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CC - Item 6A - Public Hearing on Synthetic Track at Rosemead High School and Agreement with El Monte High School DistrictROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CHAIRMAN AND MEMBERS OF THE CITY COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION FROM: JEFF ALLRED, CITY MANAGER(! DATE: NOVEMBER 17, 2009 SUBJECT: PUBLIC HEARING ON THE EXPENDITURE OF COMMISSION FUNDS FOR THE FY 2009-10 CAPITAL IMPROVEMENT PLAN PURSUANT TO HEALTH & SAFETY CODE SECTIONS 33445 AND 33679 FOR THE DEVELOPMENT OF A SYNTHETIC TRACK AT ROSEMEAD HIGH SCHOOL AND THE APPROVAL OF AN AGREEMENT WITH THE EL MONTE UNION HIGH SCHOOL DISTRICT SUMMARY Approximately one year ago the City Council authorized partnership efforts with the El Monte Union High School District (District) to determine the feasibility of installing a synthetic track at the Rosemead High School Stadium. During these discussions it was tentatively agreed upon that the City would assume 60% of the construction costs and the District would be responsible for 100% of the ongoing maintenance costs associated with the track. Redevelopment Law (Health and Safety Code Section 33445) requires that, if redevelopment funds are to be used to pay for improvements which will be publicly owned, both within and outside of the project area, the City Council and the Community Development Commission must make findings: a) that the proposed improvements are of benefit to the Project Areas or the immediate neighborhood in which the projects are located; b) that there are no other reasonable means of financing the proposed projects available to the community; c) that the projects will assist in the elimination of blighting conditions in the Project Areas and are consistent with the adopted Implementation Plan. Staff Recommendation Staff recommends the following: 1. That the Community Development Commission adopt Resolution No. 2009-35 (Attachment A) making the appropriate findings under Health and Safety Code Section 33445. 2. That the City Council adopt Resolution No. 2009-59 (Attachment B) making the appropriate findings under Health and Safety Code Section 33445 and the Council consent to the proposed Commission expenditures. ITEM NO. low APPROVED FOR CITY COUNCIL AGENDA: City Council Meeting November 17, 2009 Page 2 of 4 3. That the City Council approve the Agreement (Attachment C) between the City and the District for the construction and ongoing maintenance and use of a synthetic track installed at Rosemead High School, and authorize expenditures of redevelopment funds in an amount not to exceed $800,000 to cover the City's portion of construction, project management and fee costs and a 10% contingency. ANALYSIS The installation of a synthetic track will be a significant asset to the community. The track will be open during normal Rosemead Park hours to the general public except during specific school events such as football games in which admission is required. As with other joint-use agreements with the District, each party has agreed to indemnify the other in the event of a lawsuit resulting in use of the track, and neither party will be charged a fee for utilizing the facility. The District has reviewed the proposed agreement and approved the agreement language at their October 7, 2009 meeting. Once the agreement is approved by both governing bodies, the District will assume the primary role of construction management for the project. Since this project is located on District property and entails the use of District funds, the plans and specifications will need to go through the State's Department of General Services approval process. Unfortunately, this will likely add time to what the City is normally accustomed to seeing for projects. The timeline from approval of the Agreement to completion of construction may take up to a year to complete. District staff has been in contact with other school districts in the region to develop a rough estimate of the costs associated with the construction of a new track. Based upon these discussions, District staff has estimated construction costs to be as high as $1 million and "soft" costs such as construction mangers fee, Inspector of Record (IOR), and Division of State Architect fees may be as high as another 20% of the construction costs for a total of $1.2 million. Although Rosemead's portion the construction and soft cost estimate is approximately $720,000 staff is recommending a total allocation of $800,000 for this project to cover a 10% contingency that will likely be required plus any additional unknown incidental costs that may occur once the