Loading...
Ordinance No. 14,976 ORDINANCE NO. 14,976 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER TO EXECUTE AN INTERLOCAL AGREEMENT WITH LEE COLLEGE FOR USE OF THE LEE COLLEGE NATATORIUM FOR LIFE GUARD TRAINING; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute an intcrlocal agreement with Lee College for use of the Lee College Natatorium for life guard training. A copy of said agreement is attached hereto, marked Exhibit "A" and incorporated herein for all intents and purposes. Section 2: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown. INTRODUCED, READ, and PASSED by the affirmative vote of the City Council of the City of Baytown, this the 9"' day of December, 2021. DO CAP TILL , Mayor ATTEST: of Op,Y�(?s� a J 04� 01 o 0 " s ANGELA ZCKSON, City Cler p oa� °06 F '��atloerr°°a f OF �G APPROVED AS TO FORM: KMEN L. HORNER, City Attorney RAKaren Hamer\DocumentsTi1es\0ty Counc&Ordinances12021\December 91LecCollegeinterlocal-LifeGuardTraining.doex Exhibit "A" RIGHT OF ENTRY AND USE AGREEMENT This Right of Entry and Use Agreement(the"Agreement") is entered into by and between The Lee College District, a public community college established under the laws of the State of Texas ("College"), on the one part, and the City of Baytown, a home-rule municipal corporation ("RENTER"), with an effective date of November , 2021 ("Effective Date"). Individually, any of the parties shall be referred to as "Party" and collectively, all parties shall be referred to as "Parties". The Parties agree as follows: 1. The College owns certain property and premises located at 200 Lee Drive, Baytown, TX 77520 ("Property") and certain facilities located at the Property, including an indoor swimming pool ("Pool"). Under the terms and conditions of this Agreement, the College hereby grants permission to RENTER to enter the Property and to enter the Pool for the limited purpose of lifeguard training ("Purpose") on the Property and inside the Pool at the times and locations set forth in Exhibit"A"("Usage Time"). RENTER may not enter and/or use the Property any time other than the Usage Time unless it obtains the College's prior written consent. Notwithstanding anything contained herein, RENTER shall not perform any act or enter any part of the Property if and when such entry and use would cause a disruption of College business, classes, student instruction,or other activity. RENTER shall not commit or permit any unlawful or hazardous purpose or any act constituting a public or private nuisance; or do or engage in any act or thing that may disturb the quiet enjoyment of any other person at or near the vicinity of the Property; or keep any substance or carry on any operation that might emit significantly offensive odors into other portions of the Property, the surrounding or the adjacent properties; or do anything that would increase the insurance rate of the College in relation to the Property or its contents. RENTER shall not bring nor permit any other person to bring onto the Property any weapons, alcoholic or intoxicating beverages, any illegal drugs, or any controlled substance, except as such controlled substance is prescribed by a physician; or any firearms, knives, or any other item that could be construed as a weapon. During RENTER's use of the Property, the College and its agents,employees,and students shall have access to the Property and the Pool for any and all purposes necessary or advisable for the College. RENTER shall not interfere with the College's right of access. RENTER shall, upon request, provide a written account of all persons entering and/or accessing the Property by virtue of this Agreement and at what times said access is occurring. 2. In consideration for the use and access granted under this Agreement, RENTER shall pay a fee of$25/day Mon-Thurs. and/or$75/day Fri-Sun. to the College, which shall be due to the College on or before the first day of use requested in Exhibit A. If the fee payment is not received within thirty(30) days of the aforementioned date, the payment shall be considered late. Any such delinquent amounts shall bear simple interest at the rate specified by Section 2251.025 of the Texas Government Code, from the due date thereof until paid in full. Failure to timely deliver such fee shall be a material breach of this Agreement for which the College shall give RENTER written notice and ten (10) days to cure the default. If RENTER fails to cure the breach within such period, such failure shall constitute cause for immediate termination in addition to any other remedy at law or equity to which the College is entitled. 3. RENTER shall follow all applicable laws and regulations and ordinances and comply with all College policies and procedures while on, in,or around the Property,the Pool, the parking lot, or any other portion or part of the Property and adjacent areas. 4. RENTER shall be solely responsible for setting up and taking down of any equipment or materials (collectively referred to as "Renter's Property") used in or about the Property and shall be solely responsible for the safety and security of the Renter's Property. RENTER shall remove any Renter's Property by the end of its usage time on each day or otherwise put such Renter's Property in storage where permitted by the College, if at all. The Parties may also agree to permit certain Renter's Property to remain in designated locations during the usage time, subject to the College's sole discretion. Details regarding the storage or permitted locations for Renter's Property shall be detailed on Exhibit "A,". The College shall not be responsible or liable for the security of or any damage to or loss of any Renter's Property. 