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HomeMy WebLinkAbout2010-03-09 City Council Item No. 12CITY OF .rte,.. LAU LS TAO E I~V' DREAM EXTREME REPORT TO CITY COUNCIL TO: HONORABLE MAYOR AND COUNCILMEMBERS FROM: ROBERT A. BRADY, CITY MANAGER DATE: MARCH 9, 2010 SUBJECT: EXCLUSIVE USE AGREEMENT FOR THE DR. SHARRON LINDSAY COMMUNITY CENTER Background Construction of the new gymnasium at the Terra Cotta Middle School was a joint project of the Lake Elsinore Unified School District (LEUSD) and the City of Lake Elsinore. The City's cost-share for the facility was $750,000. The facility was dedicated in memory of Dr. Sharron Lindsay on November 12, 2009 and subsequently named the "Dr. Sharron Lindsay Community Center". Discussion An "Exclusive Use Agreement between the LEUSD and the City" has been developed to specify the terms and conditions for use of the facility. This joint-use facility will serve the needs of the Terra Cotta Middle School primarily on weekdays during school hours and will be available for use by citizens of the City during the evenings and on weekends, with some exceptions. Fiscal Impact Under the terms of this agreement the City agrees to pay utility and custodial costs related to the City's use of the gymnasium. During the City's annual budget approval process, City Staff shall plan the recreational programs in advance to be held at this facility and provide a budget for staffing, utilities and custodial services. Recommendation Approve the Exclusive Use Agreement and authorize the City Manager to execute the agreement. Approved by: Pat Kilroy, Director of Parks and Recreation Department _A, Approved by: Robert A. Brady, City Manager AGENDA ITEM NO, 12 Page I of 12 Page 2 of 12 EXCLUSIVE USE AGREEMENT BETWEEN THE LAKE ELSINORE UNIFIED SCHOOL DISTRICT AND THE CITY OF LAKE ELSINORE This Exclusive Use Agreement ("Agreement') is entered into by and between the Lake Elsinore Unified School District, a school district organized and existing under the laws of the State of California ("District') and the City of Lake Elsinore, California, a municipal corporation and general law City organized under the laws of the State of California ("City"), on this the 11`h day of March 2010, for the use of District Facilities for community, recreational and educational purposes. The City and District are sometimes together hereinafter referred to as "Party" or "Parties". RECITALS WHEREAS, the District is charged with the authority pursuant to Education Code Section 10900 et seq. to promote and preserve the health and general welfare of the people of the state of California and to cultivate the development of good citizenship by provision for adequate programs of community recreation; WHEREAS, pursuant to Education Code Section 10905, the District is empowered to enter into a cooperative agreement with the City for this purpose; WHEREAS, pursuant to Education Code 10910 the governing body of the District may authorize the use of District buildings, grounds, and equipment to carry out community recreational goals, so long as the community recreational purpose to be served will not interfere with the use of the District facilities for any other purposes of the public school system; WHEREAS, THE District owns and operates certain real property known as Terra Cotta Middle School located at 29291 Lake Street, Lake Elsinore, California and the athletic fields located thereon ("District Facilities). The governing board of the District has determined that the use of the District Facilities by the City will serve to promote, preserve, and cultivate programs of community recreation; WHEREAS, the City desires to use the District Facilities for community and recreational purposes; WHEREAS, the City and the District have determined that, through cooperative efforts, the needs of students and families can best be met through the pooling of public resources; and WHEREFORE, the District and the City hereby enter into this Agreement under the following terms and conditions: LEUSD-City Exclusive Use Agreement- Gym at Terra Cotta Middle School Page 3 of 12 TERMS AND CONDITIONS 1. Facilities 1.1 The District Facilities subject to this Agreement shall be the District athletic fields and gymnasium located at Terra Cotta Middle School as described above. No other District Facility shall be subject to this Agreement. 1.2 Except as otherwise provided in this Agreement, the District shall be fully responsible for the operation and maintenance of the District Facilities which are the subject of this Agreement. The City's exclusive use of the District Facilities shall not in any way effect or abrogate the District's operational and maintenance responsibilities. 2. Term of the Agreement 2.1 The term of this Agreement shall be for twenty-five years from the date of execution of this agreement. 