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2300 - El Monte Union High School District - Joint Use Agreement of Synthetic TrackAGREEMENT 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. 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. I" 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 CITY: Attn: Tony Ortega, Assistant Supt. 3537 Johnson Ave. El Monte, CA 91731 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 0 U.S.C. Section 12101 et seq.), as the same maybe 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 1X 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; SEVERABILITY. 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 (55,000,000) 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. ATTEST: `Gloria Molleda, City Clerk APPROVED AS TO FORM: Josep . Monte ; City Attorney CITY OF ROSEMEAD, a Municipal Corporation Bycu MARCfARET CLARK, Mayor CITY EL MONTE UNION HIGH SCHOOL DISTRICT By L L Board President, Theresa A. Velasco By �- Board Clerk, Tonson Man N EXHIBIT A Rosemead High School Athletic Track Renovation Scope of Work -to- Board Report #165 November 4, 2009 EL MONTE UNION HIGH SCHOOL DISTRICT (Action - Discussion) BOARD REPORT #165 TITLE: CONSIDER APPROVAL OF RESOLUTION REQUESTING THE CITY COUNCIL OF THE CITY OF ROSEMEAD AUTHORIZING THE ROSEMEAD COMMUNITY REDEVELOPMENT AGENCY TO PROVIDE FUNDS TO THE EMUHSD FOR THE CONSTRUCTION OF A SYTHETIC TRACK AT ROSEMEAD HIGH SCHOOL SUMMARY: The EMUSHD requests that the City of Rosemead authorize the Community Redevelopment Agency (RDA) provide funds for the construction of a synthetic track at Rosemead High School. The District is requesting the City consent to the RDA to provide funds in an amount not to exceed 60% of the total cost of the construction of a synthetic track. RECOMMENDATION: The district administrative staff recommends approval of the Resolution with the City of Rosemead for the construction of a new track at Rosemead High School. CONTACT PERSONS: Anthony M. Ortega, Assistant Superintendent, Business Ernany Montijo, Director of Business Services El MONTE UNION HIGH SCHOOL DISTRICT RESOLUTION OF THE BOARD OF TRUSTEES FOR THE EL MONTE UNION HIGH SCHOOL DISTRICT REQUESTING THE CITY COUNCIL OF THE CITY OF ROSEMEAD APPROVE A RESOLUTION AUTHORIZING THE ROSEMEAD COMMUNITY REDEVELOPMENT AGENCY TO PROVIDE FUNDS TO THE EL MONTE UNION HIGH SCHOOL DISTRICT IN AN AMOUNT NOT TO EXCEED 60% OF THE TOTAL COST OF CONSTRUCTION OF A NEW SYNTHETIC TRACK AT ROSEMEAD HIGH SCHOOL. WHEREAS, the El Monte Union High School District ( "District') through its the Governing Board ('Board ") provides for the educational needs for 9 -12 students within the City of Rosemead; and WHEREAS, the Rosemead Redevelopment Agency (the "Agency ") 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, including the power to expend funds for the construction of a synthetic track in the Redevelopment Project Area; and WHEREAS, the City of Rosemead, is authorized to consent to payment by its Redevelopment Agency for the construction of a synthetic track provided that necessary findings can be made; and WHEREAS, the District, has requested that the Agency provide funds to assist in construction of a synthetic track; and WHEREAS, the Agency desires to provide funds to the District to assist in the construction of a synthetic track; and NOW, THEREFORE, THE EL MONTE UNION HIGH SCHOOL DISTRICT DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. Recitals. The El Monte Union High School District finds and declares that the above recitals are true and correct and incorporates them herein. SECTION 2. District Request. The District hereby requests the City of Rosemead to consent to the Agency to provide funds to the District for the construction of a synthetic track at Rosemead High School (the 'Project'). The District is requesting that the City consent to the Agency to provide funds in an amount not to exceed 60% of total cost of the construction of a synthetic track. SECTION 3. Findings The District hereby determines that: (i) The Project is of benefit to the Redevelopment Project Area, the community and the students at Rosemead High School. (ii) There are no other reasonable means of financing the Project. This finding is based on the lack of sufficient funds that the District has for the Project. Currently the District has committed funds to other necessary projects and does not have enough funds for the track. (iii) The Project will assist in the promotion of