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HomeMy WebLinkAbout2014-08-26; City Council; Resolution 2014-2071 RESOLUTION NO. 2014-207 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING THE JOINT USE AND COMMUNITY RECREATION AGREEMENT BETWEEN CARLSBAD UNIFIED SCHOOL 4 DISTRICT AND CITY OF CARLSBAD TO MAINTAIN AND UTILIZE MULTIPURPOSE FIELD AREAS, TENNIS COURTS AND SCHOOL 5 GROUNDS. 6 y WHEREAS, a Joint Use and Community Recreation Agreement between Carlsbad Unified 8 School District and City of Carlsbad is necessary for the Parks & Recreation Department to 9 maintain and utilize designated multipurpose fields, tennis courts and school grounds to 10 • , . . , J provide for community recreational needs, and; 11 WHEREAS, the existing agreement has been revised and updated to accurately reflect 12 current and new maintenance and use responsibilities of both the City and the District, and; 14 WHEREAS, the City Council and the Carlsbad Unified School District Governing Board are 15 in accord with the terms ofthe attached agreement (Exhibit 2), NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California, as follows that: 1. The above recitations are true and correct. 2. That the Joint Use and Community Recreation Agreement between Carlsbad 16 17 18 19 20 21 Unified School District and City of Carlsbad attached hereto and made a part hereof 22 is approved 23 24 25 26 27 28 // // // // 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council ofthe City of Carlsbad on the 26*'' day of August, 2014, by the following vote to wit: AYES: NOES: Council Members Hall, Packard, Wood, Schumacher, Blackburn. None. ABSENT: None. ATTEST: .uBARBARA ENGLESON, <^V^ Clerk Exhibit A JOINT USE AND COMMUNITY RECREATION AGREEMENT BETWEEN CARLSBAD UNIFIED SCHOOL DISTRICT AND CITY OF CARLSBAD THIS AGREEMENT ("Agreement") made and entered into as ofthe 4 day ofVtlcdmbZA , 2013, by and between CITY OF CARLSBAD, a municipal corporation, hereinafter referred to as "City" and the Carlsbad Unified School District, State of California, hereinafter referred to as "District". WITNESSETH WHEREAS, the governing bodies ofthe City and District are mutually interested in an adequate program of community recreation under the auspices ofthe City Parks & Recreation Department, in cooperation with the District; and WHEREAS, cities and school districts are authorized by Chapter 10 of Part 7 of Division 1, Title 1 ofthe Education Code ofthe State of California (sections 10900-10914.5) to facilitate a community recreation program and activities within or without their territorial limits; and WHEREAS, said governing bodies are authorized to enter into agreements with each other, to promote the health and general welfare ofthe community and contribute to the attainment ofthe general recreation objectives for the children and adults within the community; and WHEREAS, the City has established a "Paries & Recreation Department" responsible for caring out the purposes of community recreation; and WHEREAS, in the interest of providing the best service with the least possible expenditure of public funds, cooperation between the City and the District is necessary; WHEREAS, the purpose ofthis Agreement is to define the City's joint use of District facilities, with separate agreements governing the District's use ofthe City's aquatic facilities. NOW, THEREFORE, the City and District agree as follows: 1. The District will make available to the City certain school buildings (gymnasiums), and multi- purpose fields, and related equipment at select school sites (coiiectively, "Joint Use Facilities") for the purpose of facilitating a diversified community recreational program. The Joint Use Facilities to be utilized pursuant to this Agreement shall include those specified in Section 10 ofthis Agreement, or any other such facilities that are subsequently agreed to in writing by the District and City, as approved by the City Manager and the District's Superintendent ("Superintendent") or their designated representatives. 1 I Page Exhibit A 2. The use of the Joint Use Facilities pursuant to this Agreement shall be in accordance with the regular procedures of the District in granting requests for use of school facilities, as specified by Chapter 10 (commencing with Section 10900) of Part 7, Division 1, Title 1 of the Education Code for the State of California and the policies, rules and regulations ofthe District's Governing Board ("District Board"). 3. The recreation programs scheduled by the City at the Joint Use Facilities shall be open on equal terms to all persons residing within the boundaries ofthe District and City, but such participation shall be subject to rules and regulations adopted by the City Council and the School District. It shall be the responsibility ofthe City to enforce the adherence of its permitted user groups to all rules and regulations established by the City and the District at the Joint Use Facilities. Failure to follow established rules and regulations may result in the denial of a request to use or access the Joint Use Facilities. If the District is Impacted by the failure of a City scheduled user group to follow the rules and regulations, the District may in cooperation with the City, terminate the right of that user group to utilize the Joint Use Facilities. 4. A schedule of dates for the use of the Joint Use Facilities will be coordinated in advance by the City and the District through separate scheduling agreements prepared biannually. The schedule will be arranged as to avoid conflict between school and other recreational use. The scheduling of said facilities by the Parks & Recreation Department for the purposes specified in this Agreement shall have second priority to those school events and programs scheduled by the District consistent with the biannual scheduling agreement. 