2.2 Both the City and the District must agree in writing that this Agreement shall be renewed. Failure to create a written agreement of renewal before the twenty-five year anniversary date of this Agreement shall result in the lapse and termination of this Agreement. The City and the District must agree in writing to amend or modify the terms of the Agreement as may be appropriate or necessary. 2.3 The City and the District have the right to terminate this Agreement by providing thirty (30) days written notice to the other Party that thirty (30) days from the date of such writing, this Agreement shall be terminated. 3. Priority of Use 3.1 The District shall have exclusive use of all District Facilities during school hours 5:30 am to 4:30 pm, Monday through Friday. The City shall have exclusive rights to the gymnasium from 6:00 am to 10:00 pm on Saturday, Sunday and holidays. The City shall also have exclusive rights to the gymnasium from 4:30 pm to 10:00 pm, four days of each week Monday through Friday. In support of the various educational programs provided by the District, the District shall upon mutual agreement with the City be given exclusive rights to the gymnasium one day each week from 4:30 pm to 10:00 pm Monday through Friday. Exclusive is defined as not sharing the gymnasium with others when scheduled by the District or the City on the master calendar. LEUSD-City Exclusive Use Agreement - Gym at Terra Cotta Middle School Page 4 of 12 4. Scheduling and Use of Facilities 4.1 No person shall possess any alcoholic beverages, tobacco or nicotine products, or any controlled substance listed in Chapter 2 (commencing with Section 11053) of Division 10 of the Health and Safety Code while on the grounds of Terra Cotta Middle School at any time. 4.2 To avoid conflicts in usage of the District Facilities, the District and the City agree to mutually develop and to abide by a master schedule ("Master Schedule") setting forth dates and times each party shall be entitled to use the District Facilities. The Master Schedule may be modified at any time by written mutual agreement between the District and the City. 4.3 The Parties agree that they shall, at all times, keep each other appraised of all community or school groups utilizing the District Facilities. The Parties shall provide this information on the Master Schedule. The City agrees to secure prior approval from the District for any use of District Facilities. 4.4 The District reserves the right to reasonably refuse any community group use of the District Facilities. 4.5 It shall be the sole responsibility of the City to notify and require any group or organization utilizing the District Facilities, to provide its own supervision for activities conducted on the District Facilities. 4.6 All groups utilizing the District Facilities shall be responsible for obtaining all necessary City, county, or state of California permits, licenses or other approvals required with respect to the activities to be conducted on the District Facilities. 4.7 The District Facilities shall be left free and clear of any and all litter, waste, and/or refuse left by any of the participants involved in activities on the District facilities. The City shall clear any and all litter, waste and /or refuse prior to any and all District use or the District shall assess a fee payable by the City limited to the actual costs associated with clearing litter, waste and/or refuse left by any group, organization or participant. 4.8 All groups, organizations, or participants utilizing the District Facilities must abide by all policies and procedures of the District for the use of the District Facilities. The District shall provide the City with copies of such policies and procedures. The City shall provide groups, organizations, and participant's policies and procedures for use of the District Facilities. 5. Supervision 5.1 Each of the Parties hereto shall install, repair, maintain and be responsible (including the risk of loss) for all equipment that either party may own. Any damage or loss to any personal property, including but not LEUSD-City Exclusive Use Agreement- Gym at Terra Cotta Middle School Page 5 of 12 limited to, left on District Facilities after hours of exclusive use as provided, shall be of no fault of the other Party. 5.2 The District shall provide the City with exclusive use of one of the secure storage areas (approximately 200 ftz) that is located in the gymnasium. 5.3 In performing the terms of this Agreement, the City and District each remain an autonomous and separate entity, solely responsible for its own actions and those of its officials, officers, employees, volunteers and agents. No relationship of employment, agency, partnership orjoint venture is to be created by or implied by this Agreement. 