AGREEMENT BETWEEN CITY OF SUNNYVALE AND FREMONT UNION HIGH SCHOOLS FOUNDATION, FOR MAINTENANCE, OPERATION AND USE OF A CHALLENGE ROPES COURSE AT SUNNYVALE BAYLANDS PARK
THIS AGREEMENT dated February 1, 2004 is by and between the CITY OF SUNNYVALE, a municipal corporation ("CITY") and FREMONT UNION HIGH SCHOOLS FOUNDATION, a California non-profit corporation (“FOUNDATION”).
WHEREAS, a Challenge Ropes Course is a series of individual and group physical challenges that require a combination of teamwork skills and individual commitments; and
WHEREAS, through previous cooperative agreement with CITY, FOUNDATION has constructed a Challenge Ropes Course (the Course) at Sunnyvale Baylands Park (the Park); and
WHEREAS, such courses have proven to be exceedingly valuable in promoting responsibility, self-confidence and self-esteem, trust in self and others, respect for others, teamwork and leadership skills; and
WHEREAS, FOUNDATION desires to and is capable of undertaking the maintenance, operation and supervision of use of the Course; and
WHEREAS, the County of Santa Clara, owner of the Park, has determined that such Course is consistent with the Master Plan for the Park and the Master Plan Agreement between the County and CITY; and
WHEREAS, CITY, as operator of the Park, believes that the continued operation of a Challenge Ropes Course at the Park would be highly beneficial;
NOW, THEREFORE, THE PARTIES ENTER INTO THIS AGREEMENT.
1. Maintenance, Use and Operation of Course
(a) FOUNDATION and CITY shall have the exclusive right to use and operate the designated site as a Challenge Ropes Course, subject to the restrictions and limitations of this section.
(b) FOUNDATION shall be responsible for the maintenance of Course at FOUNDATION cost and expense. Maintenance to include but not limited to:
(1) Repair/abatement of vandalism and graffiti.
(2) Provision of surface material (tree bark/chips) as needed to meet safety and aesthetic standards.
(3) Removal of debris in surface material (bark chips) on dates of their use.
(4) Abatement of hazards (such as broken glass, ground squirrel holes, etc.) to prevent injuries to participants or visitors on dates of their use.
(5) Inspection and repair of components before each use.
(6) Collection and removal of debris from Course and the adjacent site and areas used by Course participants on dates of their use.
(c) FOUNDATION shall be responsible for the selection, training and utilization of instructors and other staff members for the Course, and payment of all compensation to such persons; provided, however, that if CITY determines that any instructor or staff member of FOUNDATION has failed to meet CITY’s standards of conduct, CITY may require FOUNDATION to cease and desist from assigning such person to perform services at the Course.
(d) FOUNDATION shall be responsible for procurement, at its cost and expense, of all materials, supplies, publications, brochures, and marketing publicity that it desires to be used in connection with its promotion and operation of the Course. Such promotional materials shall include a description of the Sunnyvale Fee Waiver process for economically disadvantaged Sunnyvale residents to participate at no or low personal cost.
(e) Except with the written permission of the Director or his/her designee, the Foundation shall operate the Course only between the hours of 7:30 a.m. and 6:00 p.m. on weekdays (Monday through Friday) which have not been designated by CITY as holidays, and one weekend day per month within FOUNDATION priority time period (per sub-paragraph k, below). Planned use of the Course shall be coordinated with Parks Supervisor responsible for Baylands Park Supervisor so as not to conflict with Baylands Park operations or public use. CITY reserves the right to close the Course, if deemed necessary, for public safety.
(f) FOUNDATION shall allow entry and instruction upon the Course only to organized groups that have secured reservations. FOUNDATION shall be responsible for maintaining a reservation system for use of the Course, and shall require that groups using the Course make reservations in advance of use. FOUNDATION shall not permit more than 100 participants to use the Course in one day.
(g) FOUNDATION shall provide not less than one trained instructor for each organized group using the Course. Each instructor shall be responsible for leadership, guidance and conduct of each group and its individual members through the Course in a safe, healthy and courteous manner. Instructors provided for CITY reserved uses shall be provided to CITY at cost. At no time shall FOUNDATION allow use of Course with less than the Course manufacturer's recommended trained instructor to participant ratio. Manufacturer of existing Ropes Challenge Course is Project Adventure, Inc. and the initial ratio is one trained instructor for each twelve students. Future renovations and/or remodels may alter this ratio.
(h) At the end of each day of operation FOUNDATION shall remove from the Course and store in the storage building all movable poles, cables, ropes, platforms and other equipment.
(i) FOUNDATION shall not install any signage or plaque at or adjacent to the Course without the express written approval of the Director or his/her designee.
(j) Persons and groups entering the Park for the purpose of using the Course shall be subject to the same Park entry and picnic reservations fees established by CITY for such entry and use as may be applicable to the public in general.
