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HomeMy WebLinkAboutResolution 2007-030 N.C.S. 02/05/2007 Resolution No. 2007-030 N.C.S. of the City of Petaluma, California APPROVING AGREEMENT FOR RECREATIONAL DEVELOPMENT AND JOINT USE OF CITY PROPERTY BETWEEN CITY OF PETALUMA AND PETALUMA CITY SCHOOLS WHEREAS, the Corona /Ely Specific Plan calls for school sites adjacent to the Urban Separator "to place as much of their playgrounds, playfields and open space in the separator as possible;" and, WHEREAS, Petaluma City Schools has constructed the replacement Kenilworth Junior High School on School District property located adjacent to the Urban Separator; and, WHEREAS, Petaluma City Schools as part of the construction of the replacement Kenilworth Junior High School, has constructed athletic fields on the urban separator as specified in the Corona /Ely Specific Plan; and, WHEREAS, Petaluma City Schools has constructed the athletic fields on the Urban Separator at their cost and. will pay for the maintenance, repairs and utility costs for said athletic fields; and, WHEREAS, said athletic fields will be used by Kenilworth Junior High School during school hours and by the Petaluma community during non-school hours, with all non-school use scheduled by the City of Petaluma. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Petaluma, that it hereby approves the Agreement for Recreational Development and Joint Use of City Property between City of Petaluma and Petaluma City Schools attached hereto as Exhibit A, and authorizes the City Manager to sign the agreement. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approv s t Council of the City of Petaluma at a Regular meeting on the 5`~' day of February, f rnr 2007, by the following vote: City Attorney AYES: Barrett, Vice Mayor Nau, O'Brien, Rabbitt, Mayor Torliatt NOES: None ABSENT: Harris ABSTAIN: None ATTEST: City Clerk Mayor Resolution No. 2007-030 N.C.S. Page 1 EXHIBIT A AGREEMENT FOR RECREATIONAL DEVELOPINENT AND JOINT USE OF CITY PROPERTY BETWEEN CITY OF PETALUMA AND PETALUMA CITY SCHOOLS 1. Parties. This Agreement is made and entered into this day of , 2006 ("Effective Date"), by and .between the CITY OF PETALUMA; a municipal corporation of the State. of California ("City" or "Petaluma") and PETALUMA CITY SCHOOLS in Sonoma County, California, a public school district ("Districtu). Collectively, City and District are sometimes referred to as "Parties" herein. 2. Recitals. A. District owns, maintains and controls certain real property, school buildings, and grounds known as Kenilworth Junior High School ("School", located at 800 Riesling Road, Petaluma, Ca 94954 (the "Schoo! Site"), as further described. in Exhibit "A" attached hereto and incorporated by this reference. B. City owns and controls certain real property adjacent to and east of the School Site, designated in City's General Ptan as "Urban Separator", a portion of which is the subject of this Agreement comprised of 4.75 acres as shown in Exhibit "B" hereto, which is incorporated herein by reference, ("the Field"). C. City's General Plan provides that community recreational use is an appropriate use compatible with the Urban Separator, and the activities contemplated in this Agreement are therefore consistent with City's General Plan. D. In accordance with California Education Code sections 10900 et seq., the Parties may jointly organize, promote and conduct programs of community recreation and develop community recreation facilities. E. In accordance with the Civic Center Act, California Education Code sections 38130 et seq., District may grant use of District facilities for recreational and/or other appropriate purposes. F. District is in need of level land suitable for development of active turt areas for the purpose of extending school curriculum and sports activities; and G. City has determined that granting District a license to use and develop the Field under the terms and conditions of this Agreement will benefit the citizens of Petaluma. H. District desires to develop and maintain the Field for its, the City's and the public's joint use and enjoyment, upon the terms provided herein. f. City and District agree that sharing of the Field and the recreational facilities contemplated in this Agreement will serve the best interests of City, District and the entire Petaluma community Resolution No. 2007-030 N.C.S. Page 2 J. Accordingly, the Parties have concluded that it is to the substantial advantage of the public generally to enter into this Agreement. 3. Purpose. The primary purpose of this Agreement is to provide the terms under which District will develop certain community recreation facilities on City property and under which City and District will jointly use those facilities for School purposes and for community recreation and education programs and activities. 4. No Separate Entity Created. The Parties do not intend to create a separate public agency through this Agreement, and no provision of this Agreement should be so construed. 