project is initiated. These funds will be budgeted from the Redevelopment Agency's existing Tax Exempt Bond Proceeds which may only be used for public improvement projects. Estimated Constrruction Costs $1,000,000 Estimated "Soft" Costs $200,000 Total Build Costs $1,200,000 City's Portion (60%) $720,000 City's 10% Contingency $72,000 City's Total Contribution (Rounded) $800,000 City Council Meeting November 17, 2009 Pace 3 of 4 Once bids are solicited and reviewed, the award of contract will be brought back to the City Council for approval. At that time a final agreement will also be brought before the Council for approval with the date and amount included. Health and Safety Code Section 33445 Findings As stated above, Health and Safety Code Section 33445 requires that the City Council consent to the Commission expenditures for public improvement projects and that the Commission and Council find that: 1) The use of Commission funds is of benefit to the project area(s) funding the improvement. A synthetic multi-purpose athletic track will provide for year round exercise opportunities in Rosemead. It will bring additional people and a new energy to an area that has been historically underutilized. This in turn, will create additional spin off business activity in Rosemead and will promote a more pedestrian friendly environment. A description of the Project and the funding sources are attached to the Resolution proposed with this staff report as Exhibit A. 2) There is no other reasonable means of financing the improvements. At this time, no other reasonable means of financing the Project are available from the City as the City is using its funds to undertake other projects, services and public improvements throughout the City as reflected in the City's FY 2009-10 Capital Improvement Plan. 3) Funding the project will assist in the elimination of one or more blighting conditions inside the project area. The payment of funds for the Projects will assist in the elimination of blighting conditions inside the Redevelopment Project Areas by providing for additional public exercise/athletic facilities which are currently insufficient and in poor condition. 4) Consistency with 5-Year Plan The use of Commission funds for these Projects is consistent with the Commission's 5-year Implementation Plan for 2009-2014. City Council Meeting November 17, 2009 Page 4 of 4 At this time, there is one project that requires the use of Commission funds. The Rosemead High School Multi-Purpose Athletic Track This project includes the installation of a new synthetic multi-purpose track at the Rosemead High School Stadium. This would be a joint venture with the El Monte Union High School District whereby the City would only be obligated to pay a portion of the construction costs. The District would be responsible for all remaining construction costs and all ongoing maintenance costs. The City's estimated contribution towards the project would be $800,000. The project construction could begin as soon as December 2009 and be completed on August 2010. FISCAL IMPACT The Commission currently has approximately $5.65 million in tax exempt bond proceeds available to fund this project. PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. Submitted by: f~ Matthew E. Hawkesworth Assistant City Manager svelopment Director Attachments: A - Resolution No. 2009-35 B - Resolution No. 2009-59 C - Agreement with El Monte Union High School District Attachment A RESOLUTION NO. 2009-35 A RESOLUTION OF THE ROSEMEAD COMMUNITY DEVELOPMENT COMMISSION, MAKING THE FINDINGS REQUIRED BY SECTION 33445 OF CALIFORNIA REDEVELOPMENT LAW AND DETERMINING THAT THE PROVISION OF PUBLIC IMPROVEMENTS MADE TOWARDS THE SYNTHETIC MULIT-PURPOSE TRACK AT ROSEMEAD HIGH SCHOOL IS OF BENEFIT TO REDEVELOPMENT PROJECT AREAS NOS. 1 AND 2. WHEREAS, the Rosemead Community Development Commission (the "Commission") is a public body, corporate and politic, duly established and authorized to transact business and exercise powers under and pursuant to the provisions of the Community Redevelopment Law of the State of California, constituting Part 1 of Division 24 of the Health and Safety Code of the State of California (the "Law"), including the power to expend funds for public improvements for the benefit of Redevelopment Project Areas Number 1 and 2 ("Project Areas"); and WHEREAS, the City of Rosemead ("City") is the legislative body for the community in which the Project Areas are located and pursuant to Health & Safety Code section 33445 is required to consent to payments to be made by its Commission for the provision of public improvements; and WHEREAS, the provision