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HomeMy WebLinkAboutGPOA Exercise Room Agreement (Gilroy Police Officers Association) GPOA EXERCISE ROOM LICENSE AGREEMENT 1. Parties. This License Agreement ("License"), is entered into by and between the City of Gilroy, a municipal corporation ("Licensor" or "City"), and the Gilroy Police Officers' Association Incorporated ("Licensee" or "GPOA"), for the GPOA's use of a room at 7301 Hanna Street, Gilroy, California. 2. Grant of License. City is the owner of certain property situated in the City of Gilroy at 7301 Hanna Street (the "Building"). In consideration of respective terms and covenants described herein, the City hereby grants to the GPOA a non-exclusive, revocable license to use a room in the Building, as further described in Exhibit "A" attached hereto (referred to herein as the "Licensed Premises"), exclusively for the following uses: use of weights and exercise machines; and use for exercising and stretching (expressly excluding sparring of any kind). Any additional uses beyond those expressly described herein shall be subject to the prior written approval of the City, which approval may be withheld in City's sole and absolute discretion. 3. Condition of Licensed Premises. The GPOA agrees that the Licensed Premises are licensed in an "As Is" condition, without representation or warranty of any kind, express or implied. Upon its execution of this License, the GPOA shall be deemed to have accepted the Licensed Premises as being in good and sanitary working order, condition and repair and to have accepted the Licensed Premises in its existing conditions, subject to all applicable laws, covenants, restrictions, easements and other matters of public record. GPOA acknowledges that neither City nor City's agents have made any representation or warranty as to the suitability of the Licensed Premises for GPOA's intended use, the condition of the Licensed Premises, or the use or occupancy which may be made of it. GPOA has independently investigated the Licensed Premises and is satisfied that the Licensed Premises is suitable for GPOA's intended use. 4. Use of Licensed Premises; Duties and Responsibilities. 4.1 Users. The Licensed Premises shall be made accessible to and may be used by only the following persons: GPOA members and ongoing full-time and part-time City of Gilroy employees whose office is located in the Building, excluding IT staff and custodial/janitorial staff (collectively, "Users"). Users will not include contract, temporary or retired employees. Users may only use the Licensed Premises while off-duty, unless otherwise specifically authorized in writing by a City department head or designated command staff member to use in furtherance of the employment requirements of such User. City may not authorize any person other than a User to use GPOA's exercise machines or equipment without the prior written consent of GPOA. 4.2 Access. The Licensed Premises shall be kept locked at all times. The Licensed Premises shall be accessed by the key cards that the City regularly issues to City employees who work in the Building. GPOA shall have no right to issue or activate key cards. A keycard-Iocking door shall be installed on the Licensed Premises prior to any person using it for exercise or workout purposes, the cost of which shall be paid for by the City. Prior to \MDOLlNGER\743234.4 121007-04706083 -1- activating any person's keycard for access to the Licensed Premises, the City must receive a fully executed waiver and release (as more fully described in paragraph 10.1, below), from that User. 5. Maintenance of Licensed Premises. The City shall provide basic janitorial services to the License Premises, not more frequently than these services are regularly provided by City for the remainder of the Building, and shall otherwise keep the Licensed Premises in good order, condition and repair in a clean, attractive, safe, and fully operative condition at all times. In no event shall City have any repair or maintenance responsibility except as expressly set forth in this License. 6. Utilities. City shall pay for electric service to the Licensed Premises. Any other services and utilities needed by GPOA are subject to the prior approval of City, which approval may be withheld in City's sole and absolute discretion. City shall not be liable in damages or otherwise for any failure or interruption of any utility or service being furnished to the Licensed Premises and no such failure or interruption shall affect City's obligations under this License. City and GPOA agree to cooperate with the efforts of any governmental authorities or utility suppliers in reducing energy or other resource consumption. 7. Machines and Equipment. 