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Steven H. Schwartz, Esq. - State Bar No. 94637
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sschwartz@sj-law.com
2 Noel E. Macaulay, Esq. – State Bar No. 121695
nmacaulay@sj-law.com
3 SCHWARTZ & JANZEN, LLP
12100 Wilshire Boulevard, Suite 1125
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Los Angeles, California 90025
5 Telephone: 310.979.4090
Facsimile: 310.207.3344
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7 Attorneys for Defendants and Cross-Defendants WASCO TIGER SHARKS SWIM CLUB and HDI
8 GLOBAL SPECIALTY, SE
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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11 FOR THE COUNTY OF KERN, METROPOLITAN DIVISION
12 TYNA POWELL, an individual CASE NO. BCV-22-100328
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Plaintiff Dept.: Bakersfield Division H
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v. DECLARATION OF JOAQUIN CASTILLO IN
15 SUPPORT OF WASCO TIGER SHARKS SWIM
WASCO RECREATION AND PARK CLUB AND HDI GLOBAL SPECIALTY, SE’S
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DISTRICT; CITY OF WASCO; COUNTY OF MOTION FOR SUMMARY JUDGMENT, OR IN
17 KERN; and DOES 1-50, inclusive THE ALTERNATIVE, FOR SUMMARY
Defendants. ADJUDICATION OF ISSUES AS TO THE FIRST
18 _____________________________________ AMENDED CROSS COMPLAINANT OF WASCO
WASCO RECREATION AND PARK DISTRICT RECREATION AND PARK DISTRICT’S MOTION
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FOR SUMMARY ADJUDICATION
20 Cross-Complainant
Date: April 17, 2024
21 v. Time: 8:30 A.M.
Dept.: H
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WASCO TIGER SHARKS SWIM CLUB, HDI
23 GLOBAL SPECIALTY SE, and DOES 1 to 20, Complaint Filed: February 10, 2022
Cross-Complaint Filed: April 19, 2022
24 Cross-Defendants.
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DECLARATION OF JOAQUIN CASTILLO
1 I, Joaquin Castillo, declare as follows:
2 A. BACKGROUND
3 1. From 2010-2014 and 2017-2022, I was the head coach of and for the Wasco Tiger Sharks
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Swim Club (“Swim Club”). In addition to being the head coach I was also the President of the Wasco Tiger
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Sharks Swim Club from 2020-2022. Moreover, and on June 19, 2021, the date of the incident, I was the
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person at the Swim Club running the swim meet in question, and in charge of and supervising those other
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volunteers assisting me. In addition, and as the head coach for the Swim Club, and the President of the
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organization at the time, I was the person who executed the operative Facilities Use Agreement (“FUA”)
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with the Wasco Recreation and Park District (“District”), and who interacted with the District during the
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2020-2022 period. I am also the person who conducted walk-throughs or inspections of the pool facilities,
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either with the District personnel or separately. As such, I was directly involved in all matters set forth
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below, have personal knowledge of, and can and do competently testify as follows:
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B. THE WASCO TIGER SHARKS SWIM CLUB
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2. The Wasco Tiger Sharks Swim Club is a non-profit club, which is open to children 4 years
16 old and up. It relies upon volunteers for its work, charging members of the Swim Club a fee to help cover its
17 expenses. It uses the community pool at the Barker Park in Wasco for its practices. It also holds an
18 annual (and occasionally twice annual) swim meet there. As it relates to the swim meet, the District
19 charged the Swim Club both a flat fee and a per swimmer fee.
20 C. BARKER PARK
21 3. Barker Park is a public park in the City of Wasco. Barker Park has a number of facilities,
22 including the community pool, the surrounding pool deck, immediately adjacent covered bleachers, three
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ball fields, a community hall, the District office, parking lots, a maintenance area, and a playground, as well
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a few covered “shelters” near the pool and ball fields, where anyone can sit down. The park also has
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cement pathways and, of course, acres of grassy areas and trees.
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DECLARATION OF JOAQUIN CASTILLO
1 D. THE LIMITED USE OF BARKER PARK BY THE SWIM CLUB
2 4. As we are a swim club, we are interested in, rent and sometimes use the community pool
3 and adjacent bleacher/s. The Swim Club is not interested in and does not rent the rest of the park. In
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particular, during practices and during the swim meet, we rent and use the fenced off and enclosed
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community pool (excluding the pool pump and filter areas, which we have no access to). To be clear, the
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community pool consists of the pool itself, the surrounding pool deck and the restrooms off the pool deck
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(hereinafter referred to in the aggregate as the “Community Pool”). The Community Pool is fenced in and
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separate from the rest of Barker Park. In addition, there are fenced in and covered bleachers immediately
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adjacent to the pool, which are available for anyone – including members of the public - who may want to
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watch the swimming. The entrances to the community pool and bleachers have concrete/cement walkways
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which lead to them.
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5. In addition – and like any member of the public – people having some connection with the
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swimming can sit down at the nearby covered shelters, or to put up small canopies and/or sit on lawn
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chairs and/or place a picnic blankets on the grass. I would add that insofar as the shelters are concerned,
16 the Swim Club was not using them on the day in question to sell merchandise or food or for any similar
17 purpose. The Swim Club does not tell or suggest to people what portions of the Barker Park anyone –
18 including members of the general public – should use. Other than making the covered bleachers available
19 to persons wanting to watch the swim meet, we are simply not involved in those decisions. We also do not
20 suggest the usage of, inspect, maintain, control or have responsibility for any other portion of Barker Park.
21 6. I am aware that the District is now asserting in its Cross-Complaint that it rented the “entire
22 park” to the Swim Club. That contention is absurd. To give but a few of the most obvious examples, the
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Swim Club would have had nothing whatsoever to do with the baseball fields, the community hall, the
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District office and many other portions of the park, nor would any member of the general public have been
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excluded from any portion of Barker Park during the swim meet, other then the fenced off area of the
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Community Pool itself. Moreover, I have rented out other facilities at Barker Park in the past, in various
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capacities, and separate rental agreements were prepared for each – it was never Barker Park as a whole.
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DECLARATION OF JOAQUIN CASTILLO
1 E. PLAINTIFF’S CLAIM AS TO THE CAUSE OF HER FALL
2 7. It is my understanding that Tyna Powell, the plaintiff, is claiming that she fell on July 19,
3 2021 at the Barker Park, when walking from a place where her son had set up a canopy and ice chest. She
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alleges that she was walking on the grass and towards the Barker Park playground. It is also my
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understanding that she contends that she fell as a consequence of hole in the ground in a shady area
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under a tree, which hole was located around and associated with a sprinkler valve assembly, and, because
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it was overgrown with grass, not visible. The pictures I have been shown from her deposition depict a fall
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location that was not part of the Community Pool, or any area for which the Swim Club had any
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responsibility. Finally, and while I have never seen or spoken to Tyna Powell, it is my understanding that
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neither she, nor any member of her family, is or was a member of the Wasco Tiger Sharks Swim Club (I
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understand that she testified that her grandson was a member of a different swim club, coincidently named
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the “Taft Tiger Sharks Swim Team”).
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F. THE INAPPLICABILITY OF THE ALLEGATIONS IN THE COMPLAINT TO THE SWIM CLUB
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8. I am aware that the Swim Club was added as “Doe 11” to the Complaint, and that the
16 Complaint alleges that the defendants were “charged with the responsibility of designing, constructing,
17 operating, signing, maintaining, repairing or modifying the area commonly known as Barker Pool Park …..