5. Term. The initial term of this Agreement shall be twenty-five (25) years, commencing on the Effective Date stated above, provided that City Council of City and the Governing Board of District have first acted to authorize City and District, respectively, to enter into this Agreement. It is the intent of the parties that this Agreement be renewed for a term up to an additional twenty-five (25) years upon expiration of the initial term of this Agreement, with the goal of ensuring the continued availability of the Field for School, City and community use, as envisioned in this Agreement. Accordingly, the parties agree to meet and confer at least one year prior to the termination of the initial term of this Agreement and negotiate in good faith such mutually acceptable renewal andlor modification of this Agreement as may be deemed appropriate by the parties, consistent with the intent and purposes of this Agreement. 6. Development and Maintenance of Recreational Facilities - Qbiigations of the Parties. a. Field Development Master Plan District has developed a written Master Plan for the installation and development of recreational facilities on the Field, including but not limited to grading, installation and development of playing fields, sprinkler systems, recreational equipment, gardens, landscaping and recreational. amenities (collectively, "Recreational Facilities"). District has completed construction of the Recreational Facilities on the Field in conformance with the Master Plan, and in compliance with the California Environmental Quality Act. b. Recycled Water System Development The City shall design and install a mainline recycled water pipeline at a future date to be determined by the City. As part of this Agreement and the Master Plan, District shall design.and install'an irrigation system for irrigation of the Field that meets City's requirements for the production, distribution and use of recycled water. Prior to such time as the mainline recycled water pipeline is installed by City, District will irrigate the field with potable water. Joint Use Agreement City of PetalumaJPetaluma City Schools Page 2 of 11 #872843 Resolution No. 2007-030 N.C.S. Page 3 District shall pay for water used and for the cost of system development, operation, maintenance and repairs of the irrigation system between the point of connection of the. Field irrigation system to City's potable water system and the areas irrigated by the Field irrigation system. District shall pay to City, at the time of connection of the Field irrigation system to City's potable water system, the water capacity charge for such connection which is then in place pursuant to applicable City code and regulations. The District shall connect to the City's mainline recycled water pipeline within 60 days after the City completes construction of the mainline recycled water pipeline. Once the District connects its irrigation system to the City's mainline recycled water pipeline, the District shall remove the irrigation connection to the City's potable water system. The City shall be responsible for the operation, maintenance and repair of the mainline recycled water pipeline. The District shall be responsible for the-costs of water and operation, maintenance and repair of the Field irrigation system between the point of connection to the City's mainline recycled water pipeline and the areas irrigated by the Field irrigation system. c. Obligations of District (i) District shall install, maintain, repair, and replace all Recreational Facilities on the Field in conformance with the approved Master Plan and any amendments thereto. It is understood that it will be necessary to suspend use of the Recreational Facilities from time to time in order for the District to undertake. necessary maintenance, repairs, modification or replacement of improvements. District shall provide City with written notification as soon as possible of any proposed work which will require a temporary suspension of use of the Recreational Facilities, so that City may make the necessary scheduling changes to minimize or avoid impact to City-sponsored and community recreational programs and uses: District shall provide City with written notification of the need to temporarily suspend use of the Recreational Facilities for maintenance, repair, modification or replacement as far in advance of any temporary suspension of use as possible, and at least one week in advance unless not practicable due to exigent circumstances, in which case notification shall be provided as soon as passible under the circumstances. . (ii) Except as otherwise provided herein, District shall pay all costs of preparing. and presenting the Master Plan, designing, maintaining, repairing or replacing any Recreational Facilities installed pursuant to the approved Master Plan and .shall pay for all utilities, including, but not limited to, water, sewer and electricity required to maintain, repair, replace and service the Recreational Facilities (iii) District agrees to install and design the Recreational Facilities on the Field in compliance with all applicable law and City regulation, including, but not limited to, the Americans with Disabilities Act. District further agrees to operate all programs provided by the District at the Field in full compliance with all applicable law and City regulation, including, but not limited