5. In the event of any dispute or conflict arising as a result of the recreation program being conducted at the Joint Use Facilities, said dispute or conflict shall be settled by appealing to the City Manager and the Superintendent ofthe District ("District Superintendent"), in accordance with established policies and procedures ofthe District and City. 6. The Parks & Recreation Department will provide or cause to be provided all expendable materials (i.e. bats, balls, etc.) necessary for facilitating the recreational programs for all ages that will be conducted at the Joint Use Facilities, to the extent scheduled and conducted by the Parks & Recreation Department. 7. The City may install and will maintain irrigation systems, turf, ground cover, shrubs, trees, related amenities (backstops, dugouts, fencing, benches, etc.), and additional recreational equipment not in conflict with school use, on school property in areas agreed upon by the City Manager or designee, subject to the prior approval by the District Superintendent. The City will provide general landscape and grounds maintenance services of multipurpose fields including, but not necessarily limited to irrigating, mowing, aerating, fertilizing, renovating, weeding, trimming, staking, disease treating, rodent/pest controlling (NO FUMIGATION ALLOWED ON DISTRICT SITES), and litter/trash collecting, as well as related amenities/equipment maintenance, including, but not limited to, sanding, painting, strapping, tying, anchoring, graffiti removal, and drainage. The City and/or its agents shall have the right to daily access to the involved properties for maintenance purposes as needed, subject to applicable City ordinances and reasonable regulation by the District for 2 I Page Exhibit A purposes of monitoring and protecting student safety. The City will provide the District Facilities Department a current "Schedule of Maintenance" for all sites listed in Section 10 ofthis Agreement, as well as those sites added pursuant to Section 1 ofthis Agreement. Any plans, specifications, and installations of new equipment or new construction of facilities for community recreation purposes or otherwise shall be at the City's expense, shall have prior approval by the District Superintendent, shall meet standards established in the Caiifornia Education Code and Code of Regulations, and shall receive the approval, as required, ofthe California Division ofthe State Architect ("DSA"). All structures on school grounds shall be constructed or modified in strict compliance with the requirements of DSA. 8. All structures or improvements constructed on the Joint Use Facilities site or installed thereon by City with the District's approval (the "Improvements"), shall become and thereafter remain the property ofthe District AS-IS and without any warranty ofany kind. The District may require the City, at the City's expense, to immediately remove any unapproved new structures that are installed in violation ofthe requirement of DSA or the Field Act, as set forth in Articles 3 and 6 (commencing with Sections 17280 and 17365, respectively) of Chapter 3, Part 10.5, Division 1, Title 1 of the Education Code. 9. Prior to the installation by the City of any improvements, as mutually agreed upon by the City and the District, the City and District shall agree on the fair market value and anticipated service life of said improvement. Should the District exercise its option to terminate all or part ofthe Joint Use and Community Recreation Agreement, a prorated value for the specific improvement shall be assessed and paid to the City by the District. 3 I Page 7 Exhibit A 10. The District and the City agree to the use of the following specific Joint Use Facilities: a. The City has the option to schedule the use of approved Joint Use Facilities, subject to the limitations set forth in this Agreement. b. The City will maintain the multipurpose field areas and/or school grounds on the following "Joint Use Facilities": Magnolia Field 4.0 acres Jefferson Field 2.30 acres Buena Vista Lower Fieid 2.48 acres Carlsbad HS Tennis Courts 1.26 acres Valley Middle School 8.5 acres (Upper and Lower Fields (including adjoining slopes) Aviara Oaks Middle School Field 3.17 acres Kelly Field 2.90 acres Hope Fieid 2.80 acres Totaling 27.41 acres c. City will have access during scheduled use to the parking lots affiliated with the listed schools above, unless they have been previously scheduled by the District for District use consistent with the biannual scheduling agreement. d. City may schedule the after-school, weekend, holiday, and summer use of all District approved school grounds and multipurpose fields, when available and not already scheduled for District use consistent with the biannual scheduling agreement. e. The City may utilize the School buildings (gymnasiums) provided applicable rental requirements are satisfied and a standard fee established and approved by the District is paid. 11. Except as expressly provided in this Agreement, the District shall be responsible for all costs relating to maintenance, repair, and replacement of District owned and maintained facilities and grounds. 12. For the purposes of this Agreement, all persons employed in the performance of services and functions for City shall be deemed City employees and no City employee shall be considered to be an employee of the District or under the jurisdiction of the District, nor shall such City employees have any 4 I P a g e Exhibit A District pension, civil service, or other status while an employee ofthe City. The District shall not be responsibte for the payment of any salary, wage, or other compensation to any City personnel performing services hereunder for City. City shall not be liable for compensation or indemnity to any District employee for injury or sickness or wages arising out of his/her employment with District. 