Loading...
HomeMy WebLinkAboutStaff Report 3802 City of Palo Alto (ID # 3802) City Council Staff Report Report Type: Consent Calendar Meeting Date: 6/24/2013 City of Palo Alto Page 1 Summary Title: PAUSD Field Brokering and Maintenance Agreement Title: Approval of an Agreement Between the City of Palo Alto and the Palo Alto Unified School District of Santa Clara County Concerning the Public Use, Brokering, and Maintenance of District-Owned Athletic Fields, Tennis Courts and Basketball Courts Jointly Used by School Students and the General Public From: City Manager Lead Department: Community Services Recommendation Staff recommends the Council approve, and authorize the City Manager to sign the agreement (Attachment A) with the Palo Alto Unified School District (PAUSD) for the period January 1, 2013 through December 31, 2013. The referenced agreement is for athletic field and tennis court maintenance, community use of the school district’s elementary and middle school fields as well as tennis and basketball courts at middle and high schools, which will continue to be brokered by the City for recreational and athletic use. Background In 1993, the City and PAUSD met to discuss maintenance needs of school district athletic fields in light of school district budget constraints and existing public use of school district fields. A partnership was formed and commenced in 1995 for the City to maintain select PAUSD athletic fields for both school and community use with an equal cost share. In addition, the partnership also included an equal cost share for capital improvements to athletic fields. The agreement has since been revised several times with the most recent change being implemented in January 25, 2010 for a three-year term, set to end on December 31, 2012 (CMR:123:10). The most recent agreement removed cost sharing for capital improvements and the cost is now fully incurred by PAUSD. Staff requested an extension of the term of the contract for 6 months to allow negotiations with the School District. The agreement will continue to encompass athletic fields at 13 elementary schools and three middle schools, and tennis courts at five district high schools. City of Palo Alto Page 2 In addition to the field maintenance part of the agreement, there is also the public community use and brokering of PAUSD athletic fields and courts outside of school activity hours. Community use of school district athletic fields and courts is administered by the City through a field brokering process, and revenue is shared between both parties. Discussion Staff has worked cooperatively with PAUSD staff to negotiate a new agreement. The agreement provides for the continued maintenance of school district field at all of PAUSD elementary schools, as well as the fields at Jane L. Stanford (JLS) and Jordan Middle Schools. The fields at Terman Middle School are dedicated park land and are maintained in a manner similar to other City parks’ maintenance. The maintenance of turf areas includes mowing, edging, de-thatching, reseeding, aeration, maintenance of irrigation heads, and valves and controllers. The agreement provides for the maintenance of tennis courts and basketball courts at Jordan, Terman, and JLS Middle Schools and at Gunn and Palo Alto High Schools. This work includes periodic sweeping of the court surfaces and washing during the summer months. The terms of sharing expenses for field and court maintenance continues to be split evenly between PAUSD and the City (50%/ 50%). The City will continue to broker the fields, tennis courts and basketball courts in accordance with the Council-approved Field Use Policy. This policy is intended to ensure that the public, both youth and adults, has fair access to all PAUSD and City-owned fields and athletic facilities. The criteria incorporated into the Field Use Policy helps ensure that Palo Alto children and non-profit sports clubs have top priority to field space for practice and competition. The terms of the fee sharing between the City and PAUSD continue to be 60% City/ 40% District. The City places a high priority on the maintenance of school playing fields and courts for physical fitness, recreation, and safety. This agreement will continue the commitment to high quality turf and court surfaces. The term for this agreement has been limited to a one-year period to ensure that it aligns with the expected completion date for negotiations regarding the Cubberley Community Center agreement between the City and PAUSD, which is expected to occur by December 31, 2013. City of Palo Alto Page 3 Policy Implications This agreement is consistent with City and PAUSD policies. The cooperative use of PAUSD fields and courts furthers Policy C-4 of the Community Services element of the City’s Comprehensive Plan: “Maintains a close, collaborative relationship with the PAUSD to maximize the use of school services and facilities for public benefit, particularly for young people, families, and seniors.” Resource Impact This recommendation has been budgeted as a continuing program in the 2014 Fiscal Year budget. There will be no additional General Fund or Capital Fund financial impact as a result of this agreement. Environmental Review This recommendation is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to section 15301 (existing facilities) of the CEQA guidelines. Therefore, no environmental assessment is required. Attachments:  Attachment A - PAUSD Brokering and Maintenance Agreement (PDF) 130613 dm 00710215 1 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND THE PALO ALTO UNIFIED SCHOOL DISTRICT OF SANTA CLARA COUNTY CONCERNING THE PUBLIC USE, BROKERING AND MAINTENANCE OF DISTRICT-OWNED ATHLETIC FIELDS, TENNIS COURTS AND BASKETBALL COURTS JOINTLY USED BY SCHOOL STUDENTS AND THE GENERAL PUBLIC This AGREEMENT CONCERNING FIELD AND COURT USE, BROKERING AND MAINTENANCE (the “Agreement”) is entered into as of _January 1, 2013 (the “Effective Date”), by and between the CITY OF PALO ALTO, a California chartered municipal corporation (the “CITY”) and the PALO ALTO UNIFIED SCHOOL DISTRICT OF SANTA CLARA COUNTY, a unified school district organized and existing under the Laws of the State of California (the “DISTRICT”) (individually, a “Party” and, collectively, the “Parties”), in reference to the following facts and circumstances: RECITALS: A. Section 10900 et seq. of the California Education Code authorizes public authorities (e.g., cities and school districts) to organize, promote and conduct programs of community recreation, establish systems of playgrounds and recreation, and acquire, construct, improve, maintain and operate recreation centers within or without the territorial limits of such public authorities. B. Section 10905 of the California Education Code authorizes public authorities to enter into agreements with each other for the maintenance of recreation centers. C. Section 10910 of the California Education Code provides that the governing body of any school district may use or grant the use of any grounds of the school district to any other public authority for the organizing, promoting and conducting of community recreation whenever such use will not interfere with the use of those facilities for any other purpose of the public school system. D. The Parties have jointly kept open for school student and general public use in Palo Alto the athletic fields, basketball courts and tennis courts at the elementary and middle schools and the tennis courts at Palo Alto and Gunn High Schools, and they desire to continue arrangements for their common use. E. The Parties are interested in continuing a long-term, joint funding arrangement under which the CITY will undertake the maintenance of the athletic field areas of the thirteen elementary schools and the two middle schools, basketball and tennis court areas and the two high school tennis courts, and the eight shared-use exterior basketball court areas and the two tennis courts at Terman Park (see Attachment A) to enhance their usability by school students and the general public, and the DISTRICT will make such areas available to the general public at 130613 dm 00710215 2 reasonable times (before 8:00 a.m. or after 4:00 p.m. Monday – Friday on school days) when such areas are not being used exclusively for school purposes. AGREEMENT: NOW, THEREFORE, in consideration of the Recitals A through E, inclusive, which are made a substantive part of this Agreement, and the Provisions of this Agreement, the Parties agree: SECTION 1. DEFINITIONS The terms used in this Agreement will have the meanings set forth below, unless the context clearly indicates otherwise. “Board of Education” means the Board of Education of the DISTRICT. “Business Manager” means the Chief Business Official of the DISTRICT, including any authorized representative. “Capital Improvement” means any Improvement which has a standalone cost exceeding $25,000, or which has a useful life of, or whose useful life can be extended, at least five to seven years, or which has a useful life of at least five to seven years after it is capable of providing a new functional use. “City Manager” means the city manager of the CITY, including any authorized representative. “Council” means the city council of the CITY. “Court” (collectively, the “Courts”) means any one of the tennis or basketball court areas depicted in the description of “Facilities” and Attachment A. “Director” means the Director of Community Services of the CITY, including any authorized representative. “Facilities” mean the Courts and Fields, the dimensions of which for reference purposes are outlined below: // // 130613 dm 00710215 3 School Site Fields Courts Basketball Exhibit Addison 1.58 acres 0 A Barron Park 2.34 acres 0 B Briones 1.25 acres 0 C Duveneck 1.80 acres 0 D El Carmelo 1.81 acres 0 E Escondido 2.44 acres 0 F Fairmeadow 2.06 acres 0 G Greendell 1.79 acres 0 H Gunn High School 0 acres 7 I Hoover 1.60 acres 0 J J.L. Stanford Middle 10.45 acres 6 6 K Jordan Middle 6.68 acres 5 6 L Nixon 3 71 acres 0 M Ohlone 1.53 acres 0 N Palo Alto High School 0 acres 7 O Palo Verde .62 acres 0 P Walter Hays 2.71 acres 0 Q Terman Park 4.00 acres 2 5 R* “Field” (collectively, the “Fields”) means any one of the athletic field areas referred to in the description of “Facilities” and Attachment A. “Improvement” means any physical addition, alteration, or betterment to the Facilities. “Law” (collectively, the “Laws”) means any code, statute, constitution, ordinance, resolution, regulation, rule, judicial decision, administrative order, or other requirement of any municipal, county, state, federal, or other governmental agency or authority having jurisdiction over the parties or the Schools, in effect at the time of execution of the Agreement or at any time during the term hereof, including, without limitation, any regulation or order of an official entity or body. “Maintenance” means the care and servicing on an ongoing