of these projects are consistent with the Commission's Five- Year Implementation Plan Goals adopted for 2009-2014; and WHEREAS, there are appropriate facts supporting the findings required by Health & Safety Code Section 33445 for the City Council to consent to the Commission's expenditure of funds to create a synthetic multi-purpose athletic track at the Rosemead High School (the "Project"); and WHEREAS, the Resolution is being considered at properly noticed Public Hearing as required by Health and Safety Code section 33679. NOW, THEREFORE, THE ROSEMEAD COMMUNITY DEVELOPMENT COMMISSION, CALIFORNIA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. Recitals. The Commission Board finds and declares that the above recitals are true and correct and incorporates them herein. SECTION 2. Findings Required by Health & Safety Code Section 33445. The Commission hereby determines that: (i) the Project is of benefit to the Project Areas as it will provide for year round exercise opportunities in Rosemead. It will also attract additional people and create a new energy in an area that has been historically stagnant and underutilized. This in turn, will create additional spin off business in Rosemead and will promote a more pedestrian friendly environment. A description of the Projects and the funding sources are attached here to as Exhibit A; and 1/3 Attachment A (ii) no other reasonable means of financing the Project are available from the City as the City is using its funds to undertake other projects, services and public improvements throughout the City as reflected in the FY 2009-10 Operating and Capital Improvement Budget, a copy of which is on file with the City Clerk; and (iii) that the payment of funds for the Projects will assist in the elimination of blighting conditions inside the Redevelopment Project Areas by providing for additional public exercise/athletic facilities which are currently insufficient and in poor condition; and (iv) The use of Commission funds for these Projects is consistent with the Commission's 5-year Implementation Plan for 2009-2014. SECTION 3. Commission Request for use of Funds. The Commission requests the City Council's consent to use its funds to pay $800,000 to fund improvements made to the athletic track at Rosemead High School. SECTION 4. Effective Date: This Resolution shall take effect from and after its date of passage; approval and adoption. SECTION 5. Certification: The Commission Secretary shall certify to the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this day of November, 2009. MARGARET CLARK, COMMISSION CHAIR ATTEST: GLORIA MOLLEDA, COMMISSION SECRETARY APPROVED AS TO FORM Joseph Montes, Commission Counsel 2/3 Attachment A EXHIBIT A Project Descriptions The Rosemead High School Synthetic Multi-Purpose Athletic Track This project includes the installation of a new synthetic multi-purpose track at the Rosemead High School Stadium. This would be a joint venture with the El Monte Union High School District whereby the City would only be obligated to pay a portion of the construction costs. The District would be responsible for all remaining construction costs and all ongoing maintenance costs. The City's estimated contribution towards the project would be $800,000. The project construction could begin as soon as December 2009 and be completed by August 2010. 3/3 Attachment B RESOLUTION NO. 2009-59 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROSEMEAD MAKING THE FINDINGS REQUIRED BY SECTION 33445 OF CALIFORNIA REDEVELOPMENT LAW AND DETERMINING THAT THE PROVISION OF PUBLIC IMPROVEMENTS MADE TOWARDS THE SYNTHETIC MULIT-PURPOSE TRACK AT ROSEMEAD HIGH SCHOOL IS OF BENEFIT TO REDEVELOPMENT PROJECT AREAS NOS. 1 AND 2. WHEREAS, the Rosemead Community Development Commission (the "Commission") is a public body, corporate and politic, duly established and authorized to transact business and exercise powers under and pursuant to the provisions of the Community Redevelopment Law of the State of California, constituting Part 1 of Division 24 of the Health and Safety Code of the State of California (the "Law"), including the power to expend funds for public improvements for the benefit of Redevelopment Project Areas Number 1 and 2 ("Project Areas"); and WHEREAS, the City of Rosemead ("City") is the legislative body for the community in which the Project Areas are located and pursuant to Health & Safety Code section 33445 is required to consent to payments to be made by its Commission for the provision of public improvements; and WHEREAS, the provision of these projects are consistent with the Commission's Five- Year Implementation Plan Goals adopted for 2009-2014; and WHEREAS, there are appropriate facts supporting the findings required by Health & Safety Code Section 33445 for the City Council to consent to the Commission's expenditure of funds to create a synthetic multi-purpose athletic track at the Rosemead High School (the "Project"); and WHEREAS, the Resolution is being considered at properly noticed Public Hearing as required by Health and Safety Code section 33679. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ROSEMEAD CALIFORNIA DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. Recitals. The City Council finds and declares that the above recitals are true and correct and incorporates them herein. SECTION 2. Findings Required by Health & Safety Code Section 33445. The City Council hereby determines that: (i) the Project is of benefit to the Project Areas as it will provide for year round exercise opportunities in Rosemead. It will also attract additional people and create a new energy in an area that has been historically stagnant and underutilized. This in turn, will create additional spin off business in Rosemead and will promote a more pedestrian friendly environment. A description of the Projects and the funding sources are attached here to as Exhibit A; and (ii) no other reasonable means of financing the Project are available from the City as the City is using its funds to undertake other projects, services and 1/3 Attachment B public improvements throughout the City as reflected in the FY 2009-10 Operating and Capital Improvement Budget, a copy of which is on file with the City Clerk; and (iii) that the payment of funds will assist in the elimination of blighting conditions inside the Redevelopment Project Areas by providing for additional public exercise/athletic facilities which are currently insufficient and in poor condition; and (iv) The use of Commission funds for these Projects is consistent with the Commission's 5-year Implementation Plan (2009-2014). SECTION 3. City Consent to use of Agency Funds. The City Council consents to the use of Commission funds to pay $800,000 to fund improvements made to the athletic track at Rosemead High School. SECTION 4. Effective Date: This Resolution shall take effect from and after its date of passage; approval and adoption. SECTION 5. Certification: The City Clerk shall certify to the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this day of November, 2009. MARGARET CLARK, MAYOR ATTEST: GLORIA MOLLEDA, CITY CLERK APPROVED AS TO FORM Joseph M. Montes, City Attorney 2/3 Attachment B EXHIBIT A Project Description The Rosemead High School Synthetic Multi-Purpose Athletic Track This project includes the installation of a new synthetic multi-purpose track at the Rosemead High School Stadium. This would be a joint venture with the El Monte Union High School District whereby the City would only be obligated to pay a portion of the construction costs. The District would be responsible for all remaining construction costs and all ongoing maintenance costs. The City's estimated contribution towards the project would be $800,000. The project construction could begin as soon as December 2009 and be completed by August 2010. 3/3 Attachment C AGREEMENT BY AND BETWEEN THE EL MONTE UNION HIGH SCHOOL DISTRICT AND CITY OF ROSEMEAD FOR ROSEMEAD HIGH SCHOOL Contract No. THIS AGREEMENT ("Agreement') is made and entered into this _ day of , 2009, by and between the CITY OF ROSEMEAD, a municipal corporation, hereinafter referred to as "CITY" and the EL MONTE UNION HIGH SCHOOL DISTRICT, hereinafter referred to as "SCHOOL DISTRICT." WITNESSETH: For and in consideration of the mutual covenants and agreements herein contained, said parties hereby agree as follows: 1. RECITALS. This Agreement is made and entered into with respect to the following facts: - a. The governing bodies of the SCHOOL DISTRICT and CITY, mutually interested in a quality program of education and community recreation for all citizens of the community, desire to enter into an agreement for the use of certain SCHOOL DISTRICT facilities for education and community recreation purposes to assure maximum and coordinated public use of these facilities; b. The CITY wishes to fund improvements to the SCHOOL DISTRICT'S facilities located at Rosemead High School, 9063 Mission Dr., Rosemead, CA 91770, ("Rosemead High School") specifically the installation of a synthetic running track at the Rosemead High School stadium, as outlined in Exhibit A ("Improvements"), attached hereto and hereby incorporated by this reference; and c. SCHOOL DISTRICT desires to allow CITY to use the SCHOOL DISTRICT FACILITIES (as defined below) on a portion of the Rosemead High School campus for operation of its Program (as defined below). 