13. The District agrees that during the time that the City has use of the Joint Use Facilities, City may charge admissions fees for amateur athletic contests, demonstrations or exhibits, and other educational and non-commercial events. Such fees shall be levied and collected by the City, and shall remain the property of the City. Admission fees, however, may not be charged for any other type of events. In the use of Joint Use Facilities under this Agreement, City agrees to comply with ail ofthe requirements of the Education Code, including, but not limited to, the Civic Center Act as set forth in Education Code Section 38130 etseq., setting forth the limitations, requirements, and restrictions on the use ofthe Joint Use Facilities, and the fees that may be charged forthe use thereof. 14. It is understood and agreed that all activities at the Joint Use Facilities sponsored by District shall be supervised and conducted by District, and that all activities facilitated by City at the Joint Use Facilities, pursuant to this agreement, shall be monitored by City staff as necessary. Each party shall be responsible for said areas during their period of use, and will bear the costs of all necessary supervising or teaching personnel during said period. 15. Insofar as it is legally authorized, the District shall hold free and harmless and defend the City, members ofthe City Council, boards or commissions, its employees, officers, agents, and volunteers, while acting as such ("City Agents"), from all claims, losses, damages, costs, expenses or liability which may arise by reason of liability imposed by law because of injury to property or injury to or death of persons, received or suffered by reason of or result of (1) any defective or dangerous condition of any ground, site, building, equipment, play areas recreation facilities or other improvement located on the Joint Use Facilities owned and maintained by District, or (2) participation in any activity carried out or sponsored by the District, or (3) any school activity being conducted on said premises by the District. Notwithstanding the foregoing, in no event shall the District be required to indemnify, hold harmless, or defend the City for any claims, losses, damages, costs, expenses, or liabilities to the extent arising from the City or the City /Agents' sole or active negligence or willful misconduct, or from defective or dangerous conditions either caused by the City or the City Agents, or those known by the City or the City /^ents and not reported to the District. 16. Insofar as it is legally authorized, the City shall hold free and harmless and defend the District, members ofthe Board of Trustees, its employees, officers, agents, and volunteers, while acting as such ("District Agents"), from all claims, loss, damages, costs, expenses or liability which may arise by reason of liability imposed by law because of injury to property or injury to or death of persons, received or suffered by reason of or result of (1) operation by the City of a City recreational program on or at the Joint Use Facilities, (2) the City's development ofthe athletic fields on or at the Joint Use Facilities or the City's performance of its obligations under this Agreement, or (3) a direct result of any recreational activity being conducted on the Joint Use Facilities by the City. Notwithstanding the foregoing, in no event shall the City be required to indemnify, hold harmless, or defend the District for any claims, losses, 5 I Page Exhibit A damages, costs, expenses, or liabilities to the extent arising from the District or the District Agents' sole or active negligence or willful misconduct. For all purposes of this Agreement, the use by any individual or group of the Joint Use Facilities as a result of the City's rights hereunder shall be deemed a use by the City of the Joint Use Facilities. The City's obligations under this section shall include the obligation to defend, indemnify, and hold harmless the District from and against any Workers' Compensation suits, liability, or expense arising from or connected with services performed on behalf of the City by any person pursuant to, or as a result of, this Agreement, or by way of their employment with the City. 17. The District shall carry property damage and public liability insurance that cover the Joint Use Facilities and other areas and activities set forth in this Agreement. The City's property damage and public liability insurance shall include all areas and activities set forth in this Agreement under their self- insurance program. Each party shall maintain limits of no less than (1) general liability coverage of at least $5,000,000 per occurrence, $10,000,000 aggregate for bodily injury, personal injury, and property damage, and (2) workers' compensation coverage in an amount sufficient to satisfy statutory limits and employer's liability in the amount of $1,000,000 per accident for bodily injury or disease. For the General Liability policy, the other party, as well as their council members, board members, officers, officials, employees, agents, volunteers, and contractors, shall be named as additional insured's, with an endorsement evidencing such coverage to be provided to the other Party. Said coverage shall be primary insurance as respects the other Party, and its council members, board members, officers, officials, employees, agents, volunteers, and contractors. Any deductibles or self-insured retentions in excess of $10,000 must be declared to and approved by the other Party. A policy of self-insurance may satisfy the foregoing obligations. The Parties shall furnish the other Party with original certificates and amendatory endorsements evidencing the coverage required herein, and complete certified copies of the underlying policies shall be provided on request. 