7.1 GPOA may install exercise and weight machines and equipment with the prior written consent of City, which approval may be withheld in City's sole and absolute discretion. Any exercise and weight machines and equipment installed by GPOA in the Licensed Premises shall remain the GPOA's sole property and may be removed by GPOA at any time. 7.2 The City shall be solely responsible for maintammg, cleaning, and repairing all GPOA machines and equipment that City permits GPOA to install in the Licensed Premises. The City shall conduct quarterly safety checks of all machines and equipment, and shall maintain written records of such safety checks. City shall have no liability for damage, including damage caused by normal wear and tear, to GPOA machines and equipment. GPOA represents and warrants that the exercise machines that it will initially install in the Licensed Premises are covered by manufacturer warranties that benefit City, and GPOA agrees to cooperate with City in making any claims under such warranties. 7.3 The City may temporarily suspend this License, in whole or in part, and temporarily move and/or remove any machines or equipment for any purpose and at its sole cost and expense (including storage costs), upon fourteen (14) days' written notice to GPOA. Such notice may be given by City at any time without cause. At the conclusion of the temporary move, the City shall replace any and all equipment and machines to their original locations at City's sole cost and expense. The City shall be solely liable for any damages or injury to any person or property, resulting from the City's moving of GPOA machines or equipment. Any temporary removal of machines or equipment or suspension of this License shall not constitute a termination or revocation of this License. \MDOLlNGER\743234.4 121007-04706083 -2- 8. Alterations. GPOA shall not make any alterations or additions to the Licensed Premises without the prior written consent of City, which approval may be withheld in City's sole and absolute discretion. 9. Fixtures. Upon prior written consent of City, which consent may be withheld in City's sole and absolute discretion, GPOA may install and affix on the Licensed Premises improvements, trade fixtures, fixtures, furniture, furnishings and equipment (collectively, "Fixtures") for GPOA's use relating to the purpose of this License. Such Fixtures installed in the Licensed Premises shall remain the property of GPOA, and shall be removed at the termination of this License, unless City agrees in writing to allow such Fixtures to remain on the Licensed Premises. Any damage to the Licensed Premises caused by the removal of the Fixtures shall be repaired by GPOA at its sole cost and expense. Should GPOA leave Fixtures on the Licensed Premises without permission of the City for a period exceeding fourteen (14) days after the termination of this License ("Removal Period"), such Fixtures shall be deemed abandoned by GPOA and shall, at City's discretion, become the property of City as owner of the real property to which they are affixed. In the event that City elects to take ownership of such fixtures, City shall so inform GPOA in writing at the address most recently provided by GPOA for it to receive notices. Whether City elects to take ownership of the Fixtures or to allow the GPOA to maintain ownership thereof, if GPOA leaves the Fixtures on the Licensed Premises beyond the Removal Period without prior written permission of City, City will have the right to remove and dispose of the Fixtures without any liability to GPOA. In such event, GPOA shall be responsible for reimbursing City for all of the costs and expenses incurred by the City as a result of City's removing, moving, disposing of and/or storing such Fixtures and repairing any damage to the Licensed Premises caused thereby. 10. Waivers and Training. 10.1 All Users shall sign and date a waiver and release of liability, in substantially the same form as that attached hereto as Exhibit "B", prior to using the Licensed Premises. City shall be responsible for obtaining such waivers. City shall make copies of such waivers available to GPOA within ten (10) days of GPOA' s written request. 10.2 Prior to using the Licensed Premises, all Users must complete an orientation/training session administered by the City, in which Users are instructed on the proper and safe operation of all GPOA machines and equipment. The City shall maintain a written record of the names of all persons trained, the names of the person who administered the training, the date of the training, and the date each User signed the waiver and release described herein. City shall make such records available to GPOA within ten (10) days of GPOA's written request. 