and repeating schedule by personnel for the purpose of maintaining facilities in proper condition, proper working order, sound upkeep, a safe condition, in good repair, by providing for systematic inspection, detection, and correction of incipient failures either before they occur or before they develop into major defects. It includes the inspection, replenishment, preservation, adjustments, and replacement of unserviceable parts and components, including, but not limited to, poles, backboards, netting, hoops, striping, specialty surfaces, irrigation heads and controllers where applicable at the specific site. “Preventive maintenance” means any and all maintenance activities that could reasonably be predictive. The CITY specifically and intentionally excludes the replacement of 130613 dm 00710215 4 entire systems or facilities that would constitute an “infrastructure” investment (capital investments for facilities or structures with a life cycle beyond five years). “Provision” (collectively, the “Provisions”) means any agreement, clause, condition, covenant, qualification, recital, restriction, reservation, term, or other stipulation in this Agreement that defines or otherwise controls, establishes, or limits the performance required or permitted by any party to this Agreement. All Provisions, whether covenants or conditions, which are applicable to the DISTRICT, will be deemed to be both covenants and conditions. “School” (collectively, the “Schools”) means any one of the following elementary, middle or high schools: Addison, Barron Park, Briones, Duveneck, El Carmelo, Escondido, Fairmeadow, Greendell, Gunn, Hoover, J.L. Stanford, Jordan, Nixon, Ohlone, Palo Alto High, Palo Verde, Walter Hays and Terman Park. “Superintendent” means the Superintendent of schools for the DISTRICT, including any authorized representative. SECTION 2. TERM AND TERMINATION 2.1 The term of this Agreement will be for approximately one (1) year commencing at 6:00 a.m. on January 1, 2013, and expiring at 12:00 a.m. midnight on December 31, 2013, subject to the earlier termination of this Agreement by any Party hereto upon ninety (90) days’ advance written notice. The preceding sentence notwithstanding, this Agreement is subject to the fiscal provisions of the Charter of the CITY and other Laws of the CITY and the DISTRICT, and this Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that funds are not appropriated by the Council or Board of Education for the following fiscal year, or (b) at any time within a fiscal year in the event that funds are not appropriated by the Council or Board of Education for a portion of the fiscal year and funds for this Agreement are no longer available. The CITY or the DISTRICT will use reasonable efforts to give the other Party reasonable notice of termination in the event that funds will not be appropriated. No provision is made for the automatic extension or renewal of the term. 2.2 If the DISTRICT fails to install or construct any Improvement, which is deemed by the Parties to be mutually reasonably necessary for the CITY to adequately perform its maintenance obligations under this Agreement, the CITY may terminate this Agreement upon ninety (90) days’ advance written notice to the DISTRICT. For the purposes hereof, the Director may give notice to the Business Manager. SECTION 3. PERFORMANCE OF MAINTENANCE BY THE CITY 3.1 To the extent the authorized representatives of the Parties have not conferred at the commencement date of this Agreement, the authorized representatives of the Parties will meet with each other at a mutually acceptable location to identify the Facilities and discuss and coordinate the times and manner in which the orderly transition of the maintenance obligations will be put into effect. The authorized representatives shall meet regularly to review 130613 dm 00710215 5 the maintenance schedule for the Facilities. They will meet not less than once a year to discuss the use and maintenance of the Facilities. 3.2 Commencing on or about January 1, 2013, or thereafter, as practicable, the CITY will mow, trim, fertilize, and irrigate, and perform other maintenance work of a general nature at the Fields and Courts at the frequencies and times in accordance with the CITY’s Field Maintenance standards (Attachment G), adopted by the CITY for its own district and neighborhood parks and public recreation areas. The obligation of the CITY to perform Field Maintenance work is conditioned upon the functional condition and operation of the infrastructure of the Fields, including, without limitation, the underground water irrigation system, at the time such Maintenance is to commence. Any or all services required to maintain and renovate the Fields and irrigation systems may be performed by contractors hired and managed by the CITY. 3.3 In performing its Maintenance obligations the CITY will use its best efforts to prevent interference with the DISTRICT’s use of the Facilities during regular school hours. The CITY shall publish a Maintenance schedule six months in advance of any planned Maintenance activity and make that schedule known to the Business Manager for dissemination to the Schools involved. This schedule will be adhered to by the Schools and no school activities will be planned which would interfere with these Maintenance activities. All Maintenance activities will be performed between the hours of 6:00 a.m. and 4:00 p.m. on any day. The CITY will coordinate its scheduled Maintenance activities with the DISTRICT’s academic calendar for each of the Schools. The Business Manager and the Director will coordinate on the behalf of the parties. Standard or routine Maintenance work will be scheduled so as to be for a maximum of one day at a time; other Maintenance work will be coordinated between the Parties. 