2. PROVISIONS FOR USE OF FACILITIES. The SCHOOL DISTRICT agrees to allow the CITY to use the SCHOOL DISTRICT FACILITIES (as defined in section 3), for CITY recreation programs and/or recreational use by the public ("Program") during the hours that Rosemead Park, located at 4343 Encinita Ave, Rosemead, CA, is open, provided that said SCHOOL DISTRICT FACILITIES are not being used for scheduled SCHOOL DISTRICT activities. -I- 3. SCHOOL DISTRICT FACILITIES DEFINED. The SCHOOL DISTRICT FACILITIES referred to herein are located at Rosemead High School and include: Jogging/running track at Rosemead High School stadium Rosemead High School athletic field, surrounded by the jogging/running track It is also understood and agreed that the auxiliary facilities and fixed equipment, such as restrooms, parking lots, bleacher seats, and,other non-expendable equipment designed for use in connection with the SCHOOL DISTRICT FACILITIES, shall be included as part of this Agreement. 4. IMPROVEMENT OF SCHOOL DISTRICT FACILITIES. CITY will contribute SIXTY PERCENT (60%) of the cost of the Improvements, in an amount not to exceed .00). The Improvements shall be constructed by the SCHOOL DISTRICT ("Project"), pursuant to all applicable laws and bidding procedures, including, but not limited to, approval by the Division of the State Architect (if required), public works contract bidding, and payment of prevailing wages. CITY shall contribute it's 60% incrementally upon 30 day written requests, as a pro rata share of all progress payments made on the Project. The CITY shall be entitled to withhold, on a pro rata basis, a portion of its payment as part of any retention contemplated by the contracts for the Project, payable only upon full completion of the Project at the same time SCHOOL DISTRICT releases its share of the retention to the contractor(s). CITY agrees that it will not have the right to direct or control the work on the Project. Prior to any award of contract for the Improvements by the SCHOOL DISTRICT, the CITY council shall be afforded an opportunity to approve the contract amount. The parties agree that the terms of this Agreement will have to be renegotiated if the City Council does not approve the contract amount 5. MAINTENANCE OF FACILITIES. The SCHOOL DISTRICT shall at all times be responsible for all routine maintenance and repair and costs for the SCHOOL DISTRICT FACILITIES. Notwithstanding the foregoing, CITY shall be responsible for damage caused by CITY's use of the SCHOOL DISTRICT FACILITIES and for splitting the cost for non-routine maintenance with the SCHOOL DISTRICT. 6. UTILITIES. SCHOOL DISTRICT shall make all necessary payments for all utilities for the SCHOOL DISTRICT FACILITIES. CITY shall pay a pro-rata share of all utilities used for SCHOOL DISTRICT FACILITIES during CITY's scheduled use of the SCHOOL DISTRICT FACILITIES. 7. FEES AND CHARGES. There shall be no fees or charges levied against the CITY for use of the SCHOOL DISTRICT FACILITIES, unless the CITY charges a fee, the event is conducted for the purpose of producing a profit or if the CITY's use of the SCHOOL DISTRICT FACILITIES causes the SCHOOL DISTRICT to incur non-routine, direct costs for staffing, operation and/or maintenance. Where the event is for profit-making purposes, then the -2- organization using the facility shall pay the cost rate for such use as determined by the SCHOOL DISTRICT's fee schedule. 8. PRIORITY OF USE. The priority for use of the SCHOOL DISTRICT FACILITIES pursuant to the terms of this Agreement shall be: a. SCHOOL DISTRICT programs, functions and extra-curricular activities during school and non-school hours; b. CITY recreational programs. It is anticipated that these would be single event type programs such as a CITY track meet, rather than ongoing activities such as sports leagues, etc. C. Use by the public for recreational purposes during normal Rosemead Park hours. 