10.3 The City shall maintain a written sign-in sheet on the Licensed Premises at all times. City shall make such records available to GPOA within ten (10) days of GPOA's written request. \MDOLlNGER\743234.4 121007-04706083 -3- 11. Music. Music or other amplified sound shall only be permitted in the Licensed Premises to the extent that it is played at a low level such that it cannot be heard in any other area of the Building or inside neighboring buildings or facilities. 12. Rules and Policies. The City shall implement rules governing the User's use of the Licensed Premises that are necessary and consistent with the terms of this License. Such rules (or a summary thereof), shall initially be in substantially the same form as Exhibit "c" hereto, and shall be posted in a conspicuous place on the Licensed Premises at all times. The City shall give GPOA reasonable notice and an opportunity to suggest changes or additions to such rules prior to the City's adoption of changes and/or additions, which may occur from time to time. 13. License Nonassignable. This License is personal to the GPOA and shall not be assigned. Any attempt to assign this License shall automatically terminate it. No legal title, easement, or Leasehold interest in the Licensed Premises is created or vested in the GPOA by the grant of this License. 14. Revocation. The City may revoke this License at will by having a written revocation notice delivered to the GPOA at least thirty (30) days prior to the termination date specified in the notice. 15. Termination of Occupancy. After receipt of notice of termination from the City, GPOA, on or before the effective date of termination specified in that notice, shall remove all of GPOA's personal property, including exercise equipment and machines, and fixtures, from the Licensed Premises and shall surrender possession of the Licensed Premises to the City in good order and repair to the satisfaction of City, normal wear and tear excepted. Any exercise equipment, machines or fixtures that are not removed from the License Premises by GPOA within fourteen (14) days after the termination of this License shall be deemed abandoned by GPOA and shall, at City's discretion, become the property of City as owner of the real property to which they are affixed. In the event that City elects to take ownership of such fixtures, City shall so inform GPOA in writing at the address most recently provided by GPOA for it to receive notices. 16. Notices. The City's address for notices and payments due from GPOA shall be 7351 Rosanna Street, Gilroy, California 95020, Attention: Human Resources DirectorlRisk Manager, which address may be changed from time to time by giving GPOA written notice of such change. GPOA's address for notices shall be c/o GPOA President, 7301 Hanna Street, Gilroy, California 95020. 17. Damage and Destruction. City shall have no obligation to rebuild, restore or repair all or a portion of the Licensed Premises in the event of any damage or destruction thereto. In the event of damage or destruction to the Licensed Premises City shall have the option to terminate this License immediately. 18. Insurance. The City shall, at no cost to GPOA, obtain and maintain throughout the effective period of this License, general liability insurance with minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or \MDOLlNGER\743234.4 121007 -04706083 -4- disease, or death to any person, and damage to property, including the loss of use thereof, arising from or related to any person's use of the Licensed Premises for any purposes. Such policies shall provide coverage on an occurrence basis and not on a claim made basis. In no event shall the limits of such policies be considered as limiting the liability of City under this License. 19. Personal Iniury and Property Damage. Unless otherwise expressly provided herein, City shall not be liable for any injury or damage to persons or property resulting from any cause whatsoever, unless caused by or due to the sole negligence or willful misconduct of City. City shall have no responsibility to ensure that the Licensed Premises and any Users are protected against theft, physical injury, loss or damage. 20. Condemnation Award. Any award for the taking of all or any portion of the Licensed Premises under the power of eminent domain shall be the property of City, whether such award shall be made as compensation for diminution in value of this License or the taking of the fee, and the GPOA shall have no right to recover any portion of such award. In no event shall City be obligated to make any repairs or perform any restoration or other work required as a result of a taking. 21. Right of Entry. City and its agents shall have free access to the Licensed Premises at all times for any purpose other than for exercise and working out, unless otherwise provided in this Agreement. 22. General. 