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HomeMy WebLinkAboutItem 1d - Appropriation for City's Shared Costs for replacement of Synthetic Track at Arcadia High School DATE: August 15, 2017 TO: Honorable Mayor and City Council FROM: Tom Tait, Public Works Services Director Sara Somogyi, Director of Recreation and Community Services SUBJECT: APPROPRIATION IN THE AMOUNT OF $266,666.67 FROM THE CAPITAL OUTLAY RESERVE FUND FOR THE CITY’S SHARED COST FOR THE REPLACEMENT OF THE SYNTHETIC TRACK AT ARCADIA HIGH SCHOOL Recommendation: Approve SUMMARY In 2014, the City of Arcadia entered into a Master Joint-Use Agreement (“Agreement”) with Arcadia Unified School District (“AUSD”) to share use and costs for improvements at AUSD-owned property for the general educational and recreation objectives of the community. The agreement set forth basic terms applicable for the mutual benefit of both parties that include ongoing maintenance and operational costs as well as shared capital improvement costs. A key component was the shared cost for the latest synthetic track installation at Arcadia High School. In this case, the cost was divided by the School District, City, and the sponsors of the annual Arcadia Invitational Track Meet. Maintenance, repair, and operations costs have been included in the City’s operation budget, but the City’s shared cost for the synthetic track installation was inadvertently left out of the Capital Improvement Budget. Therefore, it is recommended that the City Council approve an appropriation in the amount of $266,666.67 from the Capital Outlay Reserve Fund for the City’s shared cost of the synthetic track installation at Arcadia High School. BACKGROUND The 2014 Master Joint-Use Agreement includes language about the shared costs for the Arcadia High School synthetic turf field and quarter mile track. The City and AUSD agreed to replace the synthetic turf field in Fiscal Year 2014-15 and the track in FY 2016- Appropriation for City’s Shared Costs of the Synthetic Track at Arcadia High School August 15, 2017 Page 2 of 2 2 17. The work on the Track has been completed and AUSD has invoiced the City for its cost share. Based on evaluations of actual use over a two year period, it was determined and agreed that the City would have a 33% share of the $800,000 capital cost for the replacement of the track. This comes out to a total cost of $266,666.67. AUSD and the sponsors of the Invitational Track Meet will pay the remaining share. As a result, the City has the ability to allocate pre-determined evening and weekend hours for City and third party non-profit organizations, and provide open track use after Arcadia High School hours. Under these terms the City also has the ability to recover its costs by charging for usage during designated hours. Attached is a copy of the Agreement with AUSD. FISCAL IMPACT Maintenance, repair, and operations costs have been included in the City’s operation budget, but the City’s shared cost for the synthetic track installation was not included in the adopted Capital Improvement budget. An appropriation in the amount of $266,666.67 from the Capital Outlay Reserve Fund is needed to pay for the City’s shared cost of the synthetic track at Arcadia High School per the Agreement. RECOMMENDATION It is recommended that the City Council approve an appropriation in the amount of $266,666.67 from the Capital Outlay Reserve Fund for the City’s shared cost for the replacement of the synthetic track at Arcadia High School and authorize and direct the City Manager to transmit the funds to the Arcadia Unified School District upon receipt of an invoice. Attachment: Master Joint Use Agreement for Use of Shared Sites rr- 9 / ( Z % 6 '1 AUSD Contract # 14-15-126 MASTER JOINT-USE AGREEMENT FOR USE OF SHARED SITES BETWEEN ARCADIA UNIFIED SCHOOL DISTRICT AND CITY OF ARCADIA July 1, 2014 1 MASTER JOINT-USE AGREEMENT FOR USE OF SHARED SITES This MASTER JOINT-USE AGREEMENT for the use of shared sites Agreement") is made as of the 1st day of July, 2014 (the "Effective Date") by and between the ARCADIA UNIFIED SCHOOL DISTRICT ("District"), a California public school district duly organized and existing under Chapter 1 of Division 3 of Title 2 of the California Education Code and the CITY OF ARCADIA, a California charter city ("City") collectively, the District and the City may be referred to herein as the "Parties" and individually as a "Party"). RECITALS A. The District and City wish to share with each other, under the terms and limitations set forth herein or as otherwise provided by the Facilities Addendums between the Parties, the use of their separately owned property (collectively "the Property") for the common general educational and recreational objectives of the community and to jointly accomplish various projects related to the improvement and use of the Property. B. The purpose of this Agreement is to establish a master agreement setting forth the basic terms applicable to the Parties' joint use of the Property. C. It is the desire of the District and the City, upon the express terms and conditions set forth in this Agreement, to jointly utilize facilities for the mutual benefit of each Party, pursuant to the terms set forth herein. D. The Facilities Addendums set forth the specific terms for each individual joint use project. E. Except as to the Joint Use Gymnasium Agreement at Dana Middle School and the agreement between the District and City entered into on October 6, 1999, entitled "Agreement Between the City of Arcadia and the Arcadia Unified School District of Los Angeles County for the Construction, Maintenance and Joint Use of the Athletic Field Lighting at Dana Middle School, First Avenue Middle School