9. COORDINATION OF USE OF SCHOOL DISTRICT FACILITIES. At least 90 (ninety) days prior to the anticipated completion of the Improvements, and thereafter, at least 90 (ninety) days prior to the first day of each school year at Rosemead High School, the SCHOOL DISTRICT's authorized representative shall meet with the CITY's Parks and Recreation Director to identify hours of CITY and public access to the SCHOOL DISTRICT FACILITIES for the 12 month period following such first day of school. The scheduled use shall be consistent with the priorities of use identified in Section 7 herein, as well as the intended hours of access by the CITY and public as described in that Section. SCHOOL DISTRICT and CITY agree to cooperate in scheduling of events that arise subsequent to the annual scheduling meeting described in this Section. SCHOOL DISTRICT shall provide the CITY with a minimum of forty-eight (48) hours prior notice of required downtime, maintenance repairs, or closure of SCHOOL DISTRICT FACILITIES, unless such cancellation or termination is necessitated by an Act of God. 10. CIVIC CENTER ACT. SCHOOL DISTRICT may permit another person or entity to use the SCHOOL DISTRICT FACILITIES during non-school hours pursuant to the "Civic Center Act" (Education Code section 38130 et seq.) Use of the SCHOOL DISTRICT FACILITIES, including, without limitation, access times, cost, maintenance and repair responsibilities, and insurance coverage shall be in accordance with the Civic Center Act and policies and procedures of the SCHOOL DISTRICT governing public use of SCHOOL DISTRICT facilities. Access under the Civic Center Act will be coordinated with the CITY's use of the SCHOOL DISTRICT FACILITIES. 11. PERSONNEL, EQUIPMENT AND SUPPLIES. The CITY shall be responsible for providing such personnel, equipment and supplies as may be necessary for the proper conduct of its Program and activities on the SCHOOL DISTRICT FACILITIES. CITY shall be responsible for supervision and control at all times when the SCHOOL DISTRICT FACILITIES are used by CITY. CITY shall not install equipment on the SCHOOL DISTRICT FACILITIES without the prior written consent of SCHOOL DISTRICT. 12. RULES AND REGULATIONS. The CITY'S activities and access by the public shall be conducted in accordance with the rules and regulations as specified by the SCHOOL -3- DISTRICT. CITY shall not permit smoking or the consumption or possession of alcohol on the Rosemead High School campus during its use of the SCHOOL DISTRICT FACILITIES. 13. DAMAGE TO FACILITIES. The CITY agrees to repair or reimburse the SCHOOL DISTRICT for any extraordinary maintenance cost or damage to SCHOOL DISTRICT property or the SCHOOL DISTRICT FACILITIES, which occur as a result of the CITY'S Program or activities. 14. INDEMNIFICATION AND RISK OF LOSS. A. The CITY shall indemnify, defend and hold the SCHOOL DISTRICT and its elected and appointed officials, employees and agents free and harmless from any and all actions, claims, liabilities or damages to persons or property that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of or in connection with the CITY's or its elected officials', officers% employees% or agents' use of the SCHOOL DISTRICT FACILITIES covered under this Agreement as well as performance or breach of this Agreement, excepting such actions, claims, damages to persons or property, penalties, obligations or liabilities arising from the negligence or willful misconduct of the SCHOOL DISTRICT or its elected or appointed officials, officers, employees or agents. B. The SCHOOL DISTRICT shall indemnify, defend and hold the CITY and its elected and appointed officials, officers, employees, and agents free and harmless from any and all actions, claims, liabilities, or damages to persons or property that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of or in connection with the SCHOOL DISTRICT's or its elected or appointed officials', officers% employees', or agents' use, of the SCHOOL DISTRICT FACILITIES covered under this Agreement as well as performance or breach of this Agreement, excepting such actions, claims, damages to persons or property, penalties, obligations or liabilities arising from the negligence or willful misconduct of the CITY or its elected or appointed officials, officers, employees or agents. 15. TERM. The initial term of this Agreement shall commence on the date of execution by the SCHOOL DISTRICT, provided that the District's Board of Trustees has first approved the Agreement, and the date of execution by the CITY and shall continue for a period of fifteen (15) years after said date, unless sooner terminated. This Agreement shall extend beyond the initial term in additional five (5) year increments upon mutual written agreement of the parties after the expiration of the initial term and any subsequent renewal term(s). 16. TERMINATION. a. Termination for Convenience: Either party to this Agreement may terminate this Agreement upon giving a thirty (30) day written notice to the other of its intention to terminate this Agreement. Notwithstanding the foregoing, if CITY funds its share of the Improvements, then this Agreement shall not be terminated for convenience by SCHOOL DISTRICT prior to expiration of the initial term. -4- b. Termination for Cause. Either party may terminate this Agreement immediately for cause. Cause shall include, without limitation: (1) Material violation of this Agreement by either party; or (2) Any act by CITY exposing the SCHOOL DISTRICT to liability to others for personal injury or property damage; or (3) CITY is adjudged bankrupt, CITY makes a general assignment for the benefit of creditors or a receiver is appointed on account of CITY's insolvency. 