5. RENTER assumes full responsibility for the conduct of RENTER and its directors, officers, employees, representatives, agents, guests, or invitees entering the Property. 6. RENTER shall be solely responsible for the costs of any repair or replacement of any College equipment or personal property or any damage to the Property or facilities located on the Property arising out of RENTER's use of the Property pursuant to this Agreement. 7. Any Renter's Property that RENTER does not wish to retain may, at the College's sole discretion, be left for the College's use after the termination of this Agreement and shall become the property of the College. RENTER must obtain written permission prior to leaving any such equipment at the College before the termination of this Agreement. 8. Any access to individuals granted by or in relation to this Agreement shall be regardless of race, sex, color, religion, creed, national origin or ancestry, age, disability, veteran status or other applicable protected class in accordance with State and Federal law. 9. This Agreement is for the use of the College's premises, as set forth herein, only. The Agreement is not a lease and does not create a leasehold interest, tenancy, or any other type of property interest in favor of RENTER. This Agreement is a non-exclusive agreement in that the College reserves the right to enter similar agreements with other persons or entities to permit the use of its facilities before, during, and after RENTER's use so long as such use does not unreasonable interfere with RENTER's use of the facilities. The granting of the use defined herein by the College shall not be deemed to have created, under the law of freedom of expression, a public forum entitling any user(s) to future use. 14. In permitting use of its facilities by RENTER, the College does not relinquish the right to control the management of the facilities and intends to enforce all necessary and proper rules for the management and operation of its facilities. A College administrator or designee shall -2- retain possession of the keys to the facilities, unless otherwise agreed. A College administrator or designee will lock and unlock all entrances and exits of the Property during the usage time. 11. RENTER shall be responsible for all costs associated with any security required by RENTER's use under this Agreement, including any additional security personnel costs the College must incur in relation to this Agreement, but not to exceed $2,500.00 per day. The College reserves the right to make any determinations at its sole discretion regarding the use of security and the security needed in relation to this Agreement, and shall determine which security personnel or contractors shall be hired, if any, to assist as needed. 12. This Agreement shall commence on the Effective Date and terminate on October 31 of each year and shall automatically renew for one-year terms, subject to continued funding by RENTER,unless the governing body of either party gives thirty(30)days'notice of its desire to terminate the Agreement ("Term"). 13. Either party to this Agreement shall have the right to terminate this Agreement, with or without cause, upon written notice to the other party at least thirty (30) days prior to the effective date of such termination. Termination shall be without any penalties and without further obligations upon the part of either party, other than those stipulated. If RENTER terminates this Agreement prior to the end of the Term, it shall not be entitled to a refund of the fees paid herein. 14. RENTER shall not make any additions or alterations to the Property or the improvements, fixtures, furnishings,and equipment owned by the College therein. At the end of each Usage Time, RENTER shall return the Property to the same condition as it was prior to such Usage Time. 15. The College reserves the right through its representatives to eject any person or persons who act in violation of the terms of this Agreement from the Property or any part of the Property or for any other reasonable basis as determined by the College, and upon the exercise of this authority, 16. DISCLAIMER OF LIABILITY. NEITHER PARTY NOR ANY OF ITS RESPECTIVE REGENTS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, OR ASSIGNS SHALL BE LIABLE OR RESPONSIBLE FOR ANY CLAIMS, LOSSES, DEMANDS, SUITS, COSTS, AND EXPENSES,AND OTHER FORMS OF LIABILITY INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES AND LITIGATION EXPENSES (EACH A "CLAIM") OR ANY INJURY TO ANY PERSON OR TO ANY PROPERTY (EACH A "LOSS") OF THE OTHER PARTY, OR SUCH PARTY'S REGENTS,OFFICERS,EMPLOYEES,AGENTS,MEMBERS, GUESTS,INVITEES,OR ANY THIRD PARTY,IN OR UPON THE PROPERTY OR PREMISES, RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY,THEFT, OR VANDALISM. -3- The Parties understand that the College shall not have a lifeguard on duty and shall not provide any supervision of the RENTER's use of the Pool. RENTER and its invitees shall use the Pool at their own risk. RENTER is responsible for providing any lifeguard or other pool safety measures. All swimming pool rules as posted apply during RENTER's use. All individuals using the pool under this Agreement must sign a waiver in the form attached as Exhibit"B". 17. Survival of the College Disclaimer. THE COLLEGE's DISCLAIMER OF LIABILITY AS SET FORTH IN THIS AGREEMENT SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. 