18. The parties hereto acknowledge that there have been no representations made by either to the other not contained herein upon which either party is relying which has induced execution herein. This agreement embodies the entire agreement and understanding between the parties hereto relating to the subject matter hereof. 19. The City and its permitted user groups shall have only access to those area specified in this Agreement. The City and its permitted user groups shall not trespass or loiter in other areas of the school sites. 20. The term of this Agreement shall be for a length of ten years, renewable by mutual agreement between the City and the District. In addition, the terms of this Agreement may be modified at any time by mutual consent and written agreement ofthe respective parties. 21. Nothing in this Agreement is intended to affect the District's fee ownership of the Joint Use Facilities. The City shall neither encumber, nor permit the encumbrance of, any portion ofthe Joint Use Facilities. The City shall neither record, nor permit the recording of, any lien, including any mechanics or other liens or encumbrances of any nature with respect to the Joint Use Facilities. The City shall not 6 j Page Exhibit A pledge, assign or transfer, or collaterally assign, pledge or transfer any portion of the Joint Use Facilities, including any improvements thereon. 22. Nothing in this Agreement shall be construed to prohibit the District from participating financially in a specific recreation program when mutually agreed upon bythe Board and the City Council. 23. This Agreement shall be binding upon and inure to the benefit ofthe heirs, successors, and assigns ofthe Parties. The City shall not, without written consent ofthe District, assign its rights and/or obligations under this Agreement without the consent of the District. The District shall not, without written consent ofthe City, assign its rights and/or obligations under this Agreement without the consent of the City. 24. If any Article, Section, Subsection, term, provision, covenant or condition ofthis Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining Articles, Sections, Subsections, terms, provisions, covenants and conditions ofthis Agreement shall continue in full force and effect. 25. Failure by either Party to enforce any term, condition, restriction, or provision of this Agreement, in any certain instance or on any particular occasion, shall not be deemed a waiver of such enforcement right with respect to that or any future breach of the same or any other term, condition, restriction or provision herein. 26. Non-performance by any Party of any obligation set forth herein shall be excused when it is reasonably prevented or delayed by reason of any act, event, or condition reasonably beyond the control of that Party for any of the following reasons: (i) war, insurrection, significant and substantial civil commotion, riot, flood, severe weather, earthquake, fire, casualty, acts of public enemy, acts of God, governmental restriction other than ofthe non-performing Party, litigation (including, without limitation, litigation contesting the validity of, or seeking the enforcement or clarification of, this Agreement whether instigated by the District, City, or any other person or entity), acts or failures to act of any governmental agency or entity other than the non-performing Party; (ii) inability after best efforts to secure necessary labor, materials or tools, strikes, lockouts, other labor disputes, or delays of any contractor, subcontractor or supplier; or (iii) inability after best efforts to obtain and consummate necessary financing, or delays caused by any lender or third party relating thereto, provided, however, that any delay based upon this clause shalt not be excused beyond one year. 27. This Agreement and all rights and obligations arising out of it shall be construed in accordance with the laws ofthe State of California. Any arbitration, litigation or other proceeding arising out ofthis Agreement shall be conducted only in the County of San Diego. 28. In interpreting this Agreement, it shall be deemed to have been prepared by the Parties jointly and no ambiguity shall be resolved against either Party on the premise that it or its attorneys was responsible for drafting this Agreement or any provision hereof. The captions or headings set forth in 7 I Page Exhibit A this Agreement are for convenience only and in no way define, limit, or describe the scope or intent or any Article, Section, or other provision hereof. 29. Nothing in this Agreement shall be construed as authorizing the recovery by, or award to, the prevailing Party in any action or other proceeding arising from this Agreement of attorneys' fees, costs, and expenses. 30. The Recitals stated herein are hereby incorporated into, and are effective and operative parts of, this Agreement. 31. This Agreement may be terminated without cause by either party as of June 30 of any fiscal year for any reason upon at least 180 days' written notice to the other. In the event of a default of any obligation by either party, the non-defaulting party shall be entitled to terminate this Agreement with 30 days' notice, provided the non-defaulting party has first provided the defaulting party with a notice of default and a 60-day opportunity to cure said default. 32. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Signature pages may be detached from counterpart originals and combined in one or more copies ofthis /Agreement to physically form copies of this Agreement having original signatures of both Parties. 8 I Page Exhibit A ATTEST: Barbara Engleson, <^ity Clerk CITY OF CARLSBAD, a muoicipal Corporation ofthe State of California Matt Hall, Mayor CARLSBAD UNIFIED SCHOOL DISTRICT APPROVED AS TO FORM: CELIA BREWERrCifvTtttorney Assistant City Attorney 9 I Page