and Arcadia High School for School and Recreational Purposes", the Parties recognize and acknowledge that this Agreement supersedes any prior joint use agreements between the Parties, which prior agreements shall be of no further force or effect. F. The Parties have full authority to enter into the Agreement, including but not limited to, Education Code sections 10900 et seq. for recreational and other public uses and Education Code sections 38130 et seq. (also known as the Civic Center Act). NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties agree as follows: 1.0 DEFINITIONS. For purposes of this Agreement, the following terms mean: 1.1 "Facilities Addendum" means any separate addendum agreed to in writing by the Parties to govern the joint use of a specific Site. 1.2 "Owner" means the Party who owns a particular Site. 1.3 "Site", or "Sites", means a specific property or properties and its associated facilities in a District Owned Site or City Owned Site subject to this Agreement. 1.4 "District Owned Site(s)" means all Sites owned by the District. 1 .5 "City Owned Site(s)" means all Sites owned by the City. 2.0 TERM OF THE MASTER JOINT USE AGREEMENT. Except as provided in sections 13 and 14, this Agreement shall terminate on June 30, 2030 based on the duration of Facilities Addendum No. 1 relating to improvements at the Arcadia High School stadium. As other Facilities Addendums are negotiated, the terms of such Addendums may extend beyond June 30, 2030. To the extent the Addendums termination dates are beyond June 30, 2030, as to such Addendums, this Agreement shall be automatically extended to such date. Notwithstanding the foregoing, the term of this Agreement and of the Addendums, unless renewed in writing by the Parties, shall be forty (40) years from the Effective Date. 3.0 EMERGENCY NEED. Nothing in this Agreement or any Facilities Addendum shall limit either Owner's right to make unlimited use of all or any portion of its Sites during an emergency. For purposes of this Agreement, an emergency is any circumstance or event that the Owner, in Owner's sole discretion, deems to pose an actual or potential danger to life or property. The Parties shall exchange and keep current a list of authorized representatives, by name or by title, to be contacted in the event of an emergency. 4.0 FACILITIES ADDENDUMS. 4.1 The Facilities Addendums shall set forth the specific terms of each individual joint use project. In the event of any inconsistency between this Agreement and a Facilities Addendum, the Facilities Addendum shall govern. In the event of any additional terms that are not included in this Agreement, such terms shall apply to the individual Facilities Addendum. Otherwise, this Agreement, as the master contract, shall be deemed incorporated into each individual Facilities Addendum. 4.2 The Addendums shall be numbered consecutively beginning with Facilities Addendum No. 1 (The Arcadia High School Stadium). Each Addendum shall be considered a part of the Agreement. Exhibit A attached herewith describing the Facilities Addendums may be used, but shall not be required, by the Parties as a list of the Facilities Addendums. 3 5.0 COOPERATION. The Parties hereby agree to cooperate in coordinating programs and activities conducted on the Sites as well as other properties and facilities that may become subject to this Agreement so as to avoid conflicting or competing uses. 6.0 OWNERSHIP OF THE SITES, FACILITY, FURNISHINGS AND EQUIPMENT. 6.1 Each Owner shall retain its existing ownership interest in and to its Sites and any land, building, or improvement existing thereon as of the effective date of the applicable Facilities Addendum. No past, present, or future use of any of the Sites pursuant to this Agreement shall be interpreted as conveying any ownership or other property interests in any of the Sites. 6.2 Personal property, trade fixtures, furnishings, or equipment installed or placed on a Site by a Party after the effective date of the applicable Facilities Addendum shall remain that Party's separate property. 6.3 Upon the expiration or termination of a Facilities Addendum, the Party who is not the Owner shall remove from the Site its personal property, trade fixtures, furnishings, or equipment within thirty (30) days or longer by mutual agreement of the Parties or else such personal property, trade fixtures, furnishings, or equipment shall become the sole property of the Owner. If a Party removes any personal property, trade fixtures, furnishings or equipment from a Site of which it is not the Owner, that Party must return to its original condition that portion of the Site affected by such removal. 7.0 IMPROVEMENTS. For so long as the Agreement and the Facilities Addendums for any Sites remain in effect, and subject to appropriations, as defined in section 13.0 of the Agreement, by their applicable and respective legislative bodies, District and City shall share all costs associated with capital improvements at the Sites mutually agreed to by the Parties. Either Party may make additional capital or non-capital improvements to any Site owned by the other Party, but at all times only upon the written consent of the Owner. 