22.1 Interpretation of Terms. Words in the neuter, masculine and feminine gender include the other when the context so requires. 22.2 Governing Law. This License shall be construed and enforced m accordance with the laws of the State of California. 22.3 Partial Invalidity. In the event that any provision of this License shall in any respect be declared invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or condition of this License, and this License shall be interpreted as though such invalid, illegal or unenforceable term or condition was not a part hereof. 22.4 Construction of License Provisions. This License shall not be construed either for or against GPOA or City, but shall be construed in accordance with the general tenor of the language to reach a fair and equitable result. 22.5 No Partnership or Joint Venture. Nothing in this License shall be construed as creating a partnership or joint venture between City, GPOA, or any other party, or cause City to be responsible for the debts or obligations of GPOA or any other party. 22.6 Attornevs' Fees. In the event of any legal action between the parties in connection with this License, the prevailing party shall be entitled to recover all reasonable costs and expenses, including reasonable attorneys' fees incurred in such action. \MDOLlNGER\743234.4 121007 -04706083 -5- 23. Condition Precedent to License. This License shall have no binding effect on the parties unless executed by both City and GPOA and a fully executed copy is delivered to City. 24. Entire Agreement. This License constitutes the entire agreement between the Parties with reference to the subject matter hereof, and all previous negotiations and understandings between the Parties are merged into this License. In entering into this License, no party has relied upon any statement, representation or agreement made by any other party to this License or made by anyone else, other than the statements, representations, and agreements expressly set forth herein. 25. Effective Period. This License shall become effective on the date both parties have executed this License. IN WITNESS WHEREOF, the parties have executed this License effective on the date set forth below. CITY: Dated: Id-.. -~.() - 07 .6 , municipal cCi?rporation 1 \J ./ --.,'"--"~:~ . , APPROVED AS TO FORM: ~. &_f(?} Linda Callon, City Attorney GPOA: Dated: ~()8' GIRLOY POLICE OFFICERS' ASSOCIA nON By: Its: 6~ n.-IQ-07 GP;A-,v 'VlO \MDOLlNGER\743234.4 121007-04706083 -6- EXHIBIT A Property Description \MDOLlNGER\743234.4 121007-04706083 -1- WAIVER AND RELEASE In consideration for my use of the exercise room located at 7301 Hanna Street, Gilroy, California, (the "Gym"), I hereby agree to release and discharge the Gilroy Police Officers' Association Incorporated, its officers, managers, employees, members, and agents (collectively, the "GPOA"), and the City of Gilroy, its officers, managers, employees, and agents (collectively, the "City"), on behalf of myself my heirs and assigns (including my spouse and children, if any), assigns, personal representatives and estate, as set forth below. I do also hereby release all of those mentioned and any others acting upon their behalf from my responsibility or liability for any injury or damage to myself, including those caused by the negligent act or omission of any of those mentioned or others acting on their behalf or in any way arising out of or connected with my use of the equipment at the Gym. (PLEASE INITIAL: ) I. I understand and am aware that strength, feasibility, and aerobic exercise, including the use of weights and other exercise equipment is a potentially hazardous activity with known as well as unanticipitated risks that could result in physical or emotional injury, paralysis, death, or damage to myself, to property, or to third parties. I understand that such risks simply cannot be eliminated without jeopardizing the essential qualities of these activities. I hereby acknowledge that I am voluntarily participating in these activities and using equipment and machinery with knowledge of the potential damages involved. I hereby agree to expressly assume and accept any and all risks of injury or death connected with my use of the equipment at the Gym. (PLEASE INITIAL: ) 2. I do hereby further declare myself to be physically sound and suffering from no condition, impairment, disease, infirmity, or other illness that would prevent my use of equipment or machinery except as hereinafter stated. I do hereby acknowledge that I have been, or am hereby, informed of the advisability of receiving a physician's approval for my participation in an exercise/fitness activity or in the use of exercise equipment and machinery. I also acknowledge that it has been recommended that I have a yearly or more frequent physical examination and consultation with my physician