112-10 - agreement

112-10 May 25, 2010 LICENSE AGREEMENT FOR LIMITED USE OF POOL FACILITIES THIS AGREEMENT, effective May ___, 2010 upon full execution by all parties, between: Township of West Orange, as Licensor ("Township" or "Licensor") and The Montclair YMCA, as Licensee ("Montclair Y" or "Licensee") WHEREAS, the Montclair Y runs a competitive swimming program in the summer and requires pool time for the same; and WHEREAS, the Township owns a certain outdoor pool and surrounding facility in the Township located at 60½ Cherry Street, West Orange, New Jersey ("Pool Facility"). WHEREAS, the Montclair Y is desirous of using West Orange’s outdoor swimming pool and changing room facilities; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: 1. License Date and Effective Date of Agreement. This License is made with an effective date of May ___, 2010 ("Effective Date"). This Agreement shall not be effective until the Township receives a copy of this Agreement executed by the President of the Board of Trustees or Executive Director of Licensee and the required insurance certificate approved by the Township Attorney along with a Resolution evidencing approval by the Licensor's Township Council. 2. Description of Agreement Premises. The premises licensed by Township to Licensee includes the pool and locker rooms located at 60 ½ Cherry Street in the Township of West Orange, New Jersey ("Premises"). 3. Term. The term of this License shall be from May 26, 2010 through August 20, 2010. 4. Licensee's Use. Licensee shall use the Premises for swim practices and not for any other use. The hours of use will be 6:00 a.m. until approximately 7:45 a.m. Monday through Friday. Assigned days and hours are subject to change during the period of this agreement if West Orange activities mandate such change. In the event of a conflict with a Township activity where pool and changing room use is required, the Township shall contact the Senior Aquatics Director of the Montclair Y as soon as the conflict is evident. No alternate arrangements need be made. 5. Fee and Insurance. A fee shall be payable in the amount of $60.00 per hour plus the expense of an assistant manager or other authorized individual employed by the Township who must be onsite at all times during Licensee's use of the Premises. Licensee agrees to maintain public

us the expense of an assistant manager or other authorized individual employed by the Township who must be onsite at all times during Licensee's use of the Premises. Licensee agrees to maintain public liability insurance naming itself and Township as named insured in an amount not less than one million ($1,000,000) dollars per occurrence and two million ($2,000,000)

2 dollars in the aggregate. The Montclair Y shall carry liability insurance with a minimum combined single limit of One Million ($1,000,000.00) dollars for bodily injury and property damage. The Montclair Y shall provide the original of a Certificate of Insurance to this effect upon signing this agreement. Further, the Montclair Y represents that all participants and staff have additional medical insurance and emergency room coverage under a policy provided through United States Swimming ($10,000,000.00) and will provide a copy of that documentation included with this signed agreement. 6. Indemnification. Licensee shall indemnify and hold harmless Licensor including attorneys fees and expenses from any claims arising from Licensee's use of the Premises. 7. Usage. Licensee shall comply with all state and local laws, regulations, codes and ordinances. In addition, Licensee shall comply with all Township pool rules as shall be promulgated from time to time by the Township. Licensee hereby acknowledges receipt and full understanding of all current pool rules. 8. Hours of Licensee Use. Licensee shall be permitted to use the Premises during the hours of 6:00 a.m. until 7:45 a.m. Monday through Friday during the term set forth above. Any other hours of use shall be subject to prior written request and approval by the Township. L icensee may not use the Premises at any time without the Licensor’s authorized representative present. 9. Licensee's Care. Licensee will commit no act of waste, will take good care of the Premises, and will comply with all laws, regulations, rules, and orders of any federal, state, or local government agencies or departments. Licensee will do nothing that may potentially increase the cost of Township's fire or public liability insurance. 10. Staffing/Supervision & Safety: Licensee shall provide a certified swim coach (USAS) for all competitive swimming activities and shall also provide a certified pool manager (CPO) to properly open the pool and assure its safety for participants. It shall be the r esponsibility of the Licensee to ensure the safety of its staff and all participants and to ensure that all staff and participants are properly trained in safety and health procedures and concerns. The Licensee shall immediately report any incidents to West Orange in writing and shall provide West Orange with a written incident report. The