7.1 The terms under which the capital improvements will be made, funded, and amortized on any Site shall be set forth in the applicable Facilities Addendum. Such terms shall include, at a minimum if applicable, (a) provisions for funding said capital improvements and (b) provision for (i) extending the term of the applicable Facilities Addendum to allow for amortization of that funding by the Party making it, (ii) waiving certain termination rights to this Agreement or the applicable Facilities Addendum, or (iii) the payment of any recoupment of non-amortized capital improvement to the Party making it. 7.2 The Party seeking to make such improvements shall be responsible for all costs associated with any improvements unless otherwise determined and agreed pursuant to an Facilities Addendum for the site of the improvements or otherwise in writing by the Parties, including but in no way limited to compliance with the California 4 Environmental Quality Act (CEQA), the Division of State Architects (DSA), the Department of Toxic Substances Control (DTSC), or the California Department of Education (CDE), unless otherwise determined and agreed, in writing, to by the Parties. 7.3 The Party which owns the Site upon which improvements are to be made, unless construction of the improvements is assumed as an obligation by the other Party, shall have the right to review and approve all project planning, design and construction, and shall have final approval of all contracts and schedules related to any such improvements. 7.4 All construction services for such improvements shall be performed by a properly licensed architect, engineer, contractor, or inspector to the extent required by law. All construction management services, if any, shall be provided either by District personnel, through its Construction Coordinator and Director of Facilities or, in the District's discretion, by a licensed contractor, architect or engineer, and shall comply with all applicable public works labor requirements, as required of school districts and charter cities and as approved by the required State agencies. Each Party reserves the right to have its employees make improvements on their respective Sites, in their reasonable discretion. 7.5 All contractors and subcontractors, and their employees and agents who enter onto District Sites for any reason or at anytime subscribed herein, shall submit or have submitted their fingerprints, without exception, as prescribed by Education Code Section 45125.1. Prior to the issuance of keys to any third-party, including contractors and sub-contractors, the District and the City shall each require said third-party, contractor or sub-contractor to acknowledge that he/she has been informed that California Penal Code Section 469 provides that any person who "knowingly makes, duplicates, causes to be duplicated, or uses. . ." or attempts to do same, or possesses any key to a public building, structure, or barrier such as a gate without authorization and with knowledge of the lack of such authorization, is guilty of a misdemeanor; and that said third-party, contractor or sub-contractor further specifically acknowledges that he/she shall be responsible for any such duplication or unauthorized use of said keys, whatsoever. 8.0 MAINTENANCE, REPAIR AND OPERATIONS. For so long as the Agreement and the Facilities Addendums for any Sites remain in effect, and subject to appropriations, as defined in section 13.0, by their applicable and respective legislative bodies, District and City shall share all costs associated with maintaining, repairing and operating the Sites. The terms under which each Site is maintained, repaired and operated shall be set forth in the applicable Facilities Addendum. 9.0 CONSIDERATION. Consideration for each Party's use of the other Party's Sites shall be as set forth in the Facilities Addendum for each Site. 10.0 USE SCHEDULING. The District shall develop and administer the scheduling for use of the District Owned Sites unless otherwise mutually agreed in the applicable Facilities Addendum. The District will consult with the City in developing such 5 schedules. Similarly, the City shall develop and administer the scheduling for use of the City Owned Sites unless otherwise mutually agreed in the applicable Facilities Addendum, and the City will consult with the District in developing such schedules. 11.0 USE OF SITES. 11 .1 Except as provided herein, during use by the District of a District Owned Site, City shall not be permitted to utilize or allow the community to utilize that Site. Except as provided herein, during use by the City of a City Owned Site, District shall not be permitted to utilize or allow the community to utilize that Site. 11.2 Each Site shall be used to the maximum extent possible for both school and community purposes to the extent that such does not interfere with the Owner's schedules for maintenance, repair, or use of the Site, which schedules shall have priority over any use of the Site by the Party who is not its owner. 11.3 Except as otherwise provided in an Facilities Addendum, neither Party shall be responsible to the other Party for the cost of its own recreation programs and activities. 11.4 Except as otherwise provided in an Facilities Addendum, each Party shall be responsible for the supervision of its respective programs and activities on the Sites. The Owner of any given Site shall retain sole discretion and authority to determine lock style, types of gates, and key/code authorization at the Site. The Owner shall provide the other Party with adequate copies of each key necessary to access the Site designated for use by the other Party. Security and locking of all applicable entries shall be of the highest priority. Costs associated with any necessary re-keying from time to time shall be paid by the Parties (and invoiced by the Owner of a particular Site) based upon proportionate use, in the Owner's sole discretion; provided however, that costs associated with re-keying made necessary for a breach of security caused by a Party, or such Party's lack of supervision at a Site, shall be paid solely by that Party. 