18 including but not limited to the installation, maintenance and repair of a pothole and sprinkler valve box in
19 the grassy area of the park near the playground and pool” and that the defendants and each of them
20 “negligently and carelessly designed, warned, failed to warn, constructed, erected, maintained, repaired,
21 owned, operated and/or controlled” this area. I also understand that it is alleged that the Swim Club
22 “negligently owned, maintained, managed and operated the described premises” and that “defendants
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“negligently and carelessly installed, owned, maintained, repaired, managed, constructed, controlled,
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inspected”…. the “sprinkler valve box”, and/or had “had actual and/or constructive notice that such tripping
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hazard and dangerous condition existed, and failed to warn members of the general public.” Although I
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understand that the plaintiff has agreed to dismiss the Swim Club as a defendant, I would like to stress that
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DECLARATION OF JOAQUIN CASTILLO
1 as to the Swim Club, at least, none of these allegations are remotely accurate, and that there is no basis for
2 tort liability to Plaintiff, or anyone.
3 9. First, and most obviously, the Swim Club does not now and has never “owned” any portion
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of Barker Park. Barker Park is a public park and as such it presumably “owned” by the City of Wasco and/or
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the District. Second, the Swim Club has and had nothing, whatsoever, to do with the irrigation system at
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the park, or any sprinklers or sprinkler valve assembly in the park. The Swim Club did not “construct”,
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“install”, “erect”, “design”, “operate”, “maintain”, “modify” or “repair” it, or any portion of the sprinkler system.
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Of course, the Swim Club would have no conceivable responsibility for, or reason to be doing so. Third,
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and as far as a hole in the grassy area, or allowing grass to grow over it and conceal a hole, the Swim Club
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did not create the hole, nor was it responsible for cutting the grass or landscaping at the park, filling up any
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holes , and the like. Fourth, such “inspections” as the Swim Club might have conducted were by me, and I
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never “inspected”, looked at, or was asked by the District or anyone else to inspect or look at the area
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alleged to have been involved with plaintiff’s fall. I did repeatedly look at and inspect the Community Pool,
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since that was what we were renting and my only area of concern. I did the latter inspections both by
16 myself, and on the day of the swim meet, with a District employee. I have no idea what other areas of
17 Barker Park District personnel may have inspected, but there was never any suggestion that I, or any other
18 Swim Club person, should have anything to do with the grassy areas of Barker Park. Fifth, the Swim Club
19 also did not “control” the grassy areas of Barker Park, or take any steps to suggest where people wanting
20 to watch the swim meet should go, other than making the covered bleachers available for that purpose.
21 We did not direct people where to sit, nor did we mark off any areas of the park for usage. For that matter,
22 there was no particular grassy area in which people wishing to put up canopies or picnic and wanting to
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view the swim meet would tend to sit (those locations tended to vary from one year to the next). Sixth,
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Barker Park is a public park, and (other than the Community Pool itself, which we did rent and control
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during the meet), we had no right to exclude anyone from any portion of the park, and made no attempt to
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do so. Seventh, the Swim Club was never made aware of any grass-covered or sprinkler hole in the grassy
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area in question, has no idea how long it may have been in existence, or the circumstances of its creation,
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DECLARATION OF JOAQUIN CASTILLO
1 and no reason why it would or should have been aware of such prior to the incident. Our volunteers would
2 have been in the enclosed Community Pool, not under that tree. Eighth, we have never had occasion to
3 “sign” or put warning signs in the grassy area and concerning any landscaping or terrain problem, and no
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reason (or obligation) to do so.
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10. On June 17, 2021 – two days prior to the June 19, 2021 swim meet – I executed the
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Facility Use Agreement (“FUA”) on behalf of the Swim Club. A true and correct copy of the FUA is
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attached hereto as Exhibit A. I always understood that the FUA only encompassed the lease of the
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Community Pool, which is the enclosed off area previously referenced. in addition, there was a reference
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to the District agreeing not to separately rent out the four (4) shelters by the community pool on that date.
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However, as noted, the Swim Club did not use the shelters for any specific purpose, and I had previously
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told the District that they were welcome to rent them out (the language on the FUA was from a prior
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iteration of the document). In any event, any member of the general public was free to use those shelters,
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which would be the case whether a swim meet was going on or not, so the shelter provision in the Facility
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Use Agreement is not relevant to any issue in this case.
16 11. I at all times understood the FUA to relate exclusively to the rental of the Community Pool,
17 and, with the exception of a limitation on rental of pool adjacent shelters to third parties, not to have
18 anything to do with any other portions of Barker Park. Certainly, that is how it was always represented to
19 me, and in my discussions with District personnel prior to signing it, no one ever suggested that it involved
20 anything other than the Community Pool. Moreover, the FUA repeatedly and almost exclusively refers to
21 the pool area, including the following:
22 a. “the District is the controlling manager of the Wasco Swimming Pool “[Ex. A, pg. 1, 2nd
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paragraph] (italics added)
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b. “Wasco Tiger Sharks Swim Club desire to use the swimming pool ..” [Ex. A, pg. 1, 3rd
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paragraph] (italics added)
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DECLARATION OF JOAQUIN CASTILLO
1 c. “District allows [Swim Club] to use existing facilities … This will include a facility walk
2 through at the beginning and end of season”. [Ex. A, pg. 1, 1st bullet point] (italics
3 added)
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d. “[Swim Club] does hereby agree to pay to the District for the cost of electricity for
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lighting the pool and deck ….” [Ex. A, pg. 1, 6th bullet point] (italics added)
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e. “The District agrees to maintain the pool ….. including restroom cleaning, chemical
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balancing and pool circulation.” [Ex. A, pg. 1, 7th bullet point] (italics added)
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f. “[Swim Club] agrees to police the deck, guardroom and restrooms for trash and
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personal items left on the decks or pool… The District is not responsible for
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personal items left at the pool”. [Ex. A, pg. 1, 8th bullet point] (italics added, bolding
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and underlining in the original)
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g. “Locking and unlocking restrooms, building and gates [for the community pool] shall be
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sole responsibility of [Swim Club] [Ex. A, pg. 1, 9th bullet point]
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h. “[Swim Club] also agree to pay $200.00 for each A Meet and $100.00 per B. Meet held
16 at the Wasco Public Pool and one WRPD staff at the rate of $14.00 per hour for 8
17 hours of general maintenance for each meet. [Swim Club] will provide a list of duties
18 to be performed by District employee …..” [Ex. A, pg. 2, 1st bullet point] (italics added)
19 i. “[Swim Club] agree to have a responsible certified coach on deck at all times that
20 [Swim Club] are in/on the pool premises” [Ex. A, pg. 2, 2nd bullet point] (italics added)
21 j. “[Swim Club] will be given a work order to notify the District of any repairs to the pool
22 area” [Ex. A, pg. 2, 3rd bullet point] (italics added)
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k. “[Swim Club] agree to use the pool ……” [Ex. A, pg. 2, 5th bullet point] (italics added)
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l. “[Swim Club] does hereby agree not to interfere with District recreational swim, swim
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lessons or other scheduled swim event” [Ex. A, pg. 2, 7th bullet point] (italics added)
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DECLARATION OF JOAQUIN CASTILLO
1 m. [Swim Club] agree to provide a contract person [etc.] …… Failure to provide could
2 result in non-availability of pool for [Swim Club]” [Ex. A, pg. 2, 8th bullet point] (italics
3 added)
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12. The entire purpose of the FUA was for the rental and use of the Community Pool, not the
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rest of the park. The use of the Community Pool is the only thing I discussed with the District and in
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connection with the FUA and/or the Swim Club’s use of any portion of the facilities. That is also the way
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the Swim Club and the District treated it throughout. For example, I note that the only “facility walk
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throughs” at “the beginnings and end of the season” that the District conducted with me related to fenced
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off pool and pool deck/restroom areas, which were closed off from rest of Barker Park. Moreover, the only
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work orders provided by the District for repairs were for “the pool area”. Finally, the only inspection and
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maintenance obligations referenced for the Swim Club in the FUA relate to the pool area.