17. ATTORNEY'S FEES. If litigation is reasonably required to enforce or interpret the provisions of this Agreement, the prevailing party in such litigation shall be entitled to an award of reasonable attorney's fees, in addition to any other relief to which it may be entitled. The term "prevailing party" shall mean the party who received substantially the relief requested, whether by settlement, dismissal, summary judgment, judgment, or otherwise. 18. NO PRESUMPTION RE: DRAFTER. The parties acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed between the parties and their attorneys, and this Agreement reflects their mutual agreement regarding the same. Because of the nature of such negotiations and discussions it would be inappropriate to deem any party to be the drafter of this Agreement; and, therefore, no presumption for or against validity or as to any interpretation hereof, based upon the identify of the drafter, shall be applicable in interpreting or enforcing this Agreement. 19. GOVERNING LAW. This Agreement shall be interpreted and construed according to the laws of the State of California. 20. NOTICE. Whenever it shall be necessary for either party to serve notice on the other regarding this Agreement, such notice may be furnished in writing by either party to the other and shall be served by personal service as required in judicial proceedings or by certified mail, postage prepaid, return receipt requested, addressed to the parties as follows: SCHOOL DISTRICT: El Monte Union High School District Attn: Tony Ortega, Assistant Supt. 3537 Johnson Ave. El Monte, CA 91731 CITY: City of Rosemead 8838 East Valley Boulevard Rosemead, California 91770 -5- 21. FORCE MAJEURE. Neither party shall be responsible for delays or failures in performance resulting from acts beyond the control of the offending party. Such acts shall include, but not be limited to, acts of God, fire, flood, earthquake, or other natural disaster, nuclear accident, strike, lockout, riot, freight embargo, public regulated utility, or government statutes or regulations superimposed after the fact. 22. THIRD PARTY BENEFICIARIES. Nothing in this Agreement shall be construed to confer any rights upon any party not signatory to this Agreement. 23. NO ASSIGNMENT OF RIGHTS. No rights which SCHOOL DISTRICT or CITY has under this Agreement may be assigned to any other person, persons, corporation or entity without prior written approval of the other party. Any such transfer or assignment made in violation of this Section shall be void. 24. BINDING ON SUCCESSORS. The terms and conditions herein contained shall apply to and bind the heirs, successors-in-interest, executors, administrators, representatives, and assigns of all the parties hereto. 25. ENTIRE AGREEMENT. This Agreement is intended by the parties hereto as a final expression of their understanding with respect to the subject matter hereof and as a complete and exclusive statement of the terms and conditions hereof, and supersedes any and all prior and contemporaneous agreements and understandings, oral or written, in connection herewith. This Agreement may be changed or modified only upon written consent of the parties hereto. 26. PRIVILEGES AND.IMMUNITIES. Notwithstanding anything to the contrary in the Agreement, neither party waives any of the privileges and immunities from liability, exemptions from laws, ordinances, and rules, all pension, relief, disability, workers' compensation, and other benefits which apply to the activity of officers, agents, or employees of either party. 27. NON-LIABILITY OF PARTIES AND PARTIES' EMPLOYEES. No officer, official, employee, agent, representative, or volunteer of the SCHOOL DISTRICT shall be personally liable to the CITY, or any successor-in-interest, in the event of any default or breach by the SCHOOL DISTRICT, or for any amount which may become due to CITY or its successor, or for breach of any obligation of the terms of this Agreement. No officer, official, employee, agent, representative, or volunteer of the CITY shall be personally liable to the SCHOOL DISTRICT, or any successor-in-interest, in the event of any default or breach by the CITY, or for any amount which may become due to SCHOOL DISTRICT or its successor, or for breach of any obligation of the terms of this Agreement. 