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R2023-112 2023-05-08RESOLUTION NO. R2023-112 A Resolution of the City Council of the City of Pearland, Texas, authorizing termination of an Interlocal Agreement and authorizing a Facility Use Agreement with the Pearland Independent School District (“PISD”), associated with the joint use of the City’s Natatorium. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Termination Agreement by and between the City of Pearland and PISD, a copy of which is attached hereto as Exhibit “A” and made a part hereof for all purposes, is hereby authorized and approved. Section 2. That certain Facility Use Agreement agreement by and between the City of Pearland and PISD, a copy of which is attached hereto as Exhibit “B” and made a part hereof for all purposes, is hereby authorized and approved. Section 3. That the City Manager or his designee is hereby authorized to execute and the City Secretary to attest a Termination Agreement and a Facility Use Agreement with PISD. PASSED, APPROVED and ADOPTED this the 8th day of May, A.D., 2023. _______________________________ J.KEVIN COLE MAYOR ATTEST: ________________________________ FRANCES AGUILAR, TRMC, MMC CITY SECRETARY APPROVED AS TO FORM: ________________________________ DARRIN M. COKER CITY ATTORNEY DocuSign Envelope ID: 6F704F1B-E404-40D7-BE92-58353B87BDF9 DocuSign Envelope ID : DD668F20-3370-4893-8082-0C1 C66524194 Exhibit "A" TERMINATION AGREEMENT TIDS TERMINATION AGREEMENT ("Agreement") is made this 8 day of May , 2023, between the Pearland Independent School District ("District") and the City of Pearland ("City"); collectively the "Parties." Whereas , the Parties are presently bound by an Interlocal Agreement ("Interlocal") with an effective date of October, 1, 2007 that governs the rights and responsibilities of the Parties associated with the joint use of the City's Natatorium; and Whereas , the Parties wish to terminate the Interlocal and resolve any and all rights and obligations arising out of the Interlocal. IN CONSIDERATION OF and as a condition of the Parties entering into this Agreement and other valuable consideration, the receipt and sufficiency of which consideration is acknowledged, the Parties agree as follows: I. Mutual Termination-By this Agreement the Parties mutually terminate and cancel the Interlocal effective on the signing of this Agreement by both Parties ("Effective Date"). 2 . Consideration-As consideration for termination of the Interlocal, City and District shall enter a separate Facility Use Agreement for District's use of the City's Natatorium , and District shall provide a one-time early termination payment to City, in the amount of three million five hundred thousand dollars ("$3,500,000.00"). District shall deliver the early termination payment to City on or before July 1, 2023. 3. Outstanding Obligations-The Parties acknowledge by this Agreement that the consideration provided and received by each other is fair, just, and reasonable and that no further consideration , compensation or obligation will be due , payable or owing with regard to the Interlocal as of the execution date of this Agreement. 4 . Release-By this Agreement the Parties release each other from all claims, causes of action , demands and liabilities of whatever nature which either Party had in the past, has now or may have in the future arising from or related to the Interlocal. 5. Miscellaneous Provisions: a) This Agreement may be executed in counterparts. Facsimile signatures are binding and are original signatures . b) If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the Parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result. DocuSign Envelope ID : DD668F20-3370-4893-B082-0C1 C66524194 c) This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Parties and their respective successors , assigns , executors, administrators, beneficiaries, and representatives. d) All of the rights , remedies and benefits provided by this Agreement will be cumulative and will not be exclusive of any other such rights, remedies and benefits allowed by law. e) The Parties submit to the jurisdiction of the courts of the State of Texas for the enforcement of this Agreement. This Agreement will be enforced or construed according to the laws of the State of Texas. Pearland Independent School District City of Pearland Trent Epperson , Interim City Manager FACILITY USE AGREEMENT BETWEEN THE CITY OF PEARLAND AND PEARLAND INDEPENDENT SCHOOL DISTRICT Exhibit "B" This Agreement is dated and effective as of the say signed by the parties hereto, CITY OF PEARLAND, TEXAS, acting by and through its Director of Parks & Recreation, Carry Capers ("City") and PEARLAND INDEPENDENT SCHOOL DISTRICT ("District") acting by and through Larry Berger, Superintendent. RECITALS WHEREAS, City and District both understand the need to provide access to quality aquatic programs; and WHEREAS, the City is committed to use its facilities to provide quality swimming, diving and water polo training opportunities for the community; and WHEREAS, the City and District both appreciate the benefit of providing student athletes opportunities to participate in aquatic sports; and WHEREAS, City and District, are committed to promoting team camaraderie, time management, self-discipline, goal setting, physical education, team building, good sportsmanship, and positive