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13. Nothing in the FUA required WTSC to maintain, inspect, or repair the common area
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landscaping in grassy areas within Barker Park.
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14. Nothing in the FUA required WTSC to maintain, inspect, or repair the common area
16 walkways within Barker Park.
17 15. Nothing in the FUA required WTSC to maintain, inspect, or repair the sprinkler systems
18 within Barker Park.
19 16. Nothing in the FUA required WTSC to maintain, inspect, or repair any landscaping
20 deficiencies, including any holes, within the grassy areas of Barker Park.
21 17. During the operative period of the FUA, WTSC never maintained, inspected, or repaired
22 the common area landscaping in grassy areas within Barker Park.
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18. During the operative period of the FUA, WTSC never maintained, inspected, or repaired
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the common area walkways within Barker Park.
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19. During the operative period of the FUA, WTSC never maintained, inspected, or repaired
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the sprinkler systems within Barker Park.
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DECLARATION OF JOAQUIN CASTILLO
EXHIBIT A
Facility Use Agreement
This Agreement made and entered into this 17th day of June, for the period June 1, 2021, through July 31, 2021,
by and between the Wasco Recreation and Parks District (District) and the W'asco Tiger Sharks Swim Club
(Tiger Sharks)
WHEREAS, the District is the controlling manager of the Wasco Swimming Pool located at the Northeast
corner of Poplar and Poso Street,
WWHEREAS, Wasco Tiger Sharks Swim Club desire to use the swimming pool for their purpose of
conducting competitive swimming league and have the right to sell light concessions during each meet.
NOW THEREFORE, IT IS AGREED by and between the parties hereto as follows:
• District requests a schedule of swim meets at the signing of this agreement to uphold the terms of said
agreement.
• District does herby agree to allow Wasco Tiger Sharks Swim Club to use existing facilities for the sole
purpose of Wasco Tiger Sharks Swim Club swim meets, practice for the same and selling of light food
items and drink items or contract with a food facility at said meets. This will include a facility walk
through at the beginning and end of season.
® District agrees that the Wasco Tiger Sharks Swim Club will be sole provider for all light concession
activities for all meets and activities sponsored by Wasco Tiger Sharks Swim Club.
• Wasco Tiger Sharks Swim Club agrees to abide by and complete all necessary environmental health and
safety certifications that may be required prior to opening concession’s activities. Wasco Tiger Sharks
Swim Club also agrees that the cost will be the sole responsibility of and by the Wasco Tiger Sharks
Swim Club.
« District agrees that all profits for sale of concessions will be maintained by the Wasco Tiger Sharks
Swim Club for the duration of this agreement.
• Wasco Tiger Sharks Swim Club does hereby agree to pay to the District for the cost of electricity for
lighting the pool and deck at $20.00 per hour for all scheduled meets and practice when lights are in use.
• The District agrees to maintain the pool to the degree that swimming can be safely conducted at all
times. This will include trash removal during regular- District hours, restroom cleaning, chemical
balancing, and pool circulation prior to any scheduled practice or meet.
• Wasco Tiger Sharks Swim Club agrees to police the deck, guard room and restrooms for trash and
personal items left on decks or at the pool. Trash should be placed in trash receptacles for District staff
to dispose of. The District is not responsible for personal items left at the pool
• Locking and unlocking restrooms, buildings and gates will be sole responsibility of Wasco Tiger Sharks
Swim Club and not the District. The District will provide 6 sets of keys to the Wasco Tiger Sharks Swim
Club for their season. Wasco Tiger Sharks Swim Club do hereby agree to return all keys loaned/checked
out to Wasco Tiger Sharks Swim Club within one week of end of league and will not duplicate any keys
provided to them or their volunteers during the league.
• Wasco Tiger Sharks Swim Club does hereby agree to provide a roster to the District and to pay the
District a roster fee of $20.00 per registered swimmer for Wasco Tiger Sharks Swim Club, The roster
WRPD 0024
payment will be made no later than one week after the Wasco Tiger Sharks Swim Club season has
begun.
• Wasco Tiger Sharks Swim Club also agree to pay $200.00 for each A Meet and $100.00 per B Meet
held at the Wasco Public Pool and one WRPD staff at the rate of $1 4.00 per hour for 8 hours of general
maintenance for each meet. Maintenance person will be scheduled one week in advance with Wasco
Tiger Sharks Swim Club President and WRPD District Manager. Wasco Tiger Sharks Swim Club will
provide a list of duties to be performed by District employee. The list is to be agreed by the President
and Manager.
® Wasco Tiger Sharks Swim Club agree to have a responsible certified coach on deck at all times that
Wasco Tiger Sharks Swim Club are in/on the pool premises.
• Wasco Tiger Sharks Swim Club will be given a work order to notify the District of any repairs to the
pool area.
• Wasco Tiger Sharks Swim Club do hereby agree to be responsible for any and all repair cost of damages
to any District facility or equipment while under their care and control which derives from Wasco Tiger
Sharks Swim Club negligence.
• Wasco Tiger Sharks Swim Club agree to use the pool for practice morning and afternoon and meets on
Monday-Thursday (with exclusion of weekend meets) Morning practice is to be over by 10:00 a.m. and
evening practice by 6:00 p.m. Wasco Tiger Sharks Swim Club understand that Fridays are maintenance
days for the District and NO practice may be held.
• District agrees to not rent shelters in Barker Park or hold Recreation Swim on Wasco Tiger Shark Swim
Club Meet days.
• Wasco Tiger Sharks Swim Club does hereby agree not to interfere with District recreational swim, swim
lessons, or other scheduled swim event. An exception may be allowed with proper notification to the
District Manager during normal business hours.
® Wasco Tiger Sharks Swim Club agree to provide a contact person, contact information, and schedule for
the league as soon as possible for District staff to prepare for use. Failure to provide could result in non
availability of pool for Wasco Tiger Shark Swim Club practice.
TERM OF AGREEMENT : This agreement created hereunder becomes effective June 1, 2021 and shall
terminate at midnight on July 3 1 , 2021 .
TERMINATION; Failure of either organization to meet any of the above agreed to stipulations may result in
the termination of this agreement, and the loss of all rights contained herein.
PUBLIC SAFETY: The Wasco Tiger Sharks Swim Club do hereby agree to have all coaches and officials
fingerprinted and background investigations completed prior to the beginning of practice of game season and
throughout the season. These clearances will be retained by Wasco Tiger Sharks Swim Club with copies of all
provided to the District by the second week of scheduled practice.
The Wasco Tiger Sharks Swim Club do hereby agree to have a designated representative at all times on the
premises during the use of District property/facilities. This designee will keen order and report any incident to
the District and Tiger Sharks.