3.4 In the event of an emergency, including, without limitation, earthquakes, fires, flooding, or other events of force majeure, the CITY may perform non-scheduled Maintenance at any of the Facilities without prior notification to the DISTRICT. The CITY will give notice of any action it has taken in the event of an emergency within a reasonable time. In such event, the CITY will use its best efforts to provide the access to the affected Facilities for the DISTRICT. In the event of an emergency or off-hour maintenance issue the CITY’s staff will respond and take appropriate actions to make repairs or make safe any and all items until proper repairs can be made. In the event that CITY’s staff is unavailable or fails to respond, the DISTRICT’s staff will make temporary repairs or make safe all items until such time as the CITY can make final repairs. The CITY agrees that the DISTRICT’s staff time and materials will be reimbursed by the CITY. 3.5 With the exception of safety concerns, any concern of the DISTRICT about the general maintenance or use of the Facilities will be communicated to the Director by the Business Manager. 3.6 In undertaking the necessary turf and grounds Maintenance renovations, if scheduled six (6) months in advance, the CITY may curtail and preempt the DISTRICT’s use of up to one-half of any Field (or if mutually agreed upon, a full field) up to four (4) times during the 130613 dm 00710215 6 academic year for any single period not exceeding eight (8) consecutive weeks in duration for fields and four (4) consecutive weeks in duration for courts or as mutually agreed upon by the District and City. SECTION 4. PERFORMANCE OF MAINTENANCE BY THE DISTRICT 4.1 Any areas of the Facilities and all other areas of the Schools, including, without limitation, the turf, grounds, landscaped areas, buildings, parking lots, fences, sidewalks, and trees, not expressly identified in the exhibits or in this Agreement as areas to be maintained by the CITY will be maintained or cause to be maintained by the DISTRICT, at its sole cost and expense, in accordance with the DISTRICT’s standards. 4.2 Notwithstanding any Provision to the contrary, the DISTRICT, at its sole cost and expense, will provide or cause to be provided special preparation and maintenance services with respect to any of the Facilities to be used in connection with special events or other similar functions staged by the DISTRICT, including, without limitation, graduation ceremonies, athletic events, tennis tournaments, and other inter-scholastic activities. 4.3 The DISTRICT, at its sole cost and expense, will continuously provide services in connection with the removal of garbage, refuse, debris, rubbish, litter and other solid waste which have accumulated at the Facilities. The CITY shall be responsible for the removal of garbage, refuse, debris, rubbish, litter and other solid waste on the brokered facilities during the CITY’s time of use or events. 4.4 At all times during the term of this Agreement, the DISTRICT will timely notify the CITY of any condition of the Facilities and all other areas of the Schools, of which it has actual or constructive knowledge, which may constitute or present a danger or threat to person or property. The tender of such timely notice shall not compromise any Provision of indemnification set forth in Section 11. SECTION 5. PAYMENT OF COSTS OF MAINTENANCE 5.1 The allocable annual costs of Maintenance and water (plus equipment costs and salary and benefits costs, as appropriate) for the Facilities are estimated by the CITY to be the following: Year Maintenance 2013 $650,000 Costs shall be shared in the ratio of 50:50 between the CITY and the DISTRICT. 5.2 In lieu of billing and payment procedures to be adopted by the Parties under this Agreement, the Parties agree that the CITY will credit fifty percent (50%) of its actual costs 130613 dm 00710215 7 incurred in performing its Maintenance obligations under this Agreement against any and all monthly lease payments due and payable by the CITY under its lease agreement with the DISTRICT, entitled “Lease and Covenant Not to Develop”. SECTION 6. INSTALLATION OR CONSTRUCTION OF IMPROVENENTS 6.1 In nonemergency situations, the CITY will not install or construct, or cause to be installed or constructed, any Improvement at any of the Facilities without the express written approval of the Superintendent. To the extent an Improvement which is deemed by the CITY to be reasonably necessary to adequately perform its Maintenance obligations hereunder cannot be installed or constructed or cause to be installed or constructed by the DISTRICT, the CITY may undertake such installation or construction at the written request of the DISTRICT. Any Improvement installed or constructed by the CITY will be deemed the property of the DISTRICT. 6.2 The installation or construction of an Improvement in the event of an emergency may be conducted by the CITY in accordance with Section 3.4. SECTION 7. USAGE OF FACILITIES 7.1 In attempting to maximize the use of the Facilities by school students and the general public, the Director and the Business Manager may jointly adopt and promulgate and amend written rules and regulations governing the use of the Facilities. 