social interactions; and Whereas, City and District desire to enter into this Facility Use Agreement for District's use of the Pearland Natatorium . NOW THEREFORE, City and District, agree as follows: 1) City shall: • Retain the services of a pool manager to manage pool activities, • Pay all operational costs of the facility, • Pay all maintenance and repair costs of the facility, • Provide City Lifeguards for supervising the natatorium and pools with lifeguard duties primarily focused on Recreation Center and Natatorium members and City program participants, • During District meets/events City will provide lifeguard supervision and invoice District quarterly for related cost, • Provide custodial porters during meets/events and invoice District quarterly for related cost, • City shall, at no cost to District, offer and host a Red Cross lifeguard certification class for District coaches and instructors, • Provide District with priority scheduling, meaning district will have the first opportunity to schedule practices and meets. • Meet with District annually, on or before July 15 1h, to schedule practice and meet dates and times, • Work with all user groups to maximize facility utilization, • Work with District, once meets and practices have been scheduled, to accommodate changes; however, other rentals will not be cancelled to accommodate District's schedule changes, • Coordinate with District to protect against closures for maintenance and upkeep that may cause the cancellation of a District swimming, diving, or water polo practice or competition, • Notify District promptly of any scheduled and/or unexpected closures for maintenance, • Permit District to display school banners, mascots, and other signs at the facility, • Allow District to display District awards in facility display case, • Provide up to 20 lockers in the women's locker room and 20 lockers men's locker room during swimming season for District's use, • Provide district coaches access to office space at the facility if needed, • Provide shared access to storage areas for district equipment in storage area 1 (closest to pump room) and limited outdoor space, • Provide access to judge's platform and meet room for training and meets, • Provide access to timing equipment during meets, • Evaluate and update facility Use Fees every three years based on current rental rates, • Notify District of Use Fee increases a minimum of fifteen (15) months prior to the end of a Term . 2) District shall: • Pay an annual Use fee in the amount of $122,000 ("Use Fee ") for Districts use of the Natatorium, • Provide City practice and meets schedules on or before July 15 t h, • Coordinate with City to maximize facil ity utilization by implementing effective practice schedules and strategies, • District shall provide a certificate of insurance naming the City as an additional insured for comprehensive general liability with minimum limits of $1,000,000 for injury or death of any one person, $1 ,000,000 for each occurrence, and $1,000,000 for each occurrence of damage to or destruction of property. The City will provide property insurance for the Facility in accordance with the State of Texas requirements . The insurance required by this paragraph shall provide coverage for the entire duration of all associated activities conducted by District . • To the extent permissible by law, the District will hold the City harmless from third party claims related to injuries or damage to property related to the use described herein; however, nothing in this Agreement shall be interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits, defenses, or protections provided to either party including but not limited to those provided under governmental or sovereign immunity laws enacted to protect such entity. • Monitor District's athletes and coaches while at the facility to ensure compliance with facility rules and guidelines, • Provide Red Cross certified lifeguards to guard the district's athletes during practices, • Notify City promptly of any cancellations or schedule request changes. 3) Term • The initial term of this Agreement shall be 3-years ("Initial Term ") and shall automatically renew at the end of the Initial Term for additional 3-year term ("Renewal Terms ") unless either party provides the other party a written Notice of Termination no less than one (1) year prior to the expiration of a Term . • If this Agreement is terminated by District during the first 2 years of any 3-year term , the Use Fee for the entire remainder of the Term shall be due and payable with i n thirty (30) days of the City's receipt of the Notice of Termination . • If this Agreement automatically renews and is subsequently terminated by District prior to the beginning of the renewal 3-year term, District shall make a Use Fee payment to City, equal to the remainder of the existing term and the 3-year renewal term (not to exceed 4 years), within 30 - days of the City's receipt of the notice of termination . This Agreement shall be binding and deemed effective date when executed by all parties . CITY OF PEARLAND 3519 Liberty Drive Pearland , TX 77581 281.412 .8900 Carry Capers Director of Parks & Recreation Date : May 8, 2023 PEARLAND INDEPENDENT SCHOOL DISTRICT 1928 N. Main St . Pearland, TX 7758 1 281.485 .3203 Bv d!~v~ ' Larry Berger Superintendent, Pearland ISO Date : --~--_\_7 _-_d--_) ____ _