WRPD 0025
INSURANCE: The Wasco Tiger Sharks Swim Club during the term of this agreement shall procure and
maintain, for the duration of the use period contemplated herein, commercial general liability insurance with
coverage at least as broad as Insurance Services Office Form CG 00 01, in an amount not less than $1,000,000
per occurrence, $2,000,000 general aggregate, for bodily injury, personal injuiy , and property damage. The policy
must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured
contract” language will not be accepted. If alcohol is sold during the permitted activity, coverage must include
full liquor liability
a. Such as insurance shall name the Wasco Recreation and Park District, its officers, employees, agents,
and volunteers as additional insureds prior to the use of the facility. The Wasco Tiger Sharks Swim Club shall
file certificates of such insurance with the Wasco Recreation and Park District which shall be endorsed to provide
thirty (30) days’ notice to the Wasco Recreation and Park District of cancellation or any change of coverage
limits. If a copy of the insurance certificate is not on file prior to the event, the Wasco Recreation and Park District
may deny access to the facility.
b. All insurance policies shall be issued by an insurance company currently authorized by the Insurance
Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insures in the State of
California, with an assigned policyholders Rating of A- (or higher) and Financial Size Category Class VII (or
larger) in accordance with latest addition of Best’s Key Rating Guide, unless otherwise approved by the Wasco
Recreation and Park District’s self-insurance pool.
c. Requirements of specific coverage features, or limits contained in this Section are not intended as a
limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any
insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of any type. If the Tiger Sharks maintains higher limits than the minimums shown above, the Wasco
Recreation and Park District requires and shall be entitled to coverage for the higher limits maintained by the
Tiger Sharks. Any available insurance proceeds in excess of the specified minimum limits of insurance coverage
shall be available to Wasco Recreation and Park District. A certificate of insurance naming the District as
additional insured must be in possession of the District Manager prior to practice or season begins.
HOLD HARMLESS AND INDEMNIFICATION: Wasco Tiger Sharks Swim Club assume full responsibility
for accidents or damages which may arise out of use of the District Property, including without limitation from
maintenance and cleanliness of the facilities or property usage. In that regard; Wasco Tiger Sharks Swim Club
agree(s) to shall indemnify, defend, and hold harmless Wasco Recreation and Park District, its officers,
employees, and agents from any and all losses, costs, expenses, claims, liabilities, actions, or damages, including
liability for injuries to any person or persons or damage to property arising at any time out of or in any way related
to the Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by the Wasco
Recreation and Park District, unless solely caused by the gross negligence or willful misconduct of Wasco
Recreation and Park District, its officers employees, or agents with this agreement and use of Property.
The Wasco Tiger Sharks Swim Club shall indemnify, defend, and hold harmless Wasco Recreation and Park
District, its officers, employees, and agents from any and all losses, costs, expenses, claims, liabilities, actions, or
damages, including liability for injuries to any person or persons or damage to property arising at any time out of
or in any way related tn the Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled
by the Wasco Recreation and Park District, unless solely caused by the gross negligence or willful misconduct of
Wasco Recreation and Park District, its officers employees, or agents.
WRPD 0026
COMPLIANCE WITH ALL APPLICABLE LAW, RULES, & REGULATIONS
1 . The Wasco Tiger Sharks Swim Club shall comply with all local, state, and federal laws and regulations
related to the use of the facility and public gatherings.
2. The Wasco Tiger Sharks Swim Club agrees to abide by all applicable local, federal, and state
accessibility standards and regulations.
3. The Wasco Tiger Sharks Swim Club further agrees that it is solely responsible for reviewing and
ensuring compliance with all applicable public health rules, regulations, orders, and/or guidance in effect at the
time of the use of the facility including, but not limited to, physical distancing, limits on the size of gatherings,
use appropriate sanitation practices, etc.
4. The Wasco Recreation and Park District reserves the right to immediately revoke The Wasco Tiger
Shark organization right to use of the facility under this agreement should The Wasco Tiger Sharks Swim Club
fail to comply with any provision of this section.
FORCE MAJEURE
Force Majeure Events: Not withstanding anything to the contrary contained in this agreement, the Wasco
Recreation and Park District shall be excused from its obligations under this agreement to the extent and whenever
it shall be prevented from the performance of such obligations by any Force Majeure Event. For purposes of this
agreement, a “Force Majeure Event” includes but is not limited to fires, floods, earthquakes, pandemic, epidemic,
civil disturbances, acts of terrorism, regulation of any public authority, and other causes beyond their control. The
Wasco Tiger Sharks Swim Club waives any right of recovery against Wasco Recreation and Park District and the
Wasco Tiger Sharks Swim Club shall not charge results of “acts of God” to Wasco Recreation and Park District,
its officers, employees, or agents.
IN WITNESS WHEREOF, District and Wasco Tiger Sharks Swim Club have executed this Agreement as of
the Effective Date stated below and signed by both District Board Chairwoman and Wasco Tiger Sharks Swim
Club President,
Dated: June 17, 2021
/ C-0J I .j Vt -l < j Chairwoman
Wasco Recreation and Parks '
/?
, President
Wasco Tiger Sharks Swim Club
WRPD 0027
1 PROOF OF SERVICE
2 Tyna Powell vs. WASCO Recreation & Park District, et al.
Superior Court County of Kern
3 Case No. BCV-22-100328
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STATE OF CALIFORNIA )
5 ) ss:
COUNTY OF LOS ANGELES )
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I, Freida Dubin, declare:
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I am a resident of the State of California and over the age of eighteen years, and not a party to the
8 within action; my business address is 12100 Wilshire Boulevard, Suite 1125, Los Angeles, CA 90025-7117.
On February 2, 2024, I served the within documents:
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10 DECLARATION OF JOAQUIN CASTILLO IN SUPPORT OF WASCO TIGER SHARKS SWIM
11 CLUB AND HDI GLOBAL SPECIALTY, SE'S MOTION FOR SUMMARY JUDGMENT, OR IN
THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES AS TO THE FIRST
12 AMENDED CROSS COMPLAINANT OF WASCO RECREATION AND PARK DISTRICT'S
MOTION FOR SUMMARY ADJUDICATION
SCHWARTZ & JANZEN
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14 □ BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused the document(s) to be sent from
e-mail address admin@sj-law.com to the persons at the e-mail addresses listed in the
15 Service list. I did not receive, within a reasonable time after transmission, any electronic
message or other indication that the transmission was unsuccessful.
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17 □ VIA U.S. MAIL: by placing the document(s) listed above in a sealed envelope with postage
thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set
forth below.
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19 ELECTRONIC SERVICE: I caused the document referenced above to be sent to the
interested party at the e-mail address listed below via the electronic service provider One
Legal.
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21 I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
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Executed on February 2, 2024, at Los Angeles, California
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By:
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Freida Dubin Freida Dubin
25 Print Name Signature
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1422.021
PROOF OF SERVICE
1 SERVICE LIST
2 Tyna Powell vs. WASCO Recreation & Park District, et al.
Superior Court County of Kern
3 Case No. BCV-22-100328
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5 Matthew Clark, Esq. SBN 218784 Michael C. Kellar, Esq. SBN 80251
Doug Fitz-Simmons, Esq. SBN 128338 ROBINSON & KELLER
6 CHAIN COHN CLARK 3434 Truxtun Avenue, Suite 150
1731 Chester Avenue, Bakersfield, CA 93301
7 Bakersfield, CA 93301 Tel: (661)323-8277
Email: mclark@chainlaw.com Fax: (661)323-4205
8 dfitzsimmons@chainlaw.com Email: rpllaw@aol.com
service@chainlaw.com
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10 Counsel for Plaintiff, TYNA POWELL Counsel for Defendant, CITY OF WASCO
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William E. Camy, Esq.