to, the Americans with Disabilities Act. (iv} District shall allow City to install at a mutually agreed upon location on the Field, portable restrooms sufficient for authorized public use. The cost of placing, maintaining, servicing and removal of any such portable restrooms shall be paid by City or by community sports organizations, at City's discretion. (v) District shall design and install in such fashion as to not unnecessarily obstruct District's development and use of the Field, a public pedestrian/bicycle pathway as part Joint Use Agreement City of Petaluma/Petaluma City Schools Page 3 of 11 #872843v3 Resolution No. 2007-030 N.C.S. Page 4 of the City's Urban Growth Boundary path system. Costs for the design, construction and maintenance of any such path shall be the responsibility of District. Nothing in this Agreement shall require District to permit uncontrolled public access across the School Site or the Field during School Hours. d. Obligations of City (i) City shall permit District to install Recreational Facilities at the Field pursuant to the approved Master Plan. City shall at all times retain title and ownership of the real property which comprises the Field. District's interest in City's real property, the Field and/or the Urban Separator pursuant to this Agreement or otherwise is a license for the use permitted under this Agreement. No provision of this Agreement shall grant District a leasehold or any ownership interest in City's real property, other than the described license. 7. Joint Use of City Property and Recreational Facilities. a. Use of the Field and Recreational Facilities District shall have exclusive use and control of the Field and Recreational Facilities during School Hours. School Hours means all- hours when School is in session and during School events and activities., including, but not limited to, assemblies, student productions, athletic team practice, or other School functions (collectively, "After School Events"). School Hours shall include thirty (30) minutes before and after the school session and After School Events, or such time as may actually be needed to ensure student safety and to allow for set up, preparation, and cleaning. All other times are referred to as "non-School Hours." Non-School Hours shall be deemed to be at least as extensive as City's normal park operating hours, including operating hours for lighted recreational fields located elsewhere in City. District shall not authorize third party use of the Field and Recreational Facilities for non-School functions without prior written approval of City. City shall have priority use of the Field and Recreational Facilities during non-School Hours, provided, however, that such use shall not interfere with the use of the Field and/or Recreational Facilities for School purposes, pursuant to section 10910 of the California Education Code. When not in use by District or City, City may permit use of the Field and Recreational Facilities by third party users in conformance with City policies and procedures, and the provisions of this Agreement. City will require completion of an application and permit before City approves use of the Field and Recreational Facilities by any organized third party group, such application and permit to be substantially in the form attached to this Agreement as Exhibit C. City will provide District with a copy of all issued permits, pursuant to this subparagraph. Any permit issued will require as a condition of issuance, indemnification of City and of District, and of their respective officers, board members, employees and agents, to the full extent permitted by law and proof of general liability insurance with coverage limits no less than One Million Dollars ($1,000,000), with City and District named as an additional insureds. Joint Use Agreement City of Petaluma/Petaluma City Schools Page 4 of 11 #8728433 Resolution No. 2007-030 N.C.S. Page 5 8. Joint Use berms and Conditions a. Scheduling Except as otherwise provided herein, City shall schedule and coordinate all use of the Field and recreational facilities covered by this Agreement during non- . School Hours, including authorized use by third parties. City shall prepare an annual or semi-annual calendar with its intended schedule and use of the Field and Recreational Facilities. City will consult with District during the preparation of such calendar, so that District may include, if applicable, District activities scheduled outside of School Hours. City shall send a copy of each such calendar to District no later than ten (10) days prior to the commencement of the School year for an annua! calendar, and no later than ten (10) days prior to commencement of each semester far asemi-annual calendar. City reserves the right to add activities or permit additional use of the Field and./or Recreational Facilities by the public which would be otherwise allowed by this Agreement after the calendar is prepared and transmitted, and shall promptly provide District with written notice of any such additional activities or uses. b. Applicable Laws and Rules City and District agree to conduct their respective activities under this Agreement in accordance with all applicable