the AC in exchange for priority use of the Swimming Pool for YCABO;
WHEREAS, the parties desire to continue a mutually beneficial agreement for priority pool use for YCABO and YEABO.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. TERM AND TERMINATION
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A. The term of this Agreement (the "Term") shall be for a period of fifteen (15) years commencing on the date this agreement is executed below and extending through December 31, 2037; unless sooner terminated as outlined in this section.
B. Failure or delay by either party to perform any term or provision of this Agreement constitutes a default under this Agreement. The party who so fails or delays must immediately commence to cure, correct, or remedy such failure or delay and shall complete such cure, correction or remedy with reasonable diligence and during any cure period shall not be in default under this Agreement. The non -defaulting party shall give written notice of default to the party alleged to be in default, specifying the default complained of by the non -defaulting party. Delay in giving such notice shall not constitute a waiver of any default. Neither party may exercise any rights or remedies upon a non - monetary default by the other party, unless and until such default continues for a period of thirty (30) days after written notice thereof from the non -defaulting party, unless otherwise provided herein. Neither party may exercise any rights or remedies upon a monetary default by the other party, unless and until such default continues for a period of ten (10) days after written notice thereof from the non -defaulting party. Any failures or delays by any party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive any party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies.
C. In the event of major facility failure that District decides not to repair resulting in a permanent closure of the Swimming Pool, either party may terminate this Agreement, upon five (5) days notice to the other party. In that event, District shall refund to City a pro-rata amount of its annual payment effective as of the date of the written notice of termination.
FORCE MAJEURE
Neither party shall be held liable or responsible to the other party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any obligation under this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected party, including but not limited to fire, floods, embargoes, war, acts of war, insurrections, riots, strikes, lockouts or other labor disturbances, or acts of God; provided, however, that the party so affected shall use reasonable commercial efforts to avoid or remove such causes of nonperformance, and shall continue performance hereunder with reasonable dispatch whenever such causes are removed. Either party shall provide the other party with prompt written notice of any delay or failure to perform that occurs by reason of force majeure.
DISTRICT RESPONSIBLE FOR ALL COSTS
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Except as set forth in Sections 4 and 5 of this Agreement, District shall be responsible for all costs of operating, and maintaining the AC, including but not limited to costs for utilities, supplies and maintenance staffing.
4. SCHEDULING AND OPERATIONS
A. Except as otherwise expressly provided in this Agreement, District staff shall manage and control the operation of the AC, monitor and oversee the use of the Facility, control the key distribution to the Facility and all rooms therein, and retain the right of access to all rooms and locations in the Facility at all times.
B. City and District shall prepare and agree upon a master calendar ("Master Calendar") for use of the AC. The Master Calendar shall be set for two periods: summer (June -August) and School Year (September -May) and shall be finalized no later than fifteen days prior to the start of each period. The Master Calendar shall be maintained by District and may be revised with the concurrence of City Manager or designee and District's Crafton Hills College Athletics Director. At any time, the Master Calendar may be altered for a special event at the request of either party subject to the consent of the other party, which consent shall not be unreasonably withheld.
C. In the event that YCABO is scheduled to use Swimming Pool but becomes aware that they will not use the pool for more than a 15-minute period, the YCABO shall notify City and District at least 5 business days ahead of time, when reasonably possible. If the YCABO does not notify the City and District, the YCABO shall pay a penalty to the District equal to the direct hourly rate for use the pool as set by the District for all unused time. YCABO shall be allowed two (2) unscheduled absences per calendar year before such penalty becomes effective. The district shall notify the YCABO and city of such unscheduled absences. Reasonable non-use related to extreme weather conditions or facility maintenance shall not incur penalties.
D. In the event of major facility failure necessitating temporary closure of the AC, District shall notify City within twenty-four (24) hours when possible. District will provide to City a written estimated timeline of repairs required to restore the facility to full operation. If District decides not to repair the facility, District shall immediately notify City and the Agreement will be terminated pursuant to section 1 of this Agreement.
USE OF THE POOL
A. City shall disburse the sum of $120,000 plus CPI adjustment to District (the "Annual Contribution") in accordance with Section 5.13 of this Agreement. The amount of the Annual Contribution shall be adjusted and compounded annually by the percentage change in the CPI, for the most recent twelve- month period for what data is available.
For purposes of this Section 6.A, "CPI" means the Consumer Price Index for All items in Riverside -San Bernardino -Ontario, CA (Series ID = CUURS49CSA0), all urban consumers, not seasonally adjusted (December 2017 = 100). The college shall invoice the district in November of each year and the payment shall be due by December 31 of each year. -131-
B. City's Annual Contribution to the AC Swimming Pool is intended to purchase the operations and maintenance portion of direct cost assessed to the YCBAO by the District for the next 12 months of pool operation. In addition, the City's Annual Contribution to the AC Swimming Pool, is intended to purchase priority use of the AC Swimming Pool for the YCBAO over all other non -District uses of the Swimming Pool facility for practices and competitions on days and times determined annually through the Master Calendar prepared by and agreed upon by City and District pursuant to Section 4.6. of this Agreement.
C. YCBAO shall be granted use of the AC Swimming Pool without charge, except for employee cost. Employee cost is defined as those costs of services of any District employee and salaries paid necessitated by the YCBAO's use of the facilities if that employee would not otherwise be present as part of his or her normal duties such as special, or after-hours, or weekends, or holidays, events. All employee costs for use of the facility charged by District to the YCBAO shall be in accordance with an employee cost schedule adopted by the District. The College will provide an employee cost schedule to the City and, if requested, meet with the City and YCBAO to discuss the employee cost schedule for purposes of fiscal planning and scheduling.