11 .5 The Parties shall utilize the Sites in conformance with all applicable federal, state, and local laws, as well as any applicable administrative regulations and policies adopted by either Party. 11 .6 Each Party utilizing the other Party's Site shall hold any third-party user who fails to comply with established guidelines liable to pay for all damages caused thereby to the Site. The Owner of said Site may, in its sole discretion, waive this requirement. 11.7 Advertising on any Site shall be in accordance with the policies established by the Owner's governing body. 11.8 Each Party utilizing another's Site shall be aware of such Owner use prohibitions and rules, as may be set by such Owner's governing body's policy from time to time. 6 12.0 SITE USE: PRIORITY, ALLOCATION, AND PERMITS. The use of each Party's Sites shall be subject to that Party's use policies as are determined by that Party's governing board policy (which may be revised from time to time, consistent with the terms of this Agreement), or as are set forth in an Facilities Addendum. 13.0 TERMINATION FOR CAUSE. Failure of a Party to comply with any provision of this Agreement and/or the applicable Facilities Addendum shall constitute a breach. The Party alleging breach (the "Noticing Party") shall provide written notification to the other Party (the "Breaching Party") identifying the alleged breach. The Breaching Party shall have ten (10) business days ("Cure Period") to cure said breach. If the Cure Period requires, notwithstanding due diligence, a greater period of time, the Breaching Party shall have a reasonable period of time to complete the cure of the breach so long as due diligence activities continue to take place (the "Extended Cure Period"). If the Breaching Party does not cure the breach within the Cure Period, the Noticing Party may a) suspend its performance under this Agreement and if applicable, suspend the Breaching Party's use of the Site until the breach is cured, or b) terminate this Agreement and/or the applicable Facilities Addendum. If a Party is terminated for cause, it shall not be entitled to any recoupment or recovery of its non-amortized capital contributions. The Noticing Party shall be entitled to recoup the balance of its non- amortized capital contributions from the Breaching Party. Neither Party shall be responsible to the other Party for ongoing operations and maintenance costs associated with the other Party's Site and the facilities thereon following the effective date of termination for cause. The failure (also referred to herein as nonappropriation) to make an annual capital, maintenance or other appropriation (collectively, "appropriations") shall constitute a breach of and cause for termination of this Agreement if not made within the Cure Period. 14.0 TERMINATION FOR CONVENIENCE. Except for section 13.0, and as may otherwise be provided in a Facilities Addendum, either Party may terminate this Agreement or any or all Facilities Addenda for any reason, without cause, upon ninety 90) days written notice to the other Party. The Party terminating this Agreement for convenience shall not be entitled to any recoupment or recovery of non-amortized capital contributions made by it as of the date of the written notice. The Party not terminating the Agreement for convenience shall be entitled to recoup or recover the full amount of its non-amortized capital contributions which shall be paid by the non- terminating Party within ten (10) days of the expiration of the ninety (90) day notice period. Neither Party shall be responsible to the other Party for ongoing operations and maintenance costs associated with the other Party's Site and the facilities thereon upon expiration of the ninety (90) day notice period. 15.0 INDEMNIFICATION. 15.1 Notwithstanding Government Code Section 895.2, no Party or any of its officers, agents, volunteers, contractors, or employees shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of another Party under or in connection with any obligation delegated to the Parties under this Agreement. Pursuant to Government Code Section 895.4, each Party shall indemnify, 7 defend and hold harmless the other party, its officers, agents, volunteers, contractors, and employees from any and all liability, loss, expense (including reasonable attorneys' fees and other defense costs), or claims imposed for damages of any nature whatsoever, including but not limited to, claims for discrimination, Title IX related issues, bodily injury, death, personal injury, or property damage occurring by reason of any acts or omissions on the part of the Party's own officers, agents, contractors, or employees under or in connection with any obligation delegated to such Party under this Agreement. This indemnity shall survive termination of this Agreement. 15.2 Each Party agrees to require all third-party organizations that it authorizes to use or enter the Site, to execute a document stating the following: Name of Organization] agrees to hold harmless, defend, and indemnify the Arcadia Unified School District and the City of Arcadia, their respective board, council, members, agents, officers, employees and representatives against all actions, claims, or demands for injury, death, loss or damages, regardless of fault or cause, by anyone whomsoever (except where such injury, death, loss, or damage is due to the sole negligence or willful misconduct of the Arcadia Unified School District and the City of Arcadia), whenever such injury, death, loss, damage or claim is a consequence of, or arises out of the use of or access to the Site known as [name of Site], by [name of organization] or its agents, officers, employees and representatives. 16.0 INSURANCE. 