laws, regulations, policies, and procedures and the terms of this Agreement. Use or possession of alcoholic beverages at the Field and/or Recreational- Facilities shall be strictly prohibited pursuant to section 25608 of the California Business and Professions Code and this Agreement. No firearms shall be permitted on the Field or the Recreational Facilities. c. Personnel and Equipment 1) Each party shall provide to the other party a list of a{{ names and classifications of employees that are to be hired or assigned to staff events at the Field and/or the Recreational Facilities, and will ensure that all such employees are informed of and required to comply with the terms of this Agreement as well as all laws, regulations, and policies and procedures applicable to use of the Field and/or Recreational Facilities. City and/or community groups, as applicable, shall be solely responsible for providing all necessary supervision and teaching personnel for all activities conducted by City and/or community groups using the Field and/or Recreational Facilities. District shall be solely responsible for providing all necessary supervision and teaching personnel for all activities conducted by District using the Field and/or Recreational Facilities. 2) Except as otherwise provided herein, City and/or community groups and District shall supply all necessary equipment to conduct their respective programs and activities. Joint Use Agreement City of Petaluma/Petaluma City Schools Page 5 of 11 #872843v3 Resolution No. 2007-030 N.C.S. Page 6 d. Cleanup and Maintenance Each Party shall be responsible for leaving the Field and/or Recreational Facilities clean and orderly condition following each use, and shalt further be responsible for maintenance, repair, or extra custodial. services required due to that Party's use of the Field or Recreational Facilities, except as otherwise provided herein. e. Utilities Except as otherwise provided herein, District shall pay all costs for al{ utilities for - the Field and Recreational Facilities, regardless of whether the Field or Recreational Facilities are used by City and/or the authorized general public users. f. Future Use of School Facilities District and City agree that in the event that the City sees'an opportunity in future years to expand community recreational programs or related activities at the Field or the School Site which would require the use of a District classroom, gymnasium or multi-purpose room, City and District will use all best efforts to mutually agree on conditions of such use on terms consistent with this Agreement, based on the principles for joint use and cooperation expressed in this Agreement and in conformance with 'the Civic Center Act. 9. Dangerous Conditions. Each Party shalt report to the other Party any defects or dangerous conditions in the Field or Recreational. Facilities covered by this Agreement within 24 hours of discovery, or sooner if practicable, by telephone call to a designated representative of the Party to be notified. Each Party shall provide the other with current emergency contact information for such purposes, including contact information for evenings and weekends. In addition to a telephone call, the Party discovering the defect shall provide written notice to the designated representative of the Party to be notified no later than the next business day after discovering the defect. If a Party becomes aware of a defect or dangerous condition on the Field or Recreational Facilities that Party shall immediately cease all activities and the use of the Field and Recreational Facilities until the condition has been corrected and clearance has been given by City's risk management representatives to resume use. 10. Liability and Mutual Indemnity. a. City Obligations City shall assume responsibility for all injuries or damage occurring during its use of the Field and/or Recreational Facilities pursuant to this Agreement, unless the injury or damage was caused by the sole negligence or willful misconduct of Distract or a third party over which City has no control. Joint Use Agreement City of Petaluma/Petaluma City Schools Page 6 of 11 #872843v3 Resolution No. 2007-030 N.C.S. Page 7 City shall defend, indemnify, and hold harmless District and its officers, officials, employees, agents, and volunteers from and against all claims, damages, losses and expenses, including attorney fees, arising out of or in connection with City's use of the Field and/or Recreational Facilities pursuant to this Agreement or City's acts or omissions in connection with this Agreement, except where the claim, injury, damage, loss, or expense is caused by the sole negligence or willful misconduct of District. Third party organizations or entities using the Recreational Facilities under the terms of this Agreement shall be required as a condition of use of the Recreational Facilities to provide indemnification of City and District for all claims, damages, losses and expenses, including attorney fees, arising out of that use, to the full extent permitted by law. b. District Obligations District shall assume responsibility for all injuries or damage occurring during its use 'of the Field and/or Recreational