D. In addition, the City's Annual Contribution to the AC Swimming Pool will purchase priority use of the AC Swimming Pool facility for YEBAO second in order of priority use to the YCBAO. YEBAO shall be granted use of the AC Swimming Pool in accordance with the direct cost schedule adopted by the District.
Swimming Pool usage shall allow for efficient use of the pool as described below. YCBAO organizations will turn in attendance records for lane usage to the city and college when requested by the College. YCBAO organizations may not request additional lanes if they do not have a minimum of 5 swimmers per lane or 30 athletes per 6 lane water polo course/field. In the event YCBAO are requesting inefficient usage of the pool the City and College will meet to determine new schedule of pool usage.
Videotaping, filming, photography, broadcasting or recording activities for commercial purposes by City is prohibited unless expressly authorized by District. Temporary signage for special events may be permitted to be placed on the interior walls of the AC, after being authorized by District. The logo of a commercial sponsor may be included on a small area of the temporary sign.
G. Permanent signage may only be installed by District. No alcohol or tobacco sponsor advertising shall be permitted at any time, by either party.
6. MAINTENANCE AND UTILITIES
A. District shall provide all utilities necessary for the use of the AC.
B. District shall maintain the AC and related improvements and equipment, including but not limited to the Swimming Pool and any other pools, deck areas, building(s), perimeter walls, and landscaping (if any), in a condition that is safe, clean, operable, and usable for the designated use and purpose.
7. STAFFING OF POOL FACILITY -132-
A. The YCBAO and YEBAO shall provide their own Lifeguards or USA Swimming Certified Coaches or USA Water Polo Certified Coaches, at their expense, at all times their organizations are utilizing the AC. At all times the AC is in use, there shall be minimum staffing levels, including a minimum lifeguard or USA Swimming Certified Coach to swimmer ratio. All lifeguards shall possess a valid American Red Cross or state recognized certificate in the following: Community First Aid and Safety CPR/AED for the Professional Rescuer and Lifeguard Training. All USA Swimming Certified Coaches shall possess approved CPR, First Aid, and Safety certifications as set forth in the most current USA Swimming Safety Curriculum.
B. The College and City may request copies of YCBAO staff certifications at regular intervals.
YCBAO organizations shall notify the City and College when they hire new staff and send the City and College copies of the certifications before the new employee works at the AC.
MEET AND CONFER
City Manager or designee and District's Crafton Hills College President or designee shall meet on a regular basis, as mutually agreed, but no less than once a year, to discuss operational issues and implementation of this Agreement, and to correct deficiencies.
9. PARKING
Contingent upon general parking availability and at all times, with the exception of special events, that the AC is open per the Master Calendar, District agrees to charge YCBAO and YEBAO the same parking fee in accordance with District parking policy and regulations as other non- Crafton College users.
10. COMPLIANCE WITH LAW
All work, services and activities pursuant to this Agreement shall be in accordance with all applicable ordinances, resolutions, statutes, rules, and regulation of any federal, state, or local governmental agency of competent jurisdiction.
11. NOTICE
Notices, demands, and communications between City and District shall be given either by (i) personal service, (ii) delivery by reputable document delivery service that provides a receipt showing date and time of delivery, or (iii) mailing in the United States mail, certified mail, postage prepaid, return receipt requested or by (iv) e-mail or facsimile, addressed to:
To CITY: City of Yucaipa
34272 Yucaipa Blvd.
Yucaipa, California 92399
Attn: City Manager
Yucaipa City Attorney's Office
34272 Yucaipa Blvd.
Yucaipa, California 92399
TO DISTRICT: San Bernardino Community College District
Office of the Chance103-
550 E Hospitality Lane, Suite 200
San Bernardino, CA 92408
Attn: Chancellor
With copies to:
Facilities, Planning & Administrative Services
550 E Hospitality Lane, Suite 200
San Bernardino, CA 92408
Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail.
When sent by email or other means and upon the receipt by the sending party of written confirmation by the receiving party; provided, however, that an automated confirmation of delivery or read receipt shall not constitute such confirmation.
12. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The section headings are for purposes of convenience only.
13. INTEGRATION: AMENDMENT
It is understood that there are no oral agreements between the parties hereto affecting this Agreement and the subject matter hereof arrangements, oral agreements and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual consent if the parties by an instrument in writing.
14. TERMINATION OF MOU/SEVERABILITY
The Memorandum of Understanding between City and District dated June 23, 2009 is hereby superseded in its entirety, and is of no further force or effect upon execution of this revised MOU.
In the event that part of this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining portions of this Agreement with are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
15. ATTORNEY'S FEES
If a party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorney's fees. -134-
16. GOVERNING LAW.
This Agreement shall be interpreted, enforced and governed by the laws of the State of California.
17. COORDINATION OF WORK
A. Crafton Hills College Athletic Director or designee is hereby designated as being the principal and representative of District authorized to act in its behalf with respect to the work, services, and activities specified herein.
B. City's Director of Community Services or designee ("City Representative") is hereby designated as being the representative of City authorized to act in its behalf with respect to work, services, and activities, specified herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the day and year first above written.
City of Yucaipa San Bernardino Community College District David Avila, Mayor
ATTEST:
Jennifer Shankland,
City Clerk
City of Yucaipa
APPROVED AS TO FORM:
City Attorney
City of Yucaipa
Date Steven J. Sutorus, Business Date
Manager
Date Megan Wolfe, Date
Community Services Director
Date
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