16.1 General Insurance Requirements. For each of the Facilities Addendums, without limiting the indemnification provision and during the term of this Agreement, the Parties shall provide and maintain the insurance programs set forth in this Section. Each Party's insurance shall be primary to and not contributing with any other insurance or self-insurance programs maintained by the other Party, and shall be provided and maintained at the insured Party's own expense. 16.2 Insurance Coverage Requirements. For each of Sites covered by a Facilities Addendum, each Party shall maintain the following program(s) of insurance coverage, with each policy naming the other Party as an additional insured: General liability insurance including bodily injury and property damage, broad form property damage, completed operations and independent contractor's liability all applicable to personal injury, bodily injury, and property damage to a limit not less than $2,000,000 each occurrence and 4,000,000 in the aggregate, and naming the other Party as an additional insured. Alternatively, either Party may self-insure up to the specified limits as evidenced by a rider or certification of self-insurance to be provided to the other Party. 8 16.3 Evidence of Insurance. Each Party shall provide a letter or certificate of insurance, or self-insurance, satisfactory to the other Parties prior to commencing use under each of the Facilities Addendums. Such evidence shall identify the applicable Facilities Addendum and the required coverages. Each Party shall provide the other Party written notice by mail at least thirty (30) days in advance of cancellation for all required coverages. 16.4 Insurer Financial Ratings and Self-Insurance. All insurance policies shall be issued by California admitted insurers, and shall be provided by an insurance company with an A.M. Best rating of not less than A-: VII, or as otherwise mutually agreed to by the Parties. In lieu of commercial insurance, each Party shall retain the right to self-insure all or any portion of its insurance obligations herein. 16.5 Notification of Incidents, Claims or Suits. To the best of their ability, each Party shall notify the other of any accident or incident relating to its use of the Site pursuant to this Agreement, which involves injury or property damage which may result in the filing of a claim or lawsuit against any of the Parties, and, of any actual third-party claim or lawsuit arising from or related to services under this Agreement. 17.0 NON-DISCRIMINATION. The Parties agree that in providing use of the Sites pursuant to the Facilities Addendums, the hiring of staff, and the selection and use of volunteers, all persons will be treated equally and without regard to or because of race, color, religion, ancestry, national origin, sex, age, sexual orientation, marital status or disability, and in compliance with all anti-discrimination laws of the United States of America and the State of California. 18.0 REVIEW AND MODIFICATION PROCESS. Each Party shall designate a representative as the contact liaison in connection with any and all issues pertaining to this Agreement. The terms and conditions of the Agreement may be revised or amended in writing as may be necessary from time to time and as mutually agreed by the Parties. 19.0 NOTICES. 19.1 Notice. Notices shall be personally delivered or delivered by United States Mail, postage-prepaid, certified, return receipt requested, by facsimile with proof of transmission, or by reputable document delivery service, including overnight mail with proof of delivery, that provides a receipt showing date and time of delivery. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar day following dispatch. Notices personally delivered or delivered by document delivery service shall be effective upon receipt. Notices shall be delivered to the Parties at the following addresses: To District: Arcadia Unified School District Attn: Superintendent 150 South Third Avenue Arcadia, CA 91006 9 To City: City of Arcadia Attn: City Manager 240 West Huntington Drive PO Box 60021 Arcadia, CA 91066-6021 The Parties shall notify one another of any change of address. On or about April 5, 2014, the District's address will be 150 S. Third Avenue, Arcadia, CA 91006. 19.2 Emergency Contact Numbers. The Parties will provide and periodically update after-hours emergency contact information for appropriate supervisory staff. Such information must include emergency contact numbers for other facilities that may be utilized in the event of a community emergency. 20.0 PARTY EMPLOYEES. 20.1 District Employees. For purposes of this Agreement, all persons employed in the performance of services and functions for District shall be deemed District employees and no District employees shall be considered as an employee of the City, nor shall such District employees have any City pension, civil service, or other status while an employee of the District. 20.2 City Employees. For purposes of this Agreement, all persons employed in the performance of services and functions for the City shall be deemed City employees and no City employee shall be considered as an employee of the District, nor shall such City employees have any District pension, civil services, or other status while an employee of the City. 21.0 MISCELLANEOUS. 21.1 Attorneys' Fees; Litigation. In the event of a dispute under this Agreement, each Party shall bear its own attorneys' fees and costs. 