Facilities pursuant to this Agreement, unless the injury or damage was caused by the sole negligence or willful misconduct of City or a third party over which District has no control. District shall defend, indemnify, and hold harmless City and its officers, officials, employees, agents, and volunteers from and against all claims, damages, losses and expenses, including attorney fees, arising out of or in connection with District's use of the Field and/or Recreational Facilities pursuant to this Agreement or District's acts or omissions in connection with this Agreement, except where the claim, injury, damage, loss or expense is caused by the sole negligence or willful misconduct of the City. Third party organizations or entities using the Recreational Facilities under the terms of this Agreement shall be required as a condition of use of the Recreational Facilities to provide indemnification of City and District for all claims, damages, losses and expenses, including attorney fees arising out of that use, to the full extent permitted by law 11. Insurance. a. Liability Insurance Throughout the term of this Agreement, District and City shall maintain in full force and effect, subject to City's standard self-insured retention, Comprehensive General Liability or Commercial General Liability Insurance covering bodily injury (including death}, personal injury, and property damage- 1) Limits shall be in an amount not less than one million dollars ($1,000,000.00) per occurrence, and two million dollars ($2,000,000.00} aggregate if applicable. 2) District shall name City, its officers, agents, and employees, individually and collectively, as additional insureds. City shall name District, its officers, agents, and employees, individually and collectively, as additional insureds. Joint Use Agreement City of Petaluma/Petaluma City Schools Page 7 of 11 #872843v3 Resolution No. 2007-030 N.C.S. Page 8 3) The City's insurance shall be primary as to {lability arising from its use of the Field and/or Recreational Facilities, and the District's insurance shalt be primary as to liability arising from its use of the Field and/or Recreational Facilities. b. Workers' Compensation and Employer's Liability Insurance Throughout the term of this Agreement, District and City shall maintain in full force and effect, Workers' Compensation Insurance and Employer's Liability Insurance for any and all persons employed directly or indirectly. The Workers' Compensation Insurance and Employer's Liability Insurance must be provided with limits of not less than one million dollars ($1,000,000.00)-per accident. The insurance shall be endorsed to waive all rights of subrogation against the other party and its officials, officers, employees, and volunteers for loss arising from or related to the uses provided for in this Agreement. c. Property Insurance District shall be solely responsible for maintaining adequate property insurance coverage for the Recreational Facilities as well as that portion of the bicycle/pedestrian path that traverses District property. City shall be solely responsible for rrtaintaining adequate property insurance coverage for City real property. d. Notification of Change Required insurance coverage may not be suspended, voided, canceled, or reduced in coverage or in limits, unless thirty (30} days' prior written notice by certified mail, return receipt requested, has been given. to the other party to this Agreement. 12. Destruction and Damage: Total destruction of the Field or Recreational Facilities shall automatically terminate user rights under this Agreement. If the Field or Recreational Facilities become damaged, to the extent that the District or City determines that they are unusable, Distract br City shall notify the other Party, and user rights under this Agreement shall be suspended with respect to the damaged Field or Recreational Facilities until it is restored to a usable condition. District shall use its best efforts to restore the Recreational Facilities to a usable condition, if and when it is financially and practically able to do so. 13. Defaults. In the event of either Party's default of any material obligation under this Agreement, the non-defaulting Party must give the defaulting Party written notice of and a reasonable time to cure the default. If the defaulting Party has not made a substantial effort to cure the default within a reasonable time, the non-defaulting Party may perform the obligation at the expense of the defaulting Party. The defaulting Party shall reimburse the non-defaulting Party for its reasonable expenses arising directly from actions required to cure the default within thirty (30) days after the non-defaulting Party submits a detailed invoice of such costs. Joint Use Agreement City of Petaluma/Petaiuma City Schools Page 8 of 11 #872843v3 Resolution No. 2007-030 N.C.S. Page 9 14. Termination. In the event that the District permanently ceases to use the School Site as a school, this Agreement shall terminate automatically on a date thirty days from the District's permanent cessation of use. Upon termination, all improvements to the Field and/or to City-owned land shall become the property of City without reimbursement to District. 