7.2 The DISTRICT will have use priority of the elementary and middle school fields and tennis courts between the hours of 8:00 a.m. and 4:00 p.m. on scheduled school days. Use priority will be extended to interscholastic activities occurring at the Facilities until the completion of those scheduled activities, even if such activities are completed after 4:00 p.m. This priority will apply Mondays through Fridays of each week from September to mid-June of each academic year and Saturdays for the duration of any regularly scheduled inter-scholastic competition, provided, however, no priority will be extended to practice sessions for such competition. 7.3 The CITY will have use priority of the elementary and middle school fields, basketball courts and tennis courts after 4:00 p.m. on scheduled school days and at all other times, including weekends, holidays and summer vacation periods. Exceptions to this use priority schedule may be agreed upon, in writing, by the Director and the Business Manager. The CITY will cooperate with the DISTRICT in any manner which will afford the DISTRICT an adequate opportunity to use the Schools for its activities, programs and other needs. During the month of December the CITY shall give the DISTRICT a copy of the CITY’s maintenance schedule for the proceeding summer. The DISTRICT will then ensure that there are no activities, rental or otherwise for the entire summer session. 7.4 The CITY will administer public use reservations of the elementary and middle school fields, basketball courts and tennis courts in accordance with the CITY’s Field Use Policy, which will be provided to the DISTRICT. The CITY will be solely responsible for determining the 130613 dm 00710215 8 parameters of the use priority system, as well as rental or user fees to be charged to members of the general public, including individuals and organized groups, for the use of the Facilities during such times as the CITY may exercise use priority over the elementary and middle school playing fields and tennis courts. Such fees will conform to the Laws governing school grounds and those which are applicable to the CITY’s property. All fees for the use of the Facilities covered by this Agreement collected by the CITY will be equally shared, and will be accounted for in a manner as may be mutually acceptable to the parties. 7.5 Any person who leases a School building of the DISTRICT will be entitled, upon submission of a written request to the CITY, to use the Facilities in order to meet any special recreational needs. Any such request may be granted by the Director provided reasonable prior written notice of such need is given and the Director reasonably determines that such use will not unreasonably interfere with scheduled public recreational activities. The DISTRICT will not use or cause to be used at any of its facility any “jump house” or similar item on any turf area. 7.6 The City Manager shall be the representative of the CITY for all purposes under this Agreement. The Division Manager, Recreation, of the CITY’S Community Services Department is designated as the Project Manager for the City Manager, and shall supervise the progress and implementation of Facility brokering, and shall be assisted by the designee, the Program Supervisor. The Business Manager of the DISTRICT schools shall be the representative of the DISTRICT for all purposes under this Agreement, shall be designated as the Project Director, and shall have overall responsibility for the progress and implementation of this Agreement for the DISTRICT. 7.7 The CITY shall provide the following services under this Agreement: 7.7.1 Schedule, reserve and license the DISTRICT’S Facilities located at the Schools listed in Attachment A to individuals or groups for use by adult and youth athletic groups at such times and dates when school is not in session and school activities are not taking place (“Public Use”). The CITY shall be solely responsible for the coordination and scheduling of requests for the reservation and use of the Facilities for Public Use, subject to the DISTRICT’S prior approval, during the term of this Agreement. 7.7.2 Bill and collect all user fees for each Facility in accordance with the fee schedule, attached hereto as Attachment B. The Parties agree the user groups will be assessed fees as may be established by the CITY. Such fees will conform to the Laws governing school grounds and those applicable to the CITY’s property. The CITY shall retain sixty percent (60%) of the fees generated by this surcharge to defray the cost of coordinating youth group use of the Fields. 7.7.3 Issue a completed Field Use Application and Permit Form to each user, in the form of Attachment F, prior to such use of the Facility. 7.7.4 Monitor and enforce the use of the Facilities to determine whether such uses comply with conditions of the permits. If such use of a Facility does not comply with the 130613 dm 00710215 9 conditions of the particular permit or other applicable Laws, the CITY shall terminate the further use of the Facility by the user. 7.7.5 Upon request, provide the DISTRICT with one (1) copy of every permit issued for the use of the Facilities. 7.7.6 Provide the DISTRICT on or before October 1 (for the period July 1 to December 31 of the preceding calendar year and January 1 to June 30 of the current calendar year) with a financial report that accounts for the fees that the CITY has collected from the Athletic Field use under this Agreement during the preceding time period. 