21.2 Dispute Resolution. In the event of any dispute between the Parties regarding the meaning or interpretation of this Agreement, the dispute shall be resolved in the following manner. First, the Parties shall attempt in good faith to resolve the dispute between the respective representatives having immediate supervision and control over the planning, construction, use of facilities including all addendum facilities. Second, if that is not successful, the Superintendent of the Arcadia Unified School District and the City Manager of the City of Arcadia shall attempt in good faith to resolve the dispute. If all efforts fail, the Parties may agree to submit the matter to nonbinding mediation or binding arbitration, with each Party bearing half the cost, or if no agreement can be reached, either Party may proceed to litigation. In the event of litigation or binding arbitration, the prevailing Party is entitled to reasonable attorneys fees and costs. 10 21.3 Assignment. No Party shall assign this Agreement or any right or privilege any Party might have under this Agreement without the prior mutual written consent of all Parties hereto, which consent shall not be unreasonably withheld, provided that the assignee agrees in a written notice to all Parties to carry out and observe each applicable Party's agreements hereunder. 21 .4 Binding on Successors. This Agreement shall be binding upon the Parties hereto and their respective successors and assigns (to the extent approved under Section 21.3). 21.5 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. 21.6 Entire Agreement, Waivers and Amendments. This Agreement, except for the Joint Use Agreement referenced in Recital E and the Facilities Addendums added hereto, incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the Parties with respect to all or part of the subject matter thereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the Party to be charged. Any amendment or modification to this Agreement must be in writing and executed by all of the Parties hereto. 21.7 Incorporation of Facilities Addendums. Facilities Addendums shall be incorporated, to the extent set forth herein, into this Agreement whether or not actually attached to this Agreement. Each Addendum shall be separately approved by the Parties. 21.8 Interpretation: Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by both Parties hereto. This Agreement shall be construed in accordance with the laws of the State of California in effect at the time of the execution of this Agreement. 21 .9 Authority. The persons executing this Agreement, including any Facilities Addendum, on behalf of the Parties hereto warrant that: (a) such Party is duly organized and existing; (b) they are duly authorized to execute and deliver this Agreement on behalf of said Party; (c) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement; and (d) the entering into this Agreement does not violate any provision of any other agreement to which said Party is bound. 21.10 Execution in Counterparts; Signatures. This Agreement may be executed in several counterparts, and all such executed counterparts shall constitute one agreement binding on all Parties hereto, notwithstanding that all Parties are not signatories to the original or the same counterpart. Copies of signatures shall have the same force and effect as original signatures. 11 21 .11 Effect of Recitals. The Recitals herein are deemed true and correct, are hereby incorporated into this Agreement as though fully set forth herein, and the Parties acknowledge and agree that they are each bound by the same. 21 .12 Rights and Remedies are Cumulative. Except as may be otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by any Party of one or more of its right or remedies shall not preclude the exercise by it, at the same time or at different times, of any other rights or remedies for the same default or any other default by another Party or Parties. 21 .13 Provisions Required by Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein and the Agreement shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of any Party the Agreement shall forthwith be physically amended to make such insertion or correction. 21.14 Cooperation. The Parties acknowledge that it may be necessary to execute documents other than those specifically referred to herein in order to complete the objectives and requirements that are set out in this Agreement. The Parties hereby agree to cooperate with each other by executing such other documents or taking such other actions as may be reasonably necessary to complete the objectives and requirements set forth herein in accordance with the intent of the Parties as evidenced in this Agreement. 21 .15 Ambiguities Not to be Construed Against Drafting Party. The doctrine that any ambiguity contained in a contract shall be construed against the party whose counsel has drafted the contract is expressly waived by each of the Parties hereto with respect to this Agreement. 21.16 Nonliability of Officials. No officer, member, employee, agent, or representative of the Parties shall be personally liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon, shall be personally enforced against any such officer, official, member, employee, agent, or representative. 