ly trained in safety and health procedures and concerns. The Licensee shall immediately report any incidents to West Orange in writing and shall provide West Orange with a written incident report. The Licensee shall assume all liabilities of injuries resulting from swim team related activities. 11. Lifeguard: A fully certified lifeguard shall be present at all times. The Licensee will pay all costs for providing the lifeguard and shall reimburse West Orange for the utilization of a West Orange staff lifeguard. 12. Repairs. Township will make all necessary repairs to the Premises at Township's expense except when the repairs are caused by the misuse or neglect by Licensee or by persons under Licensee's control or on the Premises at Licensee's invitation, in which even, Licensee shall make those repairs at Licensee's own expense. Licensee shall surrender the Premises in the same condition as they were at beginning of the term, reasonable wear and tear excepted. 13. Improvements. Licensee shall not cause any improvements, renovations or other work to be done at the Premises. All of Licensee's personal property shall be removed by Licensee on a daily basis upon the completion of Licensee's hours of use hereunder. 14. Abandoned Property. All of Licensee's property remaining on the Premises shall be deemed abandoned and the sole property of the Township.

3 15. Payment. All fees shall be paid within ten (10) days of the end of each month. 16. Services. The Township shall provide no services for Licensee's use except as specifically provided herein. Licensee agrees to place all garbage in a designated area. Township agrees to maintain the electrical, plumbing, HVAC and structural systems on the Premises. 17. Damage to Building. If the Premises are damaged by fire or any other cause, then Township may, give Licensee notice of election to terminate this Agreement. 18. Township May Terminate. If Licensee defaults in the performance of any covenant or condition of this Agreement, Township may, on written notice to Licensee terminate this Agreement. 19. Notices. Any notice by either party to the other shall be in writing and shall be deemed to be properly given only if delivered personally, telecopied, or mailed by registered or certified mail, return receipt requested, addressed (a) if to Licensee, at the above indicated location; (b) if to Township, at Township’s address set out in this Agreement; or (c) at such addresses as Licensee or Township from time to time may designate in writing. Notice shall be deemed to have been given upon delivery if delivered personally, and if mailed, upon the third day after the date of mailing. 20. Township’s Right to Inspect Premises. Township may enter the premises at any time without notice to Licensee to inspect the premises or make those repairs, replacements, and additions to the Premises as Township deems necessary or desirable. Licensee shall have no claim or cause of action against Township solely for entering the premises in accordance with the Paragraph. 21. Interruption of Services or of Occupancy. Interruption or curtailment of any service maintained on the Premises if caused by strikes, mechanical difficulties, or any other causes beyond Township’s control shall not entitle Licensee to any claim against Township or to any abatement in rent, nor shall they constitute constructive or partial eviction. 22. Elements of Construction Eviction. Licensee shall not be entitled to claim a constructive eviction from the Premises. 23. No Representations. Neither party has made any representations or promises, other than those contained in this Agreement or in some further writing signed by the party making the representation or promise. 24. Covenant of Quiet Enjoyment. Township

representations or promises, other than those contained in this Agreement or in some further writing signed by the party making the representation or promise. 24. Covenant of Quiet Enjoyment. Township covenants that as long as Licensee pays the rent and any additional rent required under this Agreement and performs Licensee’s covenants, Licensee shall peaceably and quietly have, hold, and enjoy the premises for the term provided, subject to the provisions of this Agreement. 25. Waiver of Jury Trial. To the extent waiver is permitted by law, the parties waive trial by jury in any action or proceeding brought in connection with this Agreement or the premises. 26. Captions. The captions in this Agreement are included for convenience only and shall not be taken into consideration in any construction or interpretation of this Agreement or any of its provisions. 27. No Assignment. The Licensee is not permitted to assign sublet or transfer any

4 aspect of this Agreement, in whole or in part, to any entity or person. 28. Agreement Binding on Successors, Representatives, and Assigns. The provisions of this Agreement shall apply to, bind, and inure to the benefit of Township and Licensee, their successors, legal representatives, and assigns. 29. Entire Agreement: This Agreement may not be modified except by written agreement signed by both of the parties hereto. IN WITNESS WHEREOF, the parties have hereunto executed this Agreement. MONTCLAIR YMCA Dated: ____________ Signed: TOWNSHIP OF WEST ORANGE Dated:____________ Signed: F:\WPDOCS\N-Z\WORANGE\YMCAMontclairAgreement2010.doc