7.7.7 Notify the Facilities’ permit holders of the DISTRICT’S intended Facilities maintenance and improvement projects and of any Facilities closures that may become necessary to effect the construction of the projects. 7.8 The DISTRICT shall provide the following services under this Agreement: 7.8.1 Make the Facilities available to the CITY as set forth above for the purposes of scheduling, reservations and usage to private individuals or groups for public use. 7.8.2 All fees that the DISTRICT will receive under this Agreement will be used at the discretion of the DISTRICT. 7.9 The CITY shall not be responsible or liable for any Maintenance, repairs, or improvements of the Fields which are required to be performed, conducted, or constructed by the DISTRICT, and the DISTRICT shall not be responsible or liable for any Maintenance, repairs, or improvements of the Fields which are required to be performed, conducted or constructed by CITY. City shall be responsible for all repairs due to wear and tear during City activities. SECTION 8. LAWS TO BE OBSERVED 8.1 The Parties shall cooperate in procuring all permits and licenses, paying all charges and fees, and giving all notices which may be necessary and incidental to the due and lawful prosecution of the services to be performed under this Agreement. SECTION 9. FEES 9.1 In consideration of its use of the Facilities under this Agreement, the CITY will pay the DISTRICT forty percent (40%) of all fees that the CITY collects from the Facilities’ permit holders. The CITY shall make payments related to the Facilities usage to the DISTRICT on February 1 (for the period July 1 to December 31 of the preceding calendar year) of each year during the term of this Agreement. This obligation shall survive the expiration of this Agreement. 130613 dm 00710215 10 SECTION 10. ASSIGNMENT; SUBCONTRACTORS; EMPLOYEES 10.1 The Parties shall give their personal attention to the faithful performance of this Agreement and shall not assign, transfer, convey, or otherwise dispose of this Agreement or any right, title or interest in or to the same or any part thereof without the prior written consent of the other Party, and then only subject to such terms and conditions as the other Party may require. The consent to one assignment shall not be deemed to be consent to any subsequent assignment. Any assignment without such approval shall be void and, at the option of the other Party, shall terminate this Agreement and any license or privilege granted herein. This Agreement and any interest herein shall not be assignable by operation of law without the prior written consent of the other Party. 10.2 The DISTRICT shall be responsible for employing or engaging all persons necessary to perform the services of the DISTRICT hereunder. The CITY shall be responsible for employing or engaging all persons necessary to perform the services of the CITY hereunder. SECTION 11. INDEMNITY 11.1 The CITY shall protect, indemnify, defend, and hold harmless the DISTRICT, its employees, agents, and Board members from and against any demands, claims, liability or expense on account of suits, verdicts, judgments, costs or claims of any nature or kind arising out of, or in any way connected with, the CITY’s performance or nonperformance under this Agreement, including the CITY’s operations on, possession, use, management, alteration or control of the DISTRICT’s property under this Agreement except for any claims or liability, or portions thereof, arising from the concurrent or sole negligence or intentional malfeasance of the DISTRICT, its directors, officers, employees or agents. 11.2 The DISTRICT shall protect, indemnify, defend and hold harmless the CITY from and against any demands, claims, liability or expenses on account of suits, verdicts, judgments, costs or claims of any nature or kind arising out of, or in any way connected with, the DISTRICT’s performance or nonperformance under this Agreement, including the DISTRICT’s operations, possession, use, management, maintenance, improvement, renovation, repair, alteration or control of the DISTRICT’s property, including the Facilities, under this Agreement, except for any claims or liability, or portions thereof, arising from the concurrent or sole negligence or intentional malfeasance of the CITY, its directors, officers, employees or agents. SECTION 12. INSURANCE 12.1 The DISTRICT, at its sole cost and expense, will obtain and maintain, in full force and effect, during the term of this Agreement, commercial general liability insurance coverage described in Attachment C, in the amount of one million dollars ($1,000,000), insuring the Parties, and their officers, employees, and agents, and each of them, with respect to the DISTRICT’s participation and the services performed by the DISTRICT under this Agreement. Concurrently with the execution of this Agreement, a certificate of insurance will be filed with the CITY’s risk manager, and will contain the endorsements which state that the DISTRICT will 130613 dm 00710215 11 insure the Parties, and each of them, for any claims or liability arising from the DISTRICT’s participation and services performed hereunder, and will not be canceled by the insurer except after the filing with the CITY’s City Clerk thirty (30) days prior written notice of cancellation or alteration, and that the CITY is named as an additional insured under such policies required above or concerning the DISTRICT’s performance or lack of performance under this Agreement. 