as to physical activity, exercise, and use of exercise and training equipment so that I might have recommendations concerning these fitness activities and equipment use. I acknowledge that I have either had a physical examination and have been given a recommendation from my physician that such participation would have no detrimental effects on my physical condition, or that I have decided to participate in an activity and/or use of equipment and machinery without the such recommendation from my physician and that my waivers and releases set forth herein are done knowingly, with full knowledge of the fact that a program of strength, feasibility, and/or aerobic exercise should be undertaken under the supervision of a physician. (PLEASE INITIAL: ) 3. I expressly agree and promise to accept the responsibilities and assume all of the risks involved in using weights, exercise machines and exercise equipment at the Gym, and using the Gym for all other exercise activities, and I elect to participate in spite of these risks. To the extent permitted by law, I hereby voluntarily release, forever discharge, and agree to indemnify and hold harmless the GPOA and the City from and against all claims, demands, or causes of action, which are in any way connected with my use of the Gym for any purposes including, but not limited to, my use of weights and/or exercise machines, exercise equipment and Gym facilities. This waiver and release of liability includes, without limitation, claims for injuries or damages that may result from the following: (a) negligent acts or omissions of the GPOA or the City; (b) malfunctioning or broken equipment or machines; (c) improper maintenance of exercise equipment, machines or facilities; (d) negligent instruction or supervision by GPOA or the City, (e) slips and/or falls while in the Gym for any purposes or in common areas outside of the Gym that are due to my activities inside the Gym (e.g., perspiration on the floor); (f) any loss or theft of any personal property; and (g) negligent or intentional acts or omissions by other Gym users. (PLEASE INITIAL: ). \MDOLlNGER\731137.7 121007-04706038 4. Unless otherwise expressly authorized in writing by a City department head or designated command staff member: (a) I expressly agree and understand that I may not use the Gym while on-duty and that my use of the Gym shall be deemed to be during time when I am off-duty; and (b) I represent that my use of the Gym is not part of my work-related duties and is not the result of a reasonable expectancy of, or an express or implied requirement of, my employment. (PLEASE INITIAL: ) 5. As applicable to any workers' compensation claims that I may bring against the City alleging illness or injuries that were allegedly caused by my use of the Gym, I expressly agree that there shall be NO presumption that my injuries were suffered during the course and scope of, or arose out of, my employment by City by virtue of the fact that the Gym is located at my workplace or on City property. (PLEASE INITIAL: ) 6. I certify that I have been trained on the proper and safe use of the weights, exercise machines and exercise equipment at the Gym prior to using them. I agree to follow all rules and policies for use of the Gym that may be implemented by the City, whether posted or otherwise. (PLEASE INITIAL: ) 7. I certify that I have health, accident and liability insurance to cover any bodily injury or property damage I may suffer while participating in these activities at the Gym, or else I agree to bear the costs of such injury or damage myself. (PLEASE INITIAL: ) 8. Should the GPOA or the City, or anyone acting on their behalf, be required to incur attorney's fees and costs to enforce this Waiver and Release, I agree to indemnify and hold them harmless for all such fees and costs. (PLEASE INITIAL: ) 9. I acknowledge that I have carefully read this Waiver and Release and fully understand that it is a release of liability that includes, without limitation, my waiver of certain rights to bring legal actions or claims against the GPOA or the City related to my use of the Gym. (PLEASE INITIAL: ) I hereby represent that I have carefully read and I understand the contents ofthis Waiver and Release and I agree to the above terms of my own free will. Dated: [Print Name) [Signature) \MDOLlNGER\731137.7 121007-04706038 rLJ. ~ ~ u ~ ~ o ~ Q Z -< rLJ. ~ ~ ~ ~ ~ ~ ~ ~ = J.. - .... ~~ ~ ~ = = ..... c': .... = u .... -e ~ = a~ .... = ~ ~ t:-e = = Q.,= -e~ =~ = I:J) ~ .5 a-e .... = .....- ..!. ~ - = = .... -..... I:J)= = = .... ,.. =..... I:J)~ = ~ =..c -eoo = = = = l:'-l = J.. = ~= ,.Q~ a= ~~ at'-- ..... -< = o~ ~~ ~ ~ ~.s ,.Q ~ ~ ; ~ l:'-l Z ~ o~ ~ -e = ~ ~ l:'-l l:'-l = = ~-= ,.Q ~ ~l:'-l = ~ a ~ = a"Q.. 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