a healthy life style, enhance the physical education program at Rosemead High School and provide a safe and controlled walk/run surface for the community. SECTION 4. Effective Date. This Resolution shall take effect from and after its date of passage, approval and adoption. SECTION 5. Certification. The District Secretary shall certify the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this day of 2001. ATTEST: Board President /c�•' .CX PLC 1. C77— Board Secretary APPROVED AS TO FORM: T District Administrator Board Report #126 October 7, 2009 EL MONTE UNION HIGH SCHOOL DISTRICT (Action- Discussion) BOARD REPORT #126 TITLE: CONSIDER APPROVAL OF AGREEMENT BETWEEN EMUHSD AND THE CITY OF ROSEMEAD FOR INSTALLATION OF A SYNTHETIC RUNNING TRACK AT THE ROSEMEAD HIGH SCHOOL STADIUM SUMMARY: The agreement between the EMUHSD and the City of Rosemead for the installation of a synthetic running track at Rosemead High School outlines the shared usage, maintenance, and cost of the new track. The City of Rosemead has agreed to contribute sixty percent (60 %) of the cost of improvement to the track with the remaining forty (40 %) to be charged to the EMUHSD GO Bond funds. Final cost of the track will be determined upon completion of the open bid process or may be included with the lease- leaseback contractor as an addendum/change order. Once cost for the track is finalized, a board report will be submitted to the Board of Trustees for approval. RECOMMENDATION: The district administrative staff recommends approval of the contract with the City of Rosemead for the installation of a synthetic running track at Rosemead High School. CONTACT PERSONS: Anthony M. Ortega, Assistant Superintendent- Business Larry Cecil, Principal, Rosemead High School Emany Montijo, Director of Business Services 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. 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 exce& ($ .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 CITY: Attn: Tony Ortega, Assistant Supt. 3537 Johnson Ave. El Monte, CA 91731 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 12101 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 1X 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; SEVERABILITY. 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 6f 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. ATTEST: G a, City Clerk APPROVED AS TO FORM: i Josep . Monte , City Attorney CITY OF ROSEMEAD, a Municipal Corporation By 0 ?Za, :, /i - MARdARET CLARK, Mayor CITY EL MONTE UNION HIGH SCHOOL DISTRICT By JL� 4- Board President, Theresa A. Velasco By - Board Clerk, Tonson Man N ME EXHIBIT A Rosemead High School Athletic Track Renovation Scope of Work Board Report #165 November 4, 2009 EL MONTE UNION HIGH SCHOOL DISTRICT (Action- Discussion) BOARD REPORT #165 TITLE: CONSIDER APPROVAL OF RESOLUTION REQUESTING THE CITY COUNCIL OF THE CITY OF ROSEMEAD AUTHORIZING THE ROSEMEAD COMMUNITY REDEVELOPMENT AGENCY TO PROVIDE FUNDS TO THE EMUHSD FOR THE CONSTRUCTION OF A SYTHETIC TRACK AT ROSEMEAD HIGH SCHOOL SUMMARY: The EMUSHD requests that the City of Rosemead authorize the Community Redevelopment Agency (RDA) provide funds for the construction of a synthetic track at Rosemead High School. The District is requesting the City consent to the RDA to provide funds in an amount not to exceed 60% of the total cost of the construction of a synthetic track. RECOMMENDATION: The district administrative staff recommends approval of the Resolution with the City of Rosemead for the construction of a new track at Rosemead High School. CONTACT PERSONS: Anthony M. Ortega, Assistant Superintendent, Business ErnanyMontijo, Director of Business Services El MONTE UNION HIGH SCHOOL DISTRICT RESOLUTION OF THE BOARD OF TRUSTEES FOR THE EL MONTE UNION HIGH SCHOOL DISTRICT REQUESTING THE CITY COUNCIL OF THE CITY OF ROSEMEAD APPROVE A RESOLUTION AUTHORIZING THE ROSEMEAD COMMUNITY REDEVELOPMENT AGENCY TO PROVIDE FUNDS TO THE EL MONTE UNION HIGH SCHOOL DISTRICT IN AN AMOUNT NOT TO EXCEED 60% OF THE TOTAL COST OF CONSTRUCTION OF A NEW SYNTHETIC TRACK AT ROSEMEAD HIGH SCHOOL. WHEREAS, the El Monte Union High School District ( "District') through its the Governing Board ('Board ") provides for the educational needs for 9 -12 students within the City of Rosemead; and WHEREAS, the Rosemead Redevelopment Agency (the "Agency') 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, including the power to expend funds for the construction of a synthetic track in