21 .17 Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not signatory to this Agreement. IN WITNESS WHEREOF, the Arcadia Unified School District and the City of Arcadia have entered into this Agreement as of the Effective Date. SIGNATURES ON THE NEXT PAGE] 12 CITY OF ARCADIA: ARCADIA UNIFIED SCHOOL DISTRICT: Domes Lazzaret • ' Christina Aragon City Manager Assistant Superintendent Business Services Dated: v ZD 2-Dn9 Dated: 611'ZI 11+ ATTEST: ATTEST: Cit ilerk 4 Board Secretary APPROVED AS TO FORM: CONCUR: C;N:FMA—C), 744A,C444, WOL,)L)I\ikkJ) N(Y-Stephen P. Deitsch Sara Somogyi City Attorney Director of Recreation and Community Services 13 EXHIBIT "A" Facilities Addenda Addendum # Site Address Term 1 Arcadia High 1809 Campus School Stadium Drive, Arcadia, CA 91007 Each Facilities Addendum entered into by the Parties may be inserted behind this page. FACILITIES ADDENDUM NO. 1 ARCADIA HIGH SCHOOL STADIUM 1. Location & Amenities. a. Arcadia High School Stadium ("Facility"), a District Owned Site located at 1809 Campus Drive, Arcadia, CA 91007, shall consist of the synthetic athletic turf field, field lights, rubber track, and permanent football goal posts, and as depicted on overhead map attached hereto as Attachment A. b. The Facility does not include permanent restrooms, snack bar, scoreboard and press box which may be made available through request to the District and payment of the associated District fee(s), if any. c.Facility field lights will be available for the duration of the agreement and shall be programmed by the District in consultation with the City. 2. Operations Schedule. a. District shall have priority use or discretion of use every weekday from 7:OOam-5:OOpm. District shall also have priority use for Arcadia High School athletics and band activities during the regular seasons and occasional school wide events set forth in the Designated Special Use Time by District. Arcadia High School events shall be submitted though the Active Network software, or other mutually agreed upon software, prior to City requests in order to designate specific allocations. b. City shall have priority use or discretion of use every weekday from 5:OOpm-10:OOpm and weekends from 7:OOam-10:OOpm, excluding use listed below as Designated Special Use Time by District. District shall have the right to designate up to an additional (12) twelve weeknight events and occasional full day uses on weekends per year. Examples of occasional use includes but is not limited to fundraisers, school or District wide events, back to school nights, production rentals (filming). District shall have priority to schedule District sanctioned events during City time with 30 days prior written notice and City approval. Designated Special Use Time by District Activity Date/Time Facilities Addendum No. 1 Arcadia High School Stadium 1 c. All requests for Facility use from third party organizations shall be submitted to the District or City, based upon the time in which the third party has requested use. d.If either the District or the City (Party, collectively the Parties) has an interest in increasing or decreasing priority use schedules, both Parties will meet and confer to discuss schedules and financial repayment options, if necessary. e. Use of facilities may need to be curtailed from time to time for maintenance activities with thirty (30) calendar days advance written notice to the City. 3. Capital Improvements a. The District shall be responsible for Sixty Percent (60%) and the City shall be responsible for Forty Percent (40%) of all capital improvement projects set forth herein, unless otherwise specified. The cost of each capital improvement project identified herein shall include District personnel costs directly related to administering the capital improvement project. Such personnel costs shall be determined using the District's approved State Indirect Cost Rate and shall not exceed 10% of the cost of the capital improvement project. b. Capital Improvement Projects. Artificial Turf Field. The total estimated project cost of the Artificial Turf Field is $500,000, including design, management and all phases of construction. Note: this estimate is based on the assumption that base materials will not have to be replaced and is subject to initial testing. The District shall manage and oversee construction and implementation of the Artificial Turf Field, including design, construction, construction management, and completion. The City will reimburse the District in accordance with Section 3(a). ii.Synthetic Track. The total estimated cost of the Synthetic Track is 800,000, including design, management and all phases of construction. It is anticipated that the track will be replaced by a Mondo type track or equivalent. Cost will be shared equally in thirds by the City, District, and District Invitational Track Meet Event. In the event the District Invitational Track Meet does not provide 33% funding, the District shall be responsible for 66% of the synthetic track cost. c.Refund of Capital Improvement Project Payments. In the event this Addendum or the Master Joint Use Agreement (the "Agreement") is terminated pursuant to section 13.0 for cause by the City or section 14.0 for convenience by the District in accordance with the Agreement, the District shall refund the City the non-amortized balance of the City's payments for the capital improvement projects (also referred to in the Agreement as the non-amortized capital contributions), calculated against the total term of this Addendum, as follows: Facilities Addendum No. 1 Arcadia High School Stadium 2 City Contribution _ total term (in months) x months remaining in term = refund. EXAMPLE (For illustration purposes only): Assuming a ten (10) year term and if the non-amortized balance of the City's payments for the capital improvement projects up to the effective date of termination is $280,000 and either the Master Joint Use Agreement or this Addendum is terminated after two (2) years, the District would refund the City $224,000 ($280,000 _ 120 x 96). d. The Parties contemplate entering into additional agreements or addenda for purposes of implementing the capital improvement projects set forth herein. Actual costs and payment obligations of each Party shall be memorialized by separate agreement or addendum between the Parties. To the extent the District makes capital contributions in other agreements or addenda, it shall be entitled to recoupment or recovery similar to the provisions in favor of the City as set forth in section c. above. 