6. Fees for Use 6.1 The District shall provide the utilities, including but not limited to, electrical power and water, custodial services, and normal maintenance and upkeep of the District Facilities, including upkeep of equipment, fixtures, and apparatus located thereon. 6.2 The City agrees to pay any additional utility and custodial cost directly related to its use of the gymnasium. The City shall pay all costs reasonably attributable to its use of the gymnasium. 7. Damage to Facilities 7.1 If the District Facilities, while being used pursuant to this Agreement, are damaged in any way, except for ordinary wear and tear, by any organization, entity, group, or individual permitted to use the District Facilities by the City, the District may charge and assess the City any amount necessary to repair, replace or repay any and all damage incurred. The District may thereafter deny future use of District Facilities to the responsible party, organization, entity or group. 8. Maintenance of Facilities 8.1 Except as otherwise provided in this Agreement, the District agrees to repair and maintain, at its sole cost and expense, the District Facilities which are the subject of this Agreement, in a condition which is safe, clean, operable, and usable for the designated and negotiate d use and purpose under this Agreem ant. The City shall notify the District of any hazardous or unsafe condition on the District Facilities so that the District may promptly remedy the unsafe condition. 8.2 The City, at its sole cost and expense, agrees to provide a one-time capital outlay to construct a gymnasium and Terra Cotta Middle School as fully described in Exhibit A attached hereto and which by this reference is made a part hereof. The estimated cost for this one-time capital layout is Seven Hundred and Fifty Thousand Dollars ($750,000). In no event shall the costs of this one-time capital outlay exceed Seven Hundred and Fifty Thousand Dollars ($750.000) without the written approval of the Parties. LEUSD-City Exclusive Use Agreement - Gym at Terra Cotta Middle School Page 6 of 12 9. Insurance 9.1 Minimum Scope of Insurance. City shall procure and maintain throughout the term of this Agreement, at its sole cost and expense, the following types of insurance to govern its use of the District Facilities: (1) a comprehensive general liability and property damage insurance and (2) worker's compensation insurance (as required by law) and employers' liability insurance ("Insurance Policies'). Such Insurance Policies shall insure against all claims for death and injuries to persons and damages to property which may arise from or in connection with the City's use Facilities. 9.2 Minimum Limits of Insurance. Coverage shall provide limits no less than: Cl-) General Liability: $1,000,000.00 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the Agreement or the general aggregate limit shall be twice the required occurrence limit; and (2) Workers' Compensation and Employers' Liability: Workers' Compensation limits as required by the Labor Code of the State of California. Employers' liability limits of $1,000,000.00 per accident for bodily injury or disease. 9.3 Insurance Endorsements The Insurance Policies shall contain the following provisions, or the City shall provide endorsements to add the following provisions to the Insurance Policies: 9.3.1 General Liability The general liability policy shall be endorsed to state that: (A) the non-insuring Party and its directors, officials, officers, employees and agents shal I be covered as additional insured with respect to the performance of the Agreement by the insuring Party and its officials, officers, directors, administrators, agents, representatives, employees or volunteers, including materials, parts or equipment furnished in connection with such services; and (B) the insurance coverage shall be p rimary insurance as respect to the non-insur ing Party and its directors, officials, officers, employees and agents, or if excess, shall stand in an unbroken chain of coverage excess of the insuring Party's scheduled underlying coverage. Any insurance or self-insurance maintained by the non-insuring Party or its directors, officials, officers, employees and agents shall by excess of the insuring Party's insurance and shall not be called upon to contribute with it in any way. 9.3.2 Workers' Compensation and_EmPlovers Liabilitv Coveraae The insurer shall agree to waive all rights of subrogation against the non-insuring Party and its directors, officials, officers, employees and agents for losses paid under the terms of the insurance policy which arise from work performed by the insuring party. LEUSD-City Exclusive Use Agreement - Gym at Terra Cotta Middle School Page 7 of 12 9.3.3 All Coverage Each insurance policy required by this Agreement shall be endorsed to state that coverage shall not be suspended, voided, reduced or cancelled except after thirty (30) days prior written notice by first class mail has been given to the non-insuring Party. 