the Redevelopment Project Area; and WHEREAS, the City of Rosemead, is authorized to consent to payment by its Redevelopment Agency for the construction of a synthetic track provided that necessary findings can be made; and WHEREAS, the District, has requested that the Agency provide funds to assist in construction of a synthetic track; and WHEREAS, the Agency desires to provide funds to the District to assist in the construction of a synthetic track; and NOW, THEREFORE, THE EL MONTE UNION HIGH SCHOOL DISTRICT DOES RESOLVE, DECLARE, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. Recitals. The El Monte Union High School District finds and declares that the above recitals are true and correct and incorporates them herein. SECTION 2. District Request. The District hereby requests the City of Rosemead to consent to the Agency to provide funds to the District for the construction of a synthetic track at Rosemead High School (the 'Project'). The District is requesting that the City consent to the Agency to provide funds in an amount not to exceed 60% of total cost of the construction of a synthetic track. SECTION 3. Findings The District hereby determines that: (i) The Project is of benefit to the Redevelopment Project Area, the community and the students at Rosemead High School. (ii) There are no other reasonable means of financing the Project. This finding is based on the lack of sufficient funds that the District has for the Project. Currently the District has committed funds to other necessary projects and does not have enough funds for the track. (iii) The Project will assist in the promotion of a healthy life style, enhance the physical education program at Rosemead High School and provide a safe and controlled walk/run surface for the community. SECTION 4. Effective Date. This Resolution shall take effect from and after its date of passage, approval and adoption. SECTION 5. Certification. The District Secretary shall certify the adoption of this Resolution. PASSED, APPROVED AND ADOPTED this � day of *, 2001. ATTEST: Board President p'l—WA q,(.F_ c.t tc Board Secretary APPROVED AS TO FORM: District Administrator �P-i � EVIDENCE OF COVERAGE El Monte Union High School MEMORANDUM NUMBER: 17 This Evidence of Coverage is used as a matter of information only and confers no rights upon the Certificate Holder. This Evidence of Coverage does not amend, extend, or alter the coverage afforded by the memoranda listed below. CERTIFICATE HOLDER INFORMATION Jean Scott Garvey Center 9108 Garvey Avenue Rosemead, CA 91770 For Adult Ed classes Coverage Period: Effective: 7 -1 -08 Expires 12:01 a.m.: 7 -1 -09 This is to certify that the Alliance of Schools for Cooperative Insurance Programs (ASCIP) Memorandum of Coverages on insurance listed below have been issued to the Covered Party named above for the period indicated. Notwithstanding any requirement, term, or condition of any contract or other document with respect to which this Evidence of Coverage may be used or may pertain, the coverages afforded by the Memorandum of Coverages described herein are subject to all the terms, exclusions, and conditions of such Memorandum of Coverages. TYPE OF COVERAGE LIMIT OF LIABILITY /COVERAGE General Liability $1,000,000 Combined Single Limit Per Occurrence Automobile Liability $1,000,000 Combined Single Limit Per Occurrence Automobile Physical Damage Actual cash value (Comprehensive /Collision) Property - Building /Contents Replacement cost subject to policy limits, terms, and conditions (Fire, Theft, Rental Interruption) Employee Honesty (Crime) Subject to policy limits, terms, and conditions Should any of the above coverages for the Covered Party be changed or withdrawn prior to the expiration date issued above, ASCIP will mail 30 days written notice to the Certificate Holder, but failure to mail such notice shall impose no obligation or liability of any kind upon ASCIP, its agents, or representatives. If you have any questions, contact: Ms. Paula Chu Tanguay, Chief Executive Officer ASCIP • 12750 Center Court Drive • Suite 205 • Cerritos, CA 90703 • (562) 40311640 Authorized B Date Issued: * ASCIP is ajoint powers authority pursuant to Article 1 (commencing with Section 6500) of Chapter 5 of Division 7 of Title I of the Government Code and Sections 39603 and 81603 of the Education Code. A Rev 5 -97 / 17- 08/09 -OOC .0 Iliance of Schools for Cooperative Insurance Programs 12750 Center Court Drive, Suite 205, Cerritos, CA 90703 (562) 403.4640