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02-074 De Anza Aquatics - temp use of BBF pool-1 ~_ ~' City Hall 1 J 10300 Tone Avenue Cupertino, CA 95014-3255 CITY OF Telephone: (408) 777-3110 C O P E ITT I N O FAX: (408) 777-3366 Website: www.cupertino.org PARKS AND RECREATION ADMINISTRATION August 8, 2002 Mr. Pete Raykovich De Anza Cupertino Aquatics PO Box 436 Cupertino CA 95015-0436 Re: Temporary Use of Pool Facilities at Blackberry Farm Dear Mr. Raykovich, De Anza Cupertino Aquatics (hereafter refenre;d to as "DACA") has requested the temporary use of the City's pool facilities at Blackberry Farm for swim instruction purposes for a period of six months commenc~.ng in September 2002. The City will agree to allow such temporary use under the following terms and conditions: 1. The facilities to be used by DACA are the exclusive use of the two pools at Blackberry Farm as well as the attached changing rooms and rest rooms. DACA shall also have the non-exclusive use of Blackberry Farm parking lot during its use of the other pool facilities. 2. The use will commence on September 3, 2002 and will, unless extended by written agreement, terminate on the la:;t day of February 200. The use shall be from Monday through Thursday from •x:00 p.m. to 8:00 p.m. 3. DACA's use of the facilities is limited to providing swimming instruction for a maximum of 200 students per night. 4. DACA will be responsible for reimbursing the City for all actual costs incurred by the City in allowing said temporary use including, but not limited to, utility costs, city staff time, security costs, pool and facilities maintenance, cleaning and repair costs, and pool chemical costs. Said costs shall be reimbursed within 30 days of billing by City. As used herein, utility costs include, but are not limited to, water, electricity, gas, garbage collection, janitorial, chemicals, and daily pool maintenance. DACA will be responsible for securing the facility after use. Printed on Recycled Paper Temporary Use of Pool Facilities at Blackberry F~um August 8, 2002 Page 2 of 4 6. DACA will be responsible for the cost of :~11 pool covers and other equipment necessary to conduct its temporary use, including temporary lighting for the pool deck. Lighting will also be needed for parking. 7. All improvements and repairs performed try DACA to the facilities shall only occur upon written permission from the City. The use of the pool facilities by DACA is subject to the paramount right of the City to control and operate Blackberry Farm and the pool facilities. The City reserves the right to cancel this temporary use agreement at amp time for any reason upon giving DACA written notice of said cancellation. 9. The City reserves the right to reduce or change the number size, type, location, and/or use of the pool facilities at any time during this agreement. 10. DACA, during the term of its use, assumes all liability for personal injury or property damage in any way arising out of its use o P the pool facilities. Further, DACA agrees to defend, indemnify, and hold harmless Cit}~ against all damages, liabilities, or other costs or expenses (including legal fees and cost:.) that the City may pay as a result of any claim or lawsuit arising from DACA's use of these pool facilities. 11. DACA will, at its own cost and expense, I>rocure and maintain during its usage of the pool facilities the following insurance coverage. a) Comprehensive general public lialr~ility insurance incurring against the risks of bodily injury, property damage, and personal injury liability occurring at or near the pool facilities or arising out of DACA's use of the facilities, with a combined single limit of at least $2,000,000.1)0 including, but not limited to coverage for facility's operations, broad form blanket contractual coverage, and standard personal injury coverages A, B, and C. b) Fire and extended coverage insurance, and vandalism, and malicious mischief insurance, insuring DACA's fixtures and equipment in or on the pool facilities for 100 percent of their insurable and replacement cost, without deduction for depreciation. c) Workers Compensation Insurance as required by the laws of the State of California. 