9.4 Separation of Insured's: No Special Limitations The Insurance Policies required by this Section shall contain standard separation of insured's provisions. In addition, such Insurance Policies shall not contain any special limitations on the scope of protection afforded to the non-insuring Party or its directors, officials, officers, employees and agents. 9.5 Acceptability of Insurers Insurance is to be placed with; (1) insurers with a current A.M. Best's rating no less than A;V III, licensed to do business i n California, and satisfactory to the non-insuring Party; or (3) under a self insurance program acceptable to the non-insuring Party. Any deductible under the Insurance Policies issued shall be the responsibility of, and paid by, the insuring Party. 9.6 Verification of Coverage The District shall have the right of reasonable approval over any Insurance Policy obtained by the City. The City shall furnish original certificates of insurance and endorsements effecting coverage required by this Agreement. The certificates and endorsements for each policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. The District reserves the right to require complete, certified copies of the required Insurance Policies at any time. The District may at any time review the insurance coverage obtained by the City, the coverage limits, the provider, or the form of the policy and may require that alternate or modified coverage be obtained if, in Districts prudent business judgment, the policy is insufficient to provide adequate protection against the kind and extent of risk that is foreseeable for the use of District Facilities under this Agreement. 10. Indemnity 10.1 City to Indemnify The City hereby agrees to indemnify, defend, and hold the District and its officials, officers, employees, volunteers, and agents harm less against and from any liability for any claim, action or proceeding against the District that arises solely out of any negligent acts, omissions, or willful misconduct by the City and its officials, officers, employees, volunteers and agents in the performance of any act related to the subject matter of this Agreement. In its sole discretion and at its own cost and expense the District may participate in the defense of any such claim, action or proceeding, utilizing legal counsel of its choice; however, such participation shall not relieve the City of any obligation imposed pursuant to this Agreement. The District shall promptly notify the City of any such claim, action or proceeding and shall cooperate fully in the defense of the same. LEUSD-City Exclusive Use Agreement - Gym at Terra Cotta Middle School Page 8 of 12 10.2 District to Indemnify The District hereby agrees to indemnify, defend, and hold the City and its officials, officers, employees, volunteers, and agents harm less against and from any liability for any claim, action or proceeding again st the City that arises solely out of any negligent acts, omissions, or willful misconduct by the District and its officials, officers, employees, volunteers, and agents in the perf ormance of any act related to the subject matter of this Agreement. In its sole discretion and at its own cost and expense, the City may participate in the defense of any such claim, action or proceeding, utilizing legal counsel of its choice; however, such participation shall not relieve the District of any obligation imposed pursuant to this Agreement. The City shall promptly notify the District of any such claim, action or proceeding and shall cooperate fully in the defense of the same. 10.3 Claims Arising from Joint Acts or Omissions The City and the District, respectively, shall provide its own defense with respect to any claim, action or proceeding that arises out of the joint acts or omissions of the parties arising from this Agreement. In such situation, both the City and the District shall retain its own legal counsel and shall bear its own defense costs. Each party shall waive any right to reimbursement of defense costs from the other. 10.4 Joint Defense Notwithstanding, the provisions of Section 10.3 above, the City and the District may agree in writing to a joint defense of any, claim, action or proceeding that arises out of the joint acts or omissions of the Parties. Any such agreement may provide that the Parties appoint mutually agreeable legal counsel to defend such claim, action or proceedings. In such a case, the Parties s hall bear equally the cost of any joint defense and any amount paid by the Parties in settlement of, or as a result of a court judgment, arbitration or mediation award related to the claim, action or proceeding, if any. The Parties shall also share equally in any amount awarded to or received by both Parties in settlement of, or as a result of, a court judgment, arbitration or mediation award of such a claim, action or proceeding. Neither Party may bind the other Party to any settlement of such a claim, action or proceeding, without the express written consent of the other Party. 