12 Nicholas A. Pancharian, Esq.
Kristena Champlin
SCHWARTZ & JANZEN
13 Evelyn Segoviano
PORTER SCOTT
14 350 University Avenue, Suite 200
Sacramento, CA 95825-6581
15 Email: wcamy@porterscott.com
npancharian@porterscott.com
16 kchamplin@porterscott.com
Esegoviano@porterscott.com
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Counsel for Defendant, WASCO RECREATION
18 AND PARK DISTRICT
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Preview
Steven H. Schwartz, Esq. - State Bar No. 94637 1 sschwartz@sj-law.com 2 Noel E. Macaulay, Esq. – State Bar No. 121695 nmacaulay@sj-law.com 3 SCHWARTZ & JANZEN, LLP 12100 Wilshire Boulevard, Suite 1125 4 Los Angeles, California 90025 5 Telephone: 310.979.4090 Facsimile: 310.207.3344 6 7 Attorneys for Defendants and Cross-Defendants WASCO TIGER SHARKS SWIM CLUB and HDI 8 GLOBAL SPECIALTY, SE 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 11 FOR THE COUNTY OF KERN, METROPOLITAN DIVISION 12 TYNA POWELL, an individual CASE NO. BCV-22-100328 13 Plaintiff Dept.: Bakersfield Division H 14 v. DECLARATION OF JOAQUIN CASTILLO IN 15 SUPPORT OF WASCO TIGER SHARKS SWIM WASCO RECREATION AND PARK CLUB AND HDI GLOBAL SPECIALTY, SE’S 16 DISTRICT; CITY OF WASCO; COUNTY OF MOTION FOR SUMMARY JUDGMENT, OR IN 17 KERN; and DOES 1-50, inclusive THE ALTERNATIVE, FOR SUMMARY Defendants. ADJUDICATION OF ISSUES AS TO THE FIRST 18 _____________________________________ AMENDED CROSS COMPLAINANT OF WASCO WASCO RECREATION AND PARK DISTRICT RECREATION AND PARK DISTRICT’S MOTION 19 FOR SUMMARY ADJUDICATION 20 Cross-Complainant Date: April 17, 2024 21 v. Time: 8:30 A.M. Dept.: H 22 WASCO TIGER SHARKS SWIM CLUB, HDI 23 GLOBAL SPECIALTY SE, and DOES 1 to 20, Complaint Filed: February 10, 2022 Cross-Complaint Filed: April 19, 2022 24 Cross-Defendants. 25 26 27 28 -1– DECLARATION OF JOAQUIN CASTILLO 1 I, Joaquin Castillo, declare as follows: 2 A. BACKGROUND 3 1. From 2010-2014 and 2017-2022, I was the head coach of and for the Wasco Tiger Sharks 4 Swim Club (“Swim Club”). In addition to being the head coach I was also the President of the Wasco Tiger 5 Sharks Swim Club from 2020-2022. Moreover, and on June 19, 2021, the date of the incident, I was the 6 person at the Swim Club running the swim meet in question, and in charge of and supervising those other 7 volunteers assisting me. In addition, and as the head coach for the Swim Club, and the President of the 8 organization at the time, I was the person who executed the operative Facilities Use Agreement (“FUA”) 9 with the Wasco Recreation and Park District (“District”), and who interacted with the District during the 10 2020-2022 period. I am also the person who conducted walk-throughs or inspections of the pool facilities, 11 either with the District personnel or separately. As such, I was directly involved in all matters set forth 12 below, have personal knowledge of, and can and do competently testify as follows: 13 B. THE WASCO TIGER SHARKS SWIM CLUB 14 15 2. The Wasco Tiger Sharks Swim Club is a non-profit club, which is open to children 4 years 16 old and up. It relies upon volunteers for its work, charging members of the Swim Club a fee to help cover its 17 expenses. It uses the community pool at the Barker Park in Wasco for its practices. It also holds an 18 annual (and occasionally twice annual) swim meet there. As it relates to the swim meet, the District 19 charged the Swim Club both a flat fee and a per swimmer fee. 20 C. BARKER PARK 21 3. Barker Park is a public park in the City of Wasco. Barker Park has a number of facilities, 22 including the community pool, the surrounding pool deck, immediately adjacent covered bleachers, three 23 ball fields, a community hall, the District office, parking lots, a maintenance area, and a playground, as well 24 a few covered “shelters” near the pool and ball fields, where anyone can sit down. The park also has 25 cement pathways and, of course, acres of grassy areas and trees. 26 27 28 -2– DECLARATION OF JOAQUIN CASTILLO 1 D. THE LIMITED USE OF BARKER PARK BY THE SWIM CLUB 2 4. As we are a swim club, we are interested in, rent and sometimes use the community pool 3 and adjacent bleacher/s. The Swim Club is not interested in and does not rent the rest of the park. In 4 particular, during practices and during the swim meet, we rent and use the fenced off and enclosed 5 community pool (excluding the pool pump and filter areas, which we have no access to). To be clear, the 6 community pool consists of the pool itself, the surrounding pool deck and the restrooms off the pool deck 7 (hereinafter referred to in the aggregate as the “Community Pool”). The Community Pool is fenced in and 8 separate from the rest of Barker Park. In addition, there are fenced in and covered bleachers immediately 9 adjacent to the pool, which are available for anyone – including members of the public - who may want to 10 watch the swimming. The entrances to the community pool and bleachers have concrete/cement walkways 11 which lead to them. 12 5. In addition – and like any member of the public – people having some connection with the 13 swimming can sit down at the nearby covered shelters, or to put up small canopies and/or sit on lawn 14 15 chairs and/or place a picnic blankets on the grass. I would add that insofar as the shelters are concerned, 16 the Swim Club was not using them on the day in question to sell merchandise or food or for any similar 17 purpose. The Swim Club does not tell or suggest to people what portions of the Barker Park anyone – 18 including members of the general public – should use. Other than making the covered bleachers available 19 to persons wanting to watch the swim meet, we are simply not involved in those decisions. We also do not 20 suggest the usage of, inspect, maintain, control or have responsibility for any other portion of Barker Park. 21 6. I am aware that the District is now asserting in its Cross-Complaint that it rented the “entire 22 park” to the Swim Club. That contention is absurd. To give but a few of the most obvious examples, the 23 Swim Club would have had nothing whatsoever to do with the baseball fields, the community hall, the 24 District office and many other portions of the park, nor would any member of the general public have been 25 excluded from any portion of Barker Park during the swim meet, other then the fenced off area of the 26 Community Pool itself. Moreover, I have rented out other facilities at Barker Park in the past, in various 27 capacities, and separate rental agreements were prepared for each – it was never Barker Park as a whole. 28 -3– DECLARATION OF JOAQUIN CASTILLO 1 E. PLAINTIFF’S CLAIM AS TO THE CAUSE OF HER FALL 2 7. It is my understanding that Tyna Powell, the plaintiff, is claiming that she fell on July 19, 3 2021 at the Barker Park, when walking from a place where her son had set up a canopy and ice chest. She 4 alleges that she was walking on the grass and towards the Barker Park playground. It is also my 5 understanding that she contends that she fell as a consequence of hole in the ground in a shady area 6 under a tree, which hole was located around and associated with a sprinkler valve assembly, and, because 7 it was overgrown with grass, not visible. The pictures I have been shown from her deposition depict a fall 8 location that was not part of the Community Pool, or any area for which the Swim Club had any 9 responsibility. Finally, and while I have never seen or spoken to Tyna Powell, it is my understanding that 10 neither she, nor any member of her family, is or was a member of the Wasco Tiger Sharks Swim Club (I 11 understand that she testified that her grandson was a member of a different swim club, coincidently named 12 the “Taft Tiger Sharks Swim Team”). 13 F. THE INAPPLICABILITY OF THE ALLEGATIONS IN THE COMPLAINT TO THE SWIM CLUB 14 15 8. I am aware that the Swim Club was added as “Doe 11” to the Complaint, and that the 16 Complaint alleges that the defendants were “charged with the responsibility of designing, constructing, 17 operating, signing, maintaining, repairing or modifying the area commonly known as Barker Pool Park ….. 