18. This Agreement provides RENTER only with the right and privilege to enter and use the Property during the Usage Time for the Purpose and in the manner set forth in this Agreement. Nothing herein is intended to grant to RENTER the exclusive right to occupy or use the Property. 19. RENTER warrants that it shall have all necessary and appropriate licenses and permits to use the Property for the Purpose, including without limitation that it has all such licenses and permits as required by state and local law and that it has all required copyright, trademark and other such similar licenses. The provisions of this paragraph arc material to this Agreement. 20. Absent prior written authorization, RENTER may not use or reference the College's name or logo on RENTER's promotional materials,in advertising to the general public or otherwise other than as permitted in advance in writing by the College at its sole discretion. 21. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between RENTER and the College,or by or between any employee or agent of the College or RENTER. This Agreement does not create a joint venture, business partnership or agency relationship between the parties. 22. This Agreement represents the entire agreement and understanding between the Parties as to the subject matter herein and supersedes all previous agreements or understandings between the Parties,whether verbal or written. This Agreement may not be altered or amended except by written agreement signed by both Parties. 23. This Agreement shall be governed interpreted by,and construed in accordance with the laws of the State of Texas without regard to its choice of law provisions. The Parties agree this Agreement shall be performed primarily or exclusively in Harris County, Texas, and exclusive venue for any dispute relating to this Agreement or the subject matter hereof shall be in a court of competent jurisdiction located in Harris County, Texas. 24. This Agreement shall not be assignable by RENTER in whole or in part without the prior written consent of the College. -4- 25. Any provisions of this Agreement that shall prove invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provision shall remain in full force and effect. 26. The College and RENTER each represent that it has the authority to execute this Agreement and to perform its obligations under this Agreement. By signing below,the person executing this Agreement warrants and represents that he or she has the authority to do so and agrees to assume individual liability if not so authorized. 27. The College makes no representations that the Property is safe or suitable for the intended use. The College assumes no responsibility for improving, altering, or maintaining the Property to meet RENTER's requirements. 28. Neither party shall be liable for any delays resulting from acts of God, strikes, riots, acts of war, epidemics, or governmental regulations. 29. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of RENTER and shall be binding upon and inure to the benefit of College's legal representatives, successors, and assigns. 30. Nothing contained in this Agreement, including without limitation, any attachment, exhibit, or purchase order submitted pursuant to this Agreement shall operate to or be deemed as having waived any immunity to which the College or the RENTER is entitled under the law. This Agreement is executed below on _November , 2021 and entered into as of the Effective Date. THE LEE COLLEGE DISTRICT By(Please sign): Name: Dr. Lynda Villanueva Title: President of Lee College CITY OF BAYTOWN RENTER NAME By(Please sign) _ Name: Title: -5- Exhibit A *Date(s): December 19—21,2021 Time(s): Sunday—Tuesday, 9:00 a.m.--8:00 p.m. Purpose(s): Lifeguard Training Location(s): Lee College Swimming Pool/Gym Classroom 129 *Dates and times shall be revised by the parties in writing for any subsequent year. -6- Exhibit B WAIVER AND REALEASE OF LIABILITY FORM BY SIGNING THIS DOCUMENT YOU WILL WAIVE CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE I, the undersigned, wish to use the Lee College Swimming Pool as part of the City of Baytown lifeguard training program. I recognize and understand that using the Swimming Pool involves certain risks. Those risks include,but are not limited to,the risk of injury resulting from possible malfunction of the equipment used in the pool and injuries resulting from tripping or falling over obstacles in the pool area. In consideration of using the Swimming Pool, I hereby agree as follows: 1. TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against Lee College or the City of Baytown, their respective directors, officers, regents, officers, employees, agents and representatives (all of whom are hereinafter referred to as "the Releasees"); 2. TO RELEASE THE RELEASEES from any and all liability for any loss, damage, injury or expense that I may suffer or that my next of kin may suffer as a result of my participation at the Swimming Pool due to any cause whatsoever, INCLUDING NEGLIGENCE ON THE PART OF THE RELEASEES; 3. TO HOLD HARMLESS AND INDEMNIFY THE RELEASEES from any and all liability from any damage to property of, or personal injury to, any third party, resulting from my participation at the Swimming Pool; 4.That this Agreement shall be effective and binding upon my heirs and assigns, in the event of my death. I HAVE READ AND UNDERSTOOD THIS AGREEMENT, AND I AM AWARE THAT BY SIGNING THIS AGREEMENT I AM WAIVING CERTAIN LEGAL RIGHTS WHICH I OR MY HEIRS AND ASSIGNS MAY HAVE AGAINST THE RELEASEES. (Please print name clearly) Date of Birth Address Parent/Guardian if participant is under 18 City, State Postal Code Phone Number Participant's Signature & Date Signed Witness & Date Signed PLEASE READ CAREFULLY!