28. COVENANT AGAINST DISCRIMINATION. CITY and SCHOOL DISTRICT covenant for themselves, their heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this Agreement. To the extent required by law, CITY and SCHOOL DISTRICT each further covenant and agree to comply with the terms of the Americans with Disabilities Act of 1990 (42 -6- U.S.C. Section 12 101 et seq.), as the same may be amended from time to time, as such act applies to the respective obligations of the parties hereto. 29. TITLE IX. SCHOOL DISTRICT is familiar with the provisions of Title IX of the Education Amendments of 1972 to the United States Code (20 USC sections 1681-1688) and statutes and regulations related thereto as same apply to prohibitions against gender discrimination. SCHOOL DISTRICT represents that it is not aware of any gender discrimination issues presently existing that would impact or relate to this Agreement or the activities contemplated herein. SCHOOL DISTRICT understands and agrees that the Improvements listed in Exhibit A, funded partially by CITY funds, are to be used in strict compliance with the requirements of TITLE IX. SCHOOL DISTRICT expressly agrees that the indemnifications set forth in Section 14 herein include an obligation to defend and indemnify for claims, suits or allegations arising under the terms of this Agreement or out of the SCHOOL DISTRICT'S use of the SCHOOL FACILITIES related in any way to TITLE IX. 30. INTERPRETATION; SEVERABILITV. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The section headings are for purposes of convenience only and shall not be construed to limit or extend the meaning of this Agreement. Each provision of this Agreement shall be severable from the whole. If any provisions of this Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force and effect. 31. FINGERPRINTING AND CRIMINAL BACKGROUND VERIFICATION. If CITY employees or contractors will have access to the SCHOOL DISTRICT FACILITIES during school hours, CITY shall be responsible for ensuring compliance with all applicable fingerprinting and criminal background investigation requirements for said parties as described in Education Code section 45125.1, which may be met under the fingerprinting provisions of Title 22 of the California Code of Regulations and applicable provisions of the California Health and Safety Code relevant to community care facility licensing (Health & Safety Code, § 1500 et seq.). CITY shall provide written verification of compliance with the aforementioned fingerprinting and criminal background investigation requirements to SCHOOL DISTRICT prior to each individual's commencement of participation in CITY's Program at the SCHOOL DISTRICT FACILITIES and prior to permitting contact with any SCHOOL DISTRICT pupils. 32. LIABILITY INSURANCE. CITY shall, during the term of this Agreement, maintain in force, a combined, single-limit liability insurance policy in the amount of not less than five million dollars ($5,000,000) with SCHOOL DISTRICT, its employees and agents, at CITY's expense, named as additional insureds under those policies. All policies shall provide for a thirty (30) day written notice of any cancellation or reduction of that insurance to SCHOOL DISTRICT. CITY agrees to provide SCHOOL DISTRICT a certificate of insurance and an endorsement evidencing this coverage in a form satisfactory to SCHOOL DISTRICT upon execution of this Agreement and upon request of SCHOOL DISTRICT during the term of this Agreement. -7- 33. WORKERS' COMPENSATION INSURANCE. During the term of this Agreement, CITY shall comply with all provisions of law applicable to CITY with respect to obtaining and maintaining workers' compensation insurance. Prior to the commencement and any renewal of this Agreement and CITY's use of the SCHOOL DISTRICT FACILITIES, CITY shall provide SCHOOL DISTRICT, as evidence of this required coverage, a certificate of insurance and an endorsement evidencing this coverage in a form satisfactory to SCHOOL DISTRICT on or before the commencement or renewal date, providing that insurance coverage shall not be canceled or reduced without thirty (30) days prior written notice to SCHOOL DISTRICT. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf. CITY OF ROSEMEAD, a Municipal Corporation ATTEST: By Gloria Molleda, City Clerk MARGARET CLARK, Mayor CITY APPROVED AS TO FORM: Joseph M. Montes, City Attorney EL MONTE UNION HIGH SCHOOL DISTRICT By Board President, Theresa A. Velasco By Date Board Clerk, Tonson Man -8- -9- Attachment C EXHIBIT A Rosemead High School Athletic Track Renovation Scope of Work -10-