18 including but not limited to the installation, maintenance and repair of a pothole and sprinkler valve box in 19 the grassy area of the park near the playground and pool” and that the defendants and each of them 20 “negligently and carelessly designed, warned, failed to warn, constructed, erected, maintained, repaired, 21 owned, operated and/or controlled” this area. I also understand that it is alleged that the Swim Club 22 “negligently owned, maintained, managed and operated the described premises” and that “defendants 23 “negligently and carelessly installed, owned, maintained, repaired, managed, constructed, controlled, 24 inspected”…. the “sprinkler valve box”, and/or had “had actual and/or constructive notice that such tripping 25 hazard and dangerous condition existed, and failed to warn members of the general public.” Although I 26 understand that the plaintiff has agreed to dismiss the Swim Club as a defendant, I would like to stress that 27 28 -4– DECLARATION OF JOAQUIN CASTILLO 1 as to the Swim Club, at least, none of these allegations are remotely accurate, and that there is no basis for 2 tort liability to Plaintiff, or anyone. 3 9. First, and most obviously, the Swim Club does not now and has never “owned” any portion 4 of Barker Park. Barker Park is a public park and as such it presumably “owned” by the City of Wasco and/or 5 the District. Second, the Swim Club has and had nothing, whatsoever, to do with the irrigation system at 6 the park, or any sprinklers or sprinkler valve assembly in the park. The Swim Club did not “construct”, 7 “install”, “erect”, “design”, “operate”, “maintain”, “modify” or “repair” it, or any portion of the sprinkler system. 8 Of course, the Swim Club would have no conceivable responsibility for, or reason to be doing so. Third, 9 and as far as a hole in the grassy area, or allowing grass to grow over it and conceal a hole, the Swim Club 10 did not create the hole, nor was it responsible for cutting the grass or landscaping at the park, filling up any 11 holes , and the like. Fourth, such “inspections” as the Swim Club might have conducted were by me, and I 12 never “inspected”, looked at, or was asked by the District or anyone else to inspect or look at the area 13 alleged to have been involved with plaintiff’s fall. I did repeatedly look at and inspect the Community Pool, 14 15 since that was what we were renting and my only area of concern. I did the latter inspections both by 16 myself, and on the day of the swim meet, with a District employee. I have no idea what other areas of 17 Barker Park District personnel may have inspected, but there was never any suggestion that I, or any other 18 Swim Club person, should have anything to do with the grassy areas of Barker Park. Fifth, the Swim Club 19 also did not “control” the grassy areas of Barker Park, or take any steps to suggest where people wanting 20 to watch the swim meet should go, other than making the covered bleachers available for that purpose. 21 We did not direct people where to sit, nor did we mark off any areas of the park for usage. For that matter, 22 there was no particular grassy area in which people wishing to put up canopies or picnic and wanting to 23 view the swim meet would tend to sit (those locations tended to vary from one year to the next). Sixth, 24 Barker Park is a public park, and (other than the Community Pool itself, which we did rent and control 25 during the meet), we had no right to exclude anyone from any portion of the park, and made no attempt to 26 do so. Seventh, the Swim Club was never made aware of any grass-covered or sprinkler hole in the grassy 27 area in question, has no idea how long it may have been in existence, or the circumstances of its creation, 28 -5– DECLARATION OF JOAQUIN CASTILLO 1 and no reason why it would or should have been aware of such prior to the incident. Our volunteers would 2 have been in the enclosed Community Pool, not under that tree. Eighth, we have never had occasion to 3 “sign” or put warning signs in the grassy area and concerning any landscaping or terrain problem, and no 4 reason (or obligation) to do so. 5 10. On June 17, 2021 – two days prior to the June 19, 2021 swim meet – I executed the 6 Facility Use Agreement (“FUA”) on behalf of the Swim Club. A true and correct copy of the FUA is 7 attached hereto as Exhibit A. I always understood that the FUA only encompassed the lease of the 8 Community Pool, which is the enclosed off area previously referenced. in addition, there was a reference 9 to the District agreeing not to separately rent out the four (4) shelters by the community pool on that date. 10 However, as noted, the Swim Club did not use the shelters for any specific purpose, and I had previously 11 told the District that they were welcome to rent them out (the language on the FUA was from a prior 12 iteration of the document). In any event, any member of the general public was free to use those shelters, 13 which would be the case whether a swim meet was going on or not, so the shelter provision in the Facility 14 15 Use Agreement is not relevant to any issue in this case. 16 11. I at all times understood the FUA to relate exclusively to the rental of the Community Pool, 17 and, with the exception of a limitation on rental of pool adjacent shelters to third parties, not to have 18 anything to do with any other portions of Barker Park. Certainly, that is how it was always represented to 19 me, and in my discussions with District personnel prior to signing it, no one ever suggested that it involved 20 anything other than the Community Pool. Moreover, the FUA repeatedly and almost exclusively refers to 21 the pool area, including the following: 22 a. “the District is the controlling manager of the Wasco Swimming Pool “[Ex. A, pg. 1, 2nd 23 paragraph] (italics added) 24 b. “Wasco Tiger Sharks Swim Club desire to use the swimming pool ..” [Ex. A, pg. 1, 3rd 25 paragraph] (italics added) 26 27 28 -6– DECLARATION OF JOAQUIN CASTILLO 1 c. “District allows [Swim Club] to use existing facilities … This will include a facility walk 2 through at the beginning and end of season”. [Ex. A, pg. 1, 1st bullet point] (italics 3 added) 4 d. “[Swim Club] does hereby agree to pay to the District for the cost of electricity for 5 lighting the pool and deck ….” [Ex. A, pg. 1, 6th bullet point] (italics added) 6 e. “The District agrees to maintain the pool ….. including restroom cleaning, chemical 7 balancing and pool circulation.” [Ex. A, pg. 1, 7th bullet point] (italics added) 8 f. “[Swim Club] agrees to police the deck, guardroom and restrooms for trash and 9 personal items left on the decks or pool… The District is not responsible for 10 personal items left at the pool”. [Ex. A, pg. 1, 8th bullet point] (italics added, bolding 11 and underlining in the original) 12 g. “Locking and unlocking restrooms, building and gates [for the community pool] shall be 13 sole responsibility of [Swim Club] [Ex. A, pg. 1, 9th bullet point] 14 15 h. “[Swim Club] also agree to pay $200.00 for each A Meet and $100.00 per B. Meet held 16 at the Wasco Public Pool and one WRPD staff at the rate of $14.00 per hour for 8 17 hours of general maintenance for each meet. [Swim Club] will provide a list of duties 18 to be performed by District employee …..” [Ex. A, pg. 2, 1st bullet point] (italics added) 19 i. “[Swim Club] agree to have a responsible certified coach on deck at all times that 20 [Swim Club] are in/on the pool premises” [Ex. A, pg. 2, 2nd bullet point] (italics added) 21 j. “[Swim Club] will be given a work order to notify the District of any repairs to the pool 22 area” [Ex. A, pg. 2, 3rd bullet point] (italics added) 23 k. “[Swim Club] agree to use the pool ……” [Ex. A, pg. 2, 5th bullet point] (italics added) 24 l. “[Swim Club] does hereby agree not to interfere with District recreational swim, swim 25 lessons or other scheduled swim event” [Ex. A, pg. 2, 7th bullet point] (italics added) 26 27 28 -7– DECLARATION OF JOAQUIN CASTILLO 1 m. [Swim Club] agree to provide a contract person [etc.] …… Failure to provide could 2 result in non-availability of pool for [Swim Club]” [Ex. A, pg. 2, 8th bullet point] (italics 3 added) 4 12. The entire purpose of the FUA was for the