12.2 Certificates of the DISTRICT’s insurance, required by Section 12.1 hereof, shall be filed with the CITY, to the attention of the CITY’s Risk Manager, concurrently with the execution of this Agreement. The certificates shall be subject to the approval of the CITY’s Risk Manager and shall contain endorsements stating that said insurance will cover the DISTRICT and the CITY for any claims or liability arising from the DISTRICT’s participation, activities, and services performed under the Provisions. Current certificates of such insurance shall be kept on file at all times during the term of this Agreement with the City Clerk. 12.3 The CITY, at its sole cost and expense, will self-insure for general liability insurance coverage described in Attachment D, in the amount of one million dollars ($1,000,000), insuring the Parties, and their officers, employees, and agents, and each of them, with respect to the CITY’s participation and the services performed by the CITY under this Agreement. A letter regarding self-insurance or a certificate of insurance will be filed with the DISTRICT’s risk manager, and will contain the endorsements which state that the CITY will insure the Parties, and each of them, for any claims or liability arising from the CITY’s participation and services performed hereunder, and will not be canceled by the insurer except after the filing with the Superintendent thirty (30) days prior written notice of cancellation or alteration, and that the DISTRICT is named as an additional insured under the CITY’s self- insurance program. 12.4 The CITY shall provide the DISTRICT with written proof of the CITY’s self- insurance program, required by Section 12.3 hereof, concurrently with the execution of this Agreement. Proof of the self-insurance program shall be subject to approval by the DISTRICT’s Risk Manager and shall contain language stating that said insurance will cover the CITY and the DISTRICT for any claims or liability arising from the CITY’s participation, activities and services performed under the Provisions and will not be cancelled or altered by the CITY except after thirty (30) days’ prior written notice to the DISTRICT of such cancellation or alterations. The language shall also state that the DISTRICT is named as an additional insured under the CITY’s self-insurance program under Section 13.3 of this Agreement. SECTION 13. WAIVERS 13.1 The waiver by either party of any breach or violation of any terms, covenant, or condition of this Agreement or of any provision, ordinance, or law shall not be deemed to be a waiver of any other term, covenant, ordinance, or law or of any subsequent breach or violation of the same or of any other terms, covenant, condition, ordinance, or law. 130613 dm 00710215 12 SECTION 14. NOTICES 14.1 All notices, demands, requests, consents, approvals, or other communications required to be given will be in writing and may be delivered personally, or sent by the United States mail, postage prepaid by certified mail, or by private express delivery service, or by facsimile transmission, to the addresses set forth below or to any other address as may be noticed by a party: To CITY: Office of the City Clerk City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 Copy to: Director of Community Services 1305 Middlefield Road Palo Alto, CA 94301 To DISTRICT: Superintendent Palo Alto Unified School District 25 Churchill Avenue Palo Alto, CA 94306 SECTION 15. MISCELLANEOUS PROVISIONS 15.1 Time is of the essence. For the purposes of this Agreement, all times of the day are determined according to Pacific Time. 15.2 No party will be deemed in default on account of any delay or failure to perform its obligations under this Agreement, where the delay or failure is the direct result of an event of force majeure. For the purposes of this Agreement, the term “force majeure” will mean an event which is not within the reasonable control of a party claiming the existence of such event. 15.3 No Party will discriminate in the employment of persons engaged in the performance of this Agreement on account of race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of that person. The DISTRICT agrees to comply with the requirements of Chapter 2.30 of the Palo Alto Municipal Code pertaining to nondiscrimination in employment, including the completion and submission to the CITY of the Certification of Nondiscrimination, as described in Attachment E. 15.4 Any disputes regarding this Agreement will be resolved according to the Laws of the State of California. Any legal proceeding will be instituted in the courts of the State of California and County of Santa Clara, irrespective of any claim of diversity of citizenship or other possible jurisdictional conditions. 130613 dm 00710215 13 15.5 The prevailing party in any action brought to enforce the provisions of this Agreement or arising out of this Agreement may recover its reasonable costs and attorneys’ fees expended in connection with such an action from the other Party. 15.6 All attachments referred to in this Agreement and any addenda, appendices, exhibits, and schedules which, from time to time, may be referred to in any duly executed amendment hereto are by such reference incorporated in this Agreement and will be deemed to be part of this Agreement. 