12. Any insurance policy required under this ~igreement shall be issued by a responsible insurance company licensed under the laws of California and shall provide that it shall not be cancelled, terminated, or changed except after 30 days prior notice to City. DACA must deliver to City a duplicate original or certificate for all insurance policies procured by it for the above purposes. 08!07/2002 15:42 4087773366 CITY ~' CtJPERTIND PAGE 04 'l'etupurary Use of Pool Facilities at Blackberry Farm August $, 2t}U2 Page 3 o~F 4 13. DACA agrees that its use ofth.e pool facilities is in an "ss i.s" condition and City makes no warranty regarding the condition of a~~y of the pool facilities. The City as4umtwa nn zespanaibility for the operability of any City equipment at the pool facility including, but not limited to, pool heating, facilities' lil;htizig, ar power. DACA. further agrees to hold City harmless from any event resulting iaz DACA's inability to use the pool facilities caused by any reason whatsoever including the ;negligence of the City, its employees, officers, contractors or agents. 14. At the ~nvIusiou of its teiupvx~tuy use under tha.s agreement, DACA, agrees to vacate the pool :facilities in the same condition as fide facilities were at the commencement of its use. DACA will reimburse City for any snti all damages to the poll faoiIitics caused by ):7-ACA's use thereof 15. DACA may not assign. its rights under this agreement without written consent of the City. 16. !n any litigation, which is commenced bc,tween the parties concerning any issue contained in this agreement, the prevailing party shall be entitlad to reasonable attorney's fees and costs. 1'7. Tn the event that the City or DACA recei~rea coxttplaints from the owners or occupiers of properties adjacent to, or near Blaelcberry Farnn regarding any environmental inttpaets attuned by DACA's use of the pool facilities, DACA, agrees to x~aect with #hc complauiants and to undertake reasonable measures to cease or mitigate said innpacts. l $. Tl1e agreement becazztes e~'eetive ozxly u~,an, the execution by an authorized agent o£ DACA, of this agresme~nt in the space designated below ar the execution of this agreement by the Gity Manager thereafte~~. Date: ~~~1~-~0~ ~'Iterese Ambzasi Sxnitb. Dizectoz of 1' ation .~ Z ~ e Anna Cupertino quatics, a nanprnfit corpora nn Date: ~ . 2 Z , O Z ~~ David W. Knapp, City Manager City of Cupertino Temporary Use of Pool Facilities at Blackberry F~um August 8, 2002 Page 4 of 4 APPROVED AS TO FORM Charles T. Kilian, City Attorney RESOLUTIONv N0.02-155 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO AUTHORIZING CITY MANAGER TO EXECUTE AN INFORMAL LETTER AGREEMENT WITH DE ANZA CUPERTINO AQUATICS FOR THE TEMPO]EZARY USE OF THE POOL FACILITIES AT BLACKBERRY FARM Whereas, De Anza Cupertino Aquatics, a California non-profit corporation, has requested the temporary use of the City's pool facilities at Blackberry Farm for a period of approximately six months from September 2002 until February of 2003; and Whereas, there has been presented to the City Council an informal letter agreement attached to this Resolution whereby said temporary u:;e is approved under certain terms and conditions; and Whereas, the terms of the informal letter agreement have been reviewed and approved by the City Attorney and the Director of Parks and Recreation; and Whereas, the aforementioned agreement has been executed by the authorized representative of De Anza Cupertino Aquatics; NOW, IT IS THEREFORE RESOLVED: The City Council of the City of Cupertino hereby authorizes the City Manager to execute said agreement on behalf of the City of Cupertino. PASSED AND ADOPTED by the City Council of the City of Cupertino this 19th day of August 2002 by the following vote: MEMBERS OF THE CITY COUI`1CIL AYES: Lowenthal, Chang, James, Kwok NOES.: None ABSENT: Sandoval ABSTAIN: None ATTEST: APPROVED: /s/ Kimberly Smith City Clerk /s/ Richard Lowenthal Mayor, City of Cupertino g:\city clerk\resolutions\2002 resolutions\02-155 daca.doc