rental and use of the Community Pool, not the 5 rest of the park. The use of the Community Pool is the only thing I discussed with the District and in 6 connection with the FUA and/or the Swim Club’s use of any portion of the facilities. That is also the way 7 the Swim Club and the District treated it throughout. For example, I note that the only “facility walk 8 throughs” at “the beginnings and end of the season” that the District conducted with me related to fenced 9 off pool and pool deck/restroom areas, which were closed off from rest of Barker Park. Moreover, the only 10 work orders provided by the District for repairs were for “the pool area”. Finally, the only inspection and 11 maintenance obligations referenced for the Swim Club in the FUA relate to the pool area. 12 13. Nothing in the FUA required WTSC to maintain, inspect, or repair the common area 13 landscaping in grassy areas within Barker Park. 14 15 14. Nothing in the FUA required WTSC to maintain, inspect, or repair the common area 16 walkways within Barker Park. 17 15. Nothing in the FUA required WTSC to maintain, inspect, or repair the sprinkler systems 18 within Barker Park. 19 16. Nothing in the FUA required WTSC to maintain, inspect, or repair any landscaping 20 deficiencies, including any holes, within the grassy areas of Barker Park. 21 17. During the operative period of the FUA, WTSC never maintained, inspected, or repaired 22 the common area landscaping in grassy areas within Barker Park. 23 18. During the operative period of the FUA, WTSC never maintained, inspected, or repaired 24 the common area walkways within Barker Park. 25 19. During the operative period of the FUA, WTSC never maintained, inspected, or repaired 26 the sprinkler systems within Barker Park. 27 28 -8– DECLARATION OF JOAQUIN CASTILLO EXHIBIT A Facility Use Agreement This Agreement made and entered into this 17th day of June, for the period June 1, 2021, through July 31, 2021, by and between the Wasco Recreation and Parks District (District) and the W'asco Tiger Sharks Swim Club (Tiger Sharks) WHEREAS, the District is the controlling manager of the Wasco Swimming Pool located at the Northeast corner of Poplar and Poso Street, WWHEREAS, Wasco Tiger Sharks Swim Club desire to use the swimming pool for their purpose of conducting competitive swimming league and have the right to sell light concessions during each meet. NOW THEREFORE, IT IS AGREED by and between the parties hereto as follows: • District requests a schedule of swim meets at the signing of this agreement to uphold the terms of said agreement. • District does herby agree to allow Wasco Tiger Sharks Swim Club to use existing facilities for the sole purpose of Wasco Tiger Sharks Swim Club swim meets, practice for the same and selling of light food items and drink items or contract with a food facility at said meets. This will include a facility walk through at the beginning and end of season. ® District agrees that the Wasco Tiger Sharks Swim Club will be sole provider for all light concession activities for all meets and activities sponsored by Wasco Tiger Sharks Swim Club. • Wasco Tiger Sharks Swim Club agrees to abide by and complete all necessary environmental health and safety certifications that may be required prior to opening concession’s activities. Wasco Tiger Sharks Swim Club also agrees that the cost will be the sole responsibility of and by the Wasco Tiger Sharks Swim Club. « District agrees that all profits for sale of concessions will be maintained by the Wasco Tiger Sharks Swim Club for the duration of this agreement. • Wasco Tiger Sharks Swim Club does hereby agree to pay to the District for the cost of electricity for lighting the pool and deck at $20.00 per hour for all scheduled meets and practice when lights are in use. • The District agrees to maintain the pool to the degree that swimming can be safely conducted at all times. This will include trash removal during regular- District hours, restroom cleaning, chemical balancing, and pool circulation prior to any scheduled practice or meet. • Wasco Tiger Sharks Swim Club agrees to police the deck, guard room and restrooms for trash and personal items left on decks or at the pool. Trash should be placed in trash receptacles for District staff to dispose of. The District is not responsible for personal items left at the pool • Locking and unlocking restrooms, buildings and gates will be sole responsibility of Wasco Tiger Sharks Swim Club and not the District. The District will provide 6 sets of keys to the Wasco Tiger Sharks Swim Club for their season. Wasco Tiger Sharks Swim Club do hereby agree to return all keys loaned/checked out to Wasco Tiger Sharks Swim Club within one week of end of league and will not duplicate any keys provided to them or their volunteers during the league. • Wasco Tiger Sharks Swim Club does hereby agree to provide a roster to the District and to pay the District a roster fee of $20.00 per registered swimmer for Wasco Tiger Sharks Swim Club, The roster WRPD 0024 payment will be made no later than one week after the Wasco Tiger Sharks Swim Club season has begun. • Wasco Tiger Sharks Swim Club also agree to pay $200.00 for each A Meet and $100.00 per B Meet held at the Wasco Public Pool and one WRPD staff at the rate of $1 4.00 per hour for 8 hours of general maintenance for each meet. Maintenance person will be scheduled one week in advance with Wasco Tiger Sharks Swim Club President and WRPD District Manager. Wasco Tiger Sharks Swim Club will provide a list of duties to be performed by District employee. The list is to be agreed by the President and Manager. ® Wasco Tiger Sharks Swim Club agree to have a responsible certified coach on deck at all times that Wasco Tiger Sharks Swim Club are in/on the pool premises. • Wasco Tiger Sharks Swim Club will be given a work order to notify the District of any repairs to the pool area. • Wasco Tiger Sharks Swim Club do hereby agree to be responsible for any and all repair cost of damages to any District facility or equipment while under their care and control which derives from Wasco Tiger Sharks Swim Club negligence. • Wasco Tiger Sharks Swim Club agree to use the pool for practice morning and afternoon and meets on Monday-Thursday (with exclusion of weekend meets) Morning practice is to be over by 10:00 a.m. and evening practice by 6:00 p.m. Wasco Tiger Sharks Swim Club understand that Fridays are maintenance days for the District and NO practice may be held. • District agrees to not rent shelters in Barker Park or hold Recreation Swim on Wasco Tiger Shark Swim Club Meet days. • Wasco Tiger Sharks Swim Club does hereby agree not to interfere with District recreational swim, swim lessons, or other scheduled swim event. An exception may be allowed with proper notification to the District Manager during normal business hours. ® Wasco Tiger Sharks Swim Club agree to provide a contact person, contact information, and schedule for the league as soon as possible for District staff to prepare for use. Failure to provide could result in non availability of pool for Wasco Tiger Shark Swim Club practice. TERM OF AGREEMENT : This agreement created hereunder becomes effective June 1, 2021 and shall terminate at midnight on July 3 1 , 2021 . TERMINATION; Failure of either organization to meet any of the above agreed to stipulations may result in the termination of this agreement, and the loss of all rights contained herein. PUBLIC SAFETY: The Wasco Tiger Sharks Swim Club do hereby agree to have all coaches and officials fingerprinted and background investigations completed prior to the beginning of practice of game season and throughout the season. These clearances will be retained by Wasco Tiger Sharks Swim Club with copies of all provided to the District by the second week of scheduled practice. The Wasco Tiger Sharks Swim Club do hereby agree to have a designated representative at all times on the premises during the use of District property/facilities. This designee will keen order and report any incident to the District and Tiger Sharks. WRPD 0025 INSURANCE: The Wasco Tiger Sharks Swim Club during the term of this agreement shall procure and maintain, for the duration of the use period contemplated herein, commercial general liability insurance with coverage at least as broad as Insurance Services Office Form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injuiy , and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. If alcohol is sold during the permitted activity, coverage must include full liquor liability a. Such as insurance shall name the Wasco Recreation and Park District, its officers, employees, agents, and volunteers as additional insureds prior to the use of the facility. The Wasco Tiger Sharks Swim Club shall file certificates of such insurance with the Wasco Recreation and Park District which shall be endorsed to provide thirty (30) days’ notice to the Wasco Recreation and Park District of cancellation or any change of coverage limits. If a copy of the insurance certificate is not on file prior to the event, the Wasco Recreation and Park District may deny access to the facility. b. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insures in the State of California, with an assigned policyholders Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with latest addition of Best’s Key Rating Guide, unless otherwise approved by the Wasco Recreation and Park District’s self-insurance pool. c. Requirements of specific coverage features, or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Tiger Sharks maintains higher limits than the minimums shown above, the Wasco Recreation and Park District requires and shall be entitled to coverage for the higher limits maintained by the Tiger Sharks. Any available insurance proceeds in excess of the specified minimum limits of insurance coverage shall be available to Wasco Recreation and Park District. A certificate of insurance naming the District as additional insured must be in possession of the District Manager prior to practice or season begins. HOLD HARMLESS AND INDEMNIFICATION: Wasco Tiger Sharks Swim Club assume full responsibility for accidents or damages which may arise out of use of the District Property, including without limitation from maintenance and cleanliness of the facilities or property usage. In that regard; Wasco Tiger Sharks Swim Club agree(s) to shall indemnify, defend, and hold harmless Wasco Recreation and Park District, its officers, employees, and agents from any and all losses, costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to any person or persons or damage to property arising at any time out of or in any way related to the Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by the Wasco Recreation and Park District, unless solely caused by the gross negligence or willful misconduct of Wasco Recreation and Park District, its officers employees, or agents with this agreement and use of Property. The Wasco Tiger Sharks Swim Club shall indemnify, defend, and hold harmless Wasco Recreation and Park District, its officers, employees, and agents from any and all losses, costs, expenses, claims, liabilities, actions, or damages, including liability for injuries to any person or persons or damage to property arising at any time out of or in any way related tn the Wasco Tiger Sharks Swim Club’s use or occupancy of a facility or property controlled by the Wasco Recreation and Park District, unless solely caused by the gross negligence or willful misconduct of Wasco Recreation and Park District, its officers employees, or agents. WRPD 0026 COMPLIANCE WITH ALL APPLICABLE LAW, RULES, & REGULATIONS 1 . The Wasco Tiger Sharks Swim Club shall comply with all local, state, and federal laws and regulations related to the use of the facility and public gatherings. 2. The Wasco Tiger Sharks Swim Club agrees to abide by all applicable local, federal, and state accessibility standards and regulations. 3. The Wasco Tiger Sharks Swim Club further agrees that it is solely responsible for reviewing and ensuring compliance with all applicable public health rules, regulations, orders, and/or guidance in effect at the time of the use of the facility including, but not limited to, physical distancing, limits on the size of gatherings, use appropriate sanitation practices, etc. 4. The Wasco Recreation and Park District reserves the right to immediately revoke The Wasco Tiger Shark organization right to use of the facility under this agreement should The Wasco Tiger Sharks Swim Club fail to comply with any provision of this section. FORCE MAJEURE Force Majeure Events: Not withstanding anything to the contrary contained in this agreement, the Wasco Recreation and Park District shall be excused from its obligations under this agreement to the extent and whenever it shall be prevented from the performance of such obligations by any Force Majeure Event. For purposes of this agreement, a “Force Majeure Event” includes but is not limited to fires, floods, earthquakes, pandemic, epidemic, civil disturbances, acts of terrorism, regulation of any public authority, and other causes beyond their control. The Wasco Tiger Sharks Swim Club waives any right of recovery against Wasco Recreation and Park District and the Wasco Tiger Sharks Swim Club shall not charge results of “acts of God” to Wasco Recreation and Park District, its officers, employees, or agents. IN WITNESS WHEREOF, District and Wasco Tiger Sharks Swim Club have executed this Agreement as of the Effective Date stated below and signed by both District Board Chairwoman and Wasco Tiger Sharks Swim Club President, Dated: June 17, 2021 / C-0J I .j Vt -l < j Chairwoman Wasco Recreation and Parks ' /? , President Wasco Tiger Sharks Swim Club WRPD 0027 1 PROOF OF SERVICE 2 Tyna Powell vs. WASCO Recreation & Park District, et al. Superior Court County of Kern 3 Case No. BCV-22-100328 4 STATE OF CALIFORNIA ) 5 ) ss: COUNTY OF LOS ANGELES ) 6 I, Freida Dubin, declare: 7 I am a resident of the State of California and over the age of eighteen years, and not a party to the 8 within action; my business address is 12100 Wilshire Boulevard, Suite 1125, Los Angeles, CA 90025-7117. On February 2, 2024, I served the within documents: 9 10 DECLARATION OF JOAQUIN CASTILLO IN SUPPORT OF WASCO TIGER SHARKS SWIM 11 CLUB AND HDI GLOBAL SPECIALTY, SE'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES AS TO THE FIRST 12 AMENDED CROSS COMPLAINANT OF WASCO RECREATION AND PARK DISTRICT'S MOTION FOR SUMMARY ADJUDICATION SCHWARTZ & JANZEN 13 14 □ BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused the document(s) to be sent from e-mail address admin@sj-law.com to the persons at the e-mail addresses listed in the 15 Service list. I did not receive, within a reasonable time after transmission, any electronic message or other indication that the transmission was unsuccessful. 16 17 □ VIA U.S. MAIL: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth below. 18 19 ELECTRONIC SERVICE: I caused the document referenced above to be sent to the interested party at the e-mail address listed below via the electronic service provider One Legal. 20 21 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 22 Executed on February 2, 2024, at Los Angeles, California 23 By: 24 Freida Dubin Freida Dubin 25 Print Name Signature 26 27 28 1422.021 PROOF OF SERVICE 1 SERVICE LIST 2 Tyna Powell vs. WASCO Recreation & Park District, et al. Superior Court County of Kern 3 Case No. BCV-22-100328 4 5 Matthew Clark, Esq. SBN 218784 Michael C. Kellar, Esq. SBN 80251 Doug Fitz-Simmons, Esq. SBN 128338 ROBINSON & KELLER 6 CHAIN COHN CLARK 3434 Truxtun Avenue, Suite 150 1731 Chester Avenue, Bakersfield, CA 93301 7 Bakersfield, CA 93301 Tel: (661)323-8277 Email: mclark@chainlaw.com Fax: (661)323-4205 8 dfitzsimmons@chainlaw.com Email: rpllaw@aol.com service@chainlaw.com 9 10 Counsel for Plaintiff, TYNA POWELL Counsel for Defendant, CITY OF WASCO 11 William E. Camy, Esq. 12 Nicholas A. Pancharian, Esq. Kristena Champlin SCHWARTZ & JANZEN 13 Evelyn Segoviano PORTER SCOTT 14 350 University Avenue, Suite 200 Sacramento, CA 95825-6581 15 Email: wcamy@porterscott.com npancharian@porterscott.com 16 kchamplin@porterscott.com Esegoviano@porterscott.com 17 Counsel for Defendant, WASCO RECREATION 18 AND PARK DISTRICT 19 20 21 22 23 24 25 26 27 28