15. Mediation. In-the event of a disagreement between City and District on the interpretation of any provision of this Agreement, the following procedures shall be used: a. The City Manager and the Superintendent of Schools, or their respective designees, shall meet in person within thirty (30) days of notification by one party to the other that a disagreement exists, and attempt to informally resolve the differences. b. If no solution acceptable to both Parties is reached within thirty (30) days of the meeting described above; City and District shall select a mutually acceptable experienced mediator and engage in mediation facilitated by that mediator in an effort to arrive at a mutually acceptable solution to the disagreement. No resolution obtained in mediation shall be binding on either Party unless first ratified by the City Council of City and the Governing Board of District. The cost of the mediation shall be shared equally between the City and the District, except that each Party shall bear its own legal fees and costs for the mediation, if any. c. If a solution is not reached through mediation, each Party fully reserves and may pursue all its legal rights and remedies. 16. No Joint Venture. . The Parties hereto agree that City, its officers, agents and employees, in the performance of this Agreement, shall act in an independent capacity and not as officers, agents, employees of or joint venturers with District; and that District, its officers, agents and employees, in the performance of this Agreement, shall act in an independent capacity and not as officers, agents, employees of or joint venturers with City. 17. Agreement Not for Benefit of Third Parties. This Agreement shall not be construed as or deemed to be for the benefit of any third party or parties, and no third party or parties shall have any right of action hereunder for any cause whatsoever. Any services performed or expenditures made in connection with this Agreement by either Party shall be deemed conclusively to be for the direct protection and benefit of the inhabitants and property within the jurisdiction of such Party. 18. Successors and Assigns. Neither Party may transferor assign its rights or obligations under this Agreement, in part or in whole, without the other Party's prior written consent. The terms and provisions of this Joint Use Agreement City of Petaluma/Petaluma City Schools Page 9 of 11 #872843v3 Resolution No. 2007-030 N.C.S. Page 10 Agreement shall extend to and be binding upon and inure to the benefit of the successors and permitted assigns of the Parties. 19. Amendments. This Agreement can only be amended by a writing duly authorized and signed by both Parties. 2Q. Severability. In the event that any provision herein is held to be invalid by any court of competent jurisdiction, the invalidity of any such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. 21. Time is of the Essence. Time is of the essence for each and all of the terms and provisions of this Agreement. 22. Written Agreement. Neither Party has relied on any promise or representation not contained in this Agreement. This Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the Parties regarding the subject matter of this Agreement and supersedes all prior written or oral understandings or agreements of the Parties. Upon execution of this Agreement by the Parties, all prior written agreements between the Parties as to the subject matter of this Agreement shall be deemed terminated in their entirety. This Agreement has been jointly drafted by the Parties and is the result of negotiations between the Parties. 23. Headin~as. The headings of the paragraphs are for convenience only and are not a part of this Agreement, nor shall they be considered in construing the intent of this Agreement nor affect any of the rights or obligations of the Parties. 24. Governing Law. This Agreement shall be governed by the laws of the State of Califomia and action brought relating to this Agreement shall be brought solely in a court of competent jurisdiction in Sonoma County, Califomia. 25. Notices. All notices, including invoices, given hereunder shall be in writing and shall be deemed to have been given if personally delivered or deposited in the United States mail postage prepaid, certified or registered, return receipt requested, and addressed to the other party as follows or as otherwise designated by written notice hereunder from time to time: Joint Use Agreement City of PetalumalPetaluma City Schools Page 10 of 11 #$72843~l3 Resolution No. 2007-030 N.C.S. Page 11 To City: City Manager City of Petaluma P.O. Box 61 Petaluma, Ca 94953 To District: Superintendent of Schools Petaluma City Schools 200 Douglas Street Petaluma, Ca 94952 26. Authorization. Each person signing below represents that (s)he is duly authorized to do so by the party (s}he represents. CITY OF PETALUMA PETALUMA CITY SCHOOLS By: gy: Michael Bierman, City Manager Steve Bolman, Deputy Superintendent APPROVED AS TO FORM: By: By Eric W. Danty, City Attorney Clare Gibson, Associate General Counsel Joint Use Agreement City of Petaluma/Petaiuma City Schools Page 11 of 11 #872843 Resolution No. 2007-030 N.C.S. Page 12