(k) CITY shall have priority to reserve dates of use of the Course from June 15 through August 15 of each year. The FOUNDATION shall have priority to reserve dates of use of the Course during the remainder of the year. The FOUNDATION and CITY may request reservations for use of the Course during non-priority time periods, if it has not been previously reserved. The FOUNDATION shall inventory equipment at the end of its priority time period and submit a copy of the inventory to the Park Supervisor responsible for Baylands Park. CITY will have the right to use equipment. Any equipment lost during this period will be replaced at CITY’s cost.
(l) FOUNDATION and CITY agree to meet at a minimum of once per year to discuss operating issues.
2. Time for Performance
(a) FOUNDATION shall be responsible for use, operation and maintenance of the designated site as a Challenge Ropes Course pursuant to Paragraph 3. If FOUNDATION fails to use, operate and maintain the designated site as a Challenge Ropes Course for a period of twelve (12) consecutive months, CITY may terminate this Agreement by giving FOUNDATION written notice of said termination.
(b) This Agreement shall remain in full force and effect for one (1) year unless sooner terminated pursuant to Subparagraph (a), of this paragraph or pursuant to Paragraph 16.
(c) Upon termination of this Agreement, CITY shall have the right to reuse the designated site for any permissible use, and shall have the right to remove from the site any and all components of the Course and the storage building.
(d) Upon termination of this Agreement, Ropes Course equipment (harnesses, ropes, helmets, etc.) remains the property of the FOUNDATION. However, FOUNDATION shall remove same from the Park within three (3) months of termination of Agreement or forfeit ownership of Ropes Course equipment to CITY.
3. Renovation and Remodel of Course
(a) FOUNDATION shall consult with the Director of Parks and Recreation of CITY (“the Director”) and/or his/her designees in determining any appropriate renovation, redesign and/or remodel of the Course and storage building. No fabrication, installation, or construction of the Course or storage building shall occur unless and until the Director shall have given written approval thereto.
(b) The FOUNDATION shall be solely responsible for the acquisition of all necessary components and materials for the fabrication, assembly, installation, and construction of any approved renovations and/or remodeled components in accordance with all applicable permit requirements and processes of the CITY and County of Santa Clara.
(c) The FOUNDATION shall be solely responsible for funding the performance of its duties and obligations with respect to the Course, and neither CITY nor County of Santa Clara shall have any obligation to contribute toward the funding of the Course, its renovation, remodel, operation, maintenance or use.
(d) The site of the Course and storage building within the Park shall be as set forth in Exhibit "A", attached and incorporated by reference. The Course and storage building, and any approved additions, renovations and/or remodeled components shall be the property of CITY.
4. Charging of fees for use of Course
(a) FOUNDATION shall be entitled to charge fees to users of the Course. Such fees may be charged on an individual or group basis. Such fees shall be charged on a below market rate basis to the students, administration and staff of Fremont Union High School District.
(b) Per City Fee Waiver policies, FOUNDATION shall waive the fee otherwise applicable for use of the Course by any Sunnyvale resident that meets income criteria, as established by Sunnyvale Community Services, indicating participant’s inability to pay. Such fees shall be reimbursed to FOUNDATION in accordance with Fee Waiver Policies and provided only as available through approved budgets by the City Council.
5. Compensation; Accounting
(a) Because the Course was constructed at no expense to CITY, will be operated and maintained at no cost to the CITY and will provide a valuable experience to many CITY residents and because FOUNDATION does not intend this to be a profit making enterprise, no monetary compensation from Foundation to CITY shall be required.
(b) FOUNDATION shall receive revenues and be responsible for expenditures for operating the Course when groups participating through reservations of Foundation use the Course.
(c) Not later than the 1st of September of each calendar year, FOUNDATION shall provide CITY with a written accounting to include: related fees; the number of persons who have used the Course during the previous fiscal year; the number of Sunnyvale resident fees waived; and, the amount of gross revenues generated by the Course.
(d) At any time during normal business hours, and as often as may be reasonably necessary, FOUNDATION agrees that CITY, or its duly authorized representatives, shall have access to and the right to examine its offices, worksites and facilities used in the performance of this Agreement, and its records with respect to all matters covered by this Agreement, excepting those covered by attorney-client privilege. FOUNDATION also agrees that CITY or its duly authorized representatives have the right to audit, examine and make excerpts or transcripts of and from, such records, and to make audits of all contracts or subcontracts, invoices, payrolls, records of personnel, conditions of employment, materials and all other data pertaining to this Agreement.
6. Conflict of Interests
No officer or employee of CITY shall have any interest, direct or indirect, in this Agreement or in the proceeds thereof. During the term of this Agreement FOUNDATION shall not accept employment or an obligation which is inconsistent or incompatible with their obligations under this Agreement.