10.5 Comparative Fault Notwithstanding any provision contained herein to the contrary, in the event of any settlement, court judgment, or arbitration or mediation award that allocates or determ ines the comparative fault of the Parties, either Party may seek the reimbursement from the other Party, of defense costs, settlement payments, judgments or awards, that are consistent with such comparative fault to the extent that such settlement, judgment, ward, payment or cost are not covered by insurance the Parties are required to maintain under this Agreement. LEUSD-City Exclusive Use Agreement - Gym at Terra Cotta Middle School Page 9 of 12 11. Entire Agreement 11.1 This Agreement and the terms herein stated shall constitute the entire Agreement between the District and the City and supersedes all prior written and verbal agreements, representatives, promises or understandings between the parties. Any amendment to this Agreement, or its terms, must be made in writing and be executed by both parties. 12. Survival Clause 12.1 If any provision of this Agreement, the deletion or modification of which would not adversely affect the receipt of any material benefit by either party, is declared by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of this Agreement shall not be affected thereby and shall continue to be valid and enforceable to the fullest extent permitted by law unless the Agreement is modified, revoked, or terminated by the Parties. 13. Assignment and Sublease 13.1 This Agreement or any interest of either party herein shall not at any time after the date hereof, without the prior written consent of the other Party, be assigned or transferred. The Parties shall at all times remain liable for the performance of the covenants and conditions to be performed pursuant to this Agreement, notwithstanding any assignment or transfer which may be made. 14. Operational Contacts 14.1 The District and the City shall provide each other with the names and telephone numbers of personnel that are responsible for the day to day operations of programs and facilities including afterhour's contacts in the event of emergency situations. Said list to be updated as needed based on personnel changes. 15. Notices 15.1 All notices, statements, demands, requests, consents, approvals, authorizations, appointments or designations hereunder by either Party to the other shall be in writing and shall be sufficiently given and served upon the other Party, if sent by United States registered mail, return receipt requested, postage prepaid and addressed as follows: City: City of Lake Elsinore 130 S. Main Street Lake Elsinore, CA 92530 Attn: City Manager District: Lake Elsinore Unified School District 545 Chaney Street Lake Elsinore, CA 92530 LEUSD-City Exclusive Use Agreement - Gym at Terra Cotta Middle School Page 10 of 12 Attn: Superintendent of Schools Either Party may change its address by giving notice to the other Party in the manner provided for in this section. 16. Non-Discrimination 16.1 Each of the Parties hereto covenant by and for itself, its administrators and assigns, and all persons claiming under or through it, that this Agreement is made subject to the condition that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the use, occupancy or enjoyment of the Premises subject to this Agreement. 17. Waiver 17.1 The failure of either Party to assist upon strict performance of any of the terms, conditions or covenants in this Agreement shall not be deemed a waiver of any right or remedy for a subsequent breach or default of the terms, conditions or covenants herein contained. 18. Counterparts 18.1 This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but al I of which taken together shall constitute one in the same Agreement. 19. Attorneys Fees 19.1 If either Party commences an action against the other Party, legal, administrative or otherwise, arising out of or in connection with this Agreement, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party reasonable attorney's fees and all other costs of such action. LEUSD-City Exclusive Use Agreement - Gym at Terra Cotta Middle School Page 11 of 12 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement in duplicate originals as of the date first set forth above. Dated: ATTEST: DISTRICT SECRETARY By: APPROVED AS TO FORM: By: District Counsel Dated: By: ATTEST: CITY CLERK By: Deborah Thomsen APPROVED AS TO FORM: By: City Attorney "DISTRICT" LAKE ELSINORE UNIFIED SCHOOL DISTRICT Superintendent "CITY" CITY OF LAKE ELSINORE, City Manager LEUSD-City Exclusive Use Agreement - Gym at Terra Cotta Middle School Page 12 of 12