4. Maintenance, Repair, and Operation Costs. a. Based on the Operations Schedule, the District shall be responsible for 60% and the City shall be responsible for 40% of all applicable maintenance, repair and operation costs of any kind. b. These costs include but are not limited to minor repair cost (costs not exceeding $5,000) due to normal wear and usage, replacement of light bulbs, grooming and spaying of field, and basic everyday collection of trash of the facility. It does not include use or cleaning of restrooms, or on site custodial services for special events. These costs will be billed based on actual usage as requested. The annual cost as listed above is determined to be $48,000 per year and will not be adjusted more than annually pursuant to the CPI index for the Los Angeles area. c.Costs for large scale and emergency repairs (over $5,000) will be shared and paid in accordance with Section 4(a) above. The District and City shall confer annually to identify any such potential repairs to facilitate budgeting and scheduling. d. Facility maintenance, repair and operation costs shall include District personnel costs directly related to administering maintenance, operations and repair tasks. Such personnel costs shall be determined using the District's approved State Indirect Cost Rate and shall not exceed 10% of the cost of the applicable maintenance, repair and operation expense item. e. Either Party may notify the other Party in writing of any extraordinary maintenance, repair or operation tasks needing immediate attention, particularly in the event of a safety concern. 4. Payment and Performance. Facilities Addendum No. 1 Arcadia High School Stadium 3 a. Performance. All maintenance, repair and operation tasks and all capital improvement projects will be undertaken and accomplished by District, either by District force account or outsourcing the task or project as provided by law. b. Payment. All costs associated with maintenance, repair and operation tasks and all capital improvement project costs shall be paid directly by the District. The City shall be billed not more than bi-annually by the District in and around January and July for its share of the costs. Payment of all undisputed amounts shall be made to the District by the City within sixty (60) days of the City's receipt of an invoice. The District and the City shall meet annually in the month of March for the purpose of reviewing, through their respective administrative staff, the maintenance, repair and operations costs and capital improvement project costs for the Facility for the following fiscal year, which shall commence on July 1 of each year. 5. Staffing. a. District and City shall not be responsible for providing on-site staffing during use by the other Party. 6. Term. a. District and City's payment obligations for the anticipated capital improvement projects at the Facility detailed in this Addendum shall terminate on June 30, 2030, based upon the 8 year expected life span of athletic field turf to be installed in 2014 and reinstalled in 2022. The term shall be adjusted, by mutual consent confirmed in writing or by amendment to this Addendum, to the extent the installation schedule is different from the anticipated schedule as set forth herein. District shall be responsible for determining life expectancy of the capital improvement projects after meeting and reviewing conditions with the City. ARCADIA UNIFIED SCHOOL DISTRICT: By: Its: Asst . Supt . , Bus . Srvs . CITY OF ARCADIA: By: Its: City Manager Facilities Addendum No. 1 Arcadia High School Stadium 4 a. Performance. All maintenance, repair and operation tasks and all capital improvement projects will be undertaken and accomplished by District, either by District force account or outsourcing the task or project as provided by law. b. Payment. All costs associated with maintenance, repair and operation tasks and all capital improvement project costs shall be paid directly by the District. The City shall be billed not more than bi-annually by the District in and around January and July for its share of the costs. Payment of all undisputed amounts shall be made to the District by the City within sixty (60) days of the City's receipt of an invoice. The District and the City shall meet annually in the month of March for the purpose of reviewing, through their respective administrative staff, the maintenance, repair and operations costs and capital improvement project costs for the Facility for the following fiscal year, which shall commence on July 1 of each year. 5. Staffing. a. District and City shall not be responsible for providing on-site staffing during use by the other Party. 6. Term. a. District and City's payment obligations for the anticipated capital improvement projects at the Facility detailed in this Addendum shall terminate on June 30, 2030, based upon the 8 year expected life span of athletic field turf to be installed in 2014 and reinstalled in 2022. The term shall be adjusted, by mutual consent confirmed in writing or by amendment to this Addendum, to the extent the installation schedule is different from the anticipated schedule as set forth herein. District shall be responsible for determining life expectancy of the capital improvement projects after meeting and reviewing conditions with the City. ARCADIA UNIFIED SCHOOL DISTRICT: By: Its: CITY OF ARCADIA: Its: City Manager Facilities Addendum No. 1 Arcadia High School Stadium 4 ATTACHMENT "A" OVERHEAD MAP OF ARCADIA HIGH SCHOOL STADIUM Facilities Addendum No. 1 Arcadia High School Stadium 5 r Arcadia High School Stadium Y.-r- w Rr , II I 41 ilhoi 4.411144r. 1.211g V'