7. Confidential Information
FOUNDATION shall maintain in confidence and at no time use, except to the extent required to perform its obligations hereunder, any and all proprietary or confidential information of CITY of which they may become aware in their performance of this Agreement.
8. Compliance with Laws
(a) FOUNDATION shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, gender, age (persons 40 years of age or older), disability, national origin, or any other basis to the extent prohibited by federal, state or local law.
(b) FOUNDATION shall comply with all federal, state and city laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies or tribunals in any manner affecting the performance of the Agreement.
9. Independent Contractor
FOUNDATION and any additional contractors, corporations or business enterprise that they may employ for maintenance, repair or operation of the Course are acting as independent contractors in performing this Agreement and are not agents, servants or employees of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and FOUNDATION. FOUNDATION is responsible for paying all required state and federal taxes.
10. Indemnity
(a) FOUNDATION agrees to indemnify and hold harmless CITY, its officers and employees from any and all claims, demands, actions, causes of action, losses, damages, liabilities, known or unknown, and all costs and expenses, including reasonable attorneys' fees in connection with any injury or damage to persons or property arising out of or in any way connected with the act, omission or negligence of FOUNDATION, its officers, employees, agents, contractors, subcontractors or any officers, agents or employees thereof in relation to FOUNDATION'S performance under this Agreement.
11. Insurance
FOUNDATION shall take out and maintain during the life of this Agreement policies of insurance.
FOUNDATION shall, during the period commencing on the date on which this Agreement is signed, and continuing without interruption until this Agreement is canceled, revoked, or otherwise terminated, and at its own cost and expenses, provide and maintain in such form and with a company or companies satisfactory to the City of Sunnyvale, a policy or policies of each of the following types of insurance, to wit:
1. Bodily injury liability insurance in an amount not less than $1,000,000 for injuries including accidental death to any one person, and subject to the same limit for each person in an amount not less than $1,000,000, on account of any one occurrence, and property damage liability insurance in an amount not less than $1,000,000; provided, however, as follows:
a. City of Sunnyvale shall be named as an additional insured in each of said insurance policies;
b. A contractual liability endorsement shall be added to each insurance policy extending coverage to include the liability assumed under subparagraph 1 above.
c. Foundation shall have the sole responsibility of insuring (if it so desires and at its own cost and expense) equipment and supplies which it is required to provide for operation of the Course against loss or damage from fire, theft, or any other cause.
12. CITY Representative
The City Manager of CITY, or his/her authorized representative, shall represent CITY in all matters pertaining to this Agreement. All requirements of CITY pertaining to this Agreement shall be coordinated through the CITY representative.
13. FOUNDATION Representative
The President of FOUNDATION or his/her authorized representative shall represent FOUNDATION in all matters pertaining to this Agreement; all requirements of FOUNDATION pertaining to this Agreement shall be coordinated through the FOUNDATION representative.
14. Notices
All notices required by this Agreement shall be in writing, and shall be personally delivered, sent by first class mail with postage prepaid, or by commercial courier, addressed as follows:
To CITY: City Manager
CITY OF SUNNYVALE
P. O. Box 3707
Sunnyvale, CA 94088-3707
To FOUNDATION: President
FREMONT UNION HIGH SCHOOLS
FOUNDATION
589 W. Fremont Avenue
Sunnyvale, CA 94087
Nothing in this provision shall be construed to prohibit communication by more expedient means, such as by telephone, e-mail or facsimile transmission, to accomplish timely communication. However, to constitute effective notice, written confirmation of a telephone conversation or an original of a facsimile transmission must be sent by first class mail, by commercial carrier, or hand-delivered. Each party may change the address by written notice in accordance with this paragraph. Notices delivered personally shall be deemed communicated as of actual receipt; mailed notices shall be deemed communicated as of three days after mailing, unless such date is a date on which there is no mail service. In that event communication is deemed to occur on the next mail service day.
15. Assignment
No party shall assign or sublet any portion of this Agreement without the prior written consent of the CITY and FOUNDATION.
16. Termination
If FOUNDATION defaults in the performance of this Agreement, or materially breaches any of its provisions, CITY at its option may terminate this Agreement by giving written notice to FOUNDATION.
17. Entire Agreement; Amendment
This writing constitutes the entire agreement between the parties relating to the services to be performed or materials to be furnished hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing signed by all parties.
18. Miscellaneous
Time shall be of the essence in this Agreement. Failure on the part of any party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or any other provision. This Agreement shall be governed and construed in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement.
ATTEST:
CITY CLERK
___________________________
City Clerk
APPROVED AS TO FORM:
____________________________
City Attorney
FREMONT UNION HIGH SCHOOLS FOUNDATION, by
_________________________________
President
CITY OF SUNNYVALE, by
_________________________________
City Manager