15.7 This Agreement constitutes the entire agreement between the Parties concerning its subject matter, and there are no other oral or written agreements between the parties not incorporated in this Agreement. 15.8 This Agreement will not be construed as nor deemed to be an agreement for the benefit of any third party or parties, and no third party or parties will have any right of action herein for any cause whatever. The terms, covenants, and conditions of this Agreement shall apply to, and shall bind, the heirs, successors, executors, administrators, assigns and subcontractors of each Party. 15.9 This Agreement may be amended only by a written instrument signed by both parties. The City Manager is duly authorized to negotiate and execute any amendment to this Agreement. 15.10 Any agreement, covenant, condition, clause, qualification, term, or other stipulation in this Agreement will define or otherwise control, establish, or limit the performance required of or permitted by any party. All provisions of this Agreement, whether covenants or conditions, will be deemed both covenants and conditions. // // // // // 130613 dm 00710215 14 15.11 This Agreement confers no legal or equitable rights until it is approved by the DISTRICTs Board of Trustees at a lawfully conducted public meeting. IN WITNESS WHEREOF, the Parties hereto by their duly authorized representatives have duly executed this Agreement as of the Effective Date. CITY OF PALO ALTO PALO ALTO UNIFIED SCHOOL DISTRICT _________________________________ ____________________________ Assistant City Manager President, Board of Education APPROVED AS TO FORM: APPROVED: _________________________________ ____________________________ Senior Asst. City Attorney Chief Business Official APPROVED: _________________________________ Director of Community Services _________________________________ Director of Administrative Services Attachments: ATTACHMENT A: List of District’s Athletic Fields, Basketball Courts and Tennis Courts ATTACHMENT B: Fee Schedule and Program ATTACHMENT C: District’s Insurance Coverage ATTACHMENT D: City’s Insurance Coverage ATTACHMENT E: Certificate of Non-discrimination ATTACHMENT F: Field Use Application and Permit Form ATTACHMENT G: City Maintenance Standards 130613 dm 00710215 15 ATTACHMENT A List of District’s Athletic Fields, Basketball Courts and Tennis Courts Athletic Fields Maintenance areas at each individual site (outlined in red) will be maintained in accordance with the City’s Field Maintenance standards below and in Attachment G. Areas with additional maintenance needs will be specified underneath each site. • Hazards must be reported immediately, unless they are rectified at the time of discovery. • Monthly turf edging is required. Weed control will be instituted, utilizing string trimmers and garden hoes. No herbicides are allowed. Weeds along fence lines, pathways, play equipment and ball diamonds must be controlled monthly. • Turf areas shall remain free of pot holes, bumpy or rough playing surfaces and low areas, where water might accumulate. Soil must be added in order to level these areas as often as needed. • Aeration to a depth of four (4) inches, utilizing solid tines, must be conducted three times annually. • School sites must be fertilized three times annually at a rate of 300 lbs. of fertilizer per acre, utilizing Turf supreme 16-6-8 fertilizer. All hard surfaces must be cleaned after a fertilizer application is completed and before the person(s) leave(s) the site. • Gas blowers are acceptable and are to be used to clean hardscape areas on an as-needed basis. Leaves and grass clippings must be removed upon accumulation on the turf as required by the CITY. • Routine tree maintenance will be maintained by the DISTRICT’s staff or its designated contractor. The CITY’s staff will only prune trees in the event that a tree limb poses a maintenance obstacle or a safety hazard. They (what does “they” refer to?)must also be raised if they interfere with the efficiency of the sprinkler system. 130613 dm 00710215 16 Addison School - 650 Addison Avenue, Palo Alto, CA 94301 The maintenance of the backstop and goal posts located on the turf are not the responsibility of the CITY. 130613 dm 00710215 17 Barron Park School - 800 Barron Avenue, Palo Alto, CA 94306 130613 dm 00710215 18 Briones School - 4100 Orme Street, Palo Alto, CA 94306 Southwest fence is part of maintenance area. Pruning is required twice annually. 130613 dm 00710215 19 Duveneck School - 705 Alester Street, Palo Alto, CA 94303 130613 dm 00710215 20 El Carmelo School - 3024 Bryant Street, Palo Alto, CA 94306 130613 dm 00710215 21 Escondido School - 890 Escondido, Stanford, CA 94305 Northeast fence is included in the maintenance area. Pruning is required twice annually. The maintenance of the benches tables, paved walkways and shade coverings are not the CITY’s responsibility. 130613 dm 00710215 22 Fairmeadow School - 500 East Meadow Drive, Palo Alto, CA 94306 130613 dm 00710215 23 Greendell School - 4120 Middlefield Road, Palo Alto, CA 94303 Southwest fence is part of maintenance area. Pruning is required twice annually. 130613 dm 00710215 24 Walter Hays School - 1525 Middlefield Road, Palo Alto, CA 94301 The maintenance of the long jump pit is not the CITY’s responsibility. 130613 dm 00710215 25 Hoover School – 445 East Charleston, Palo Alto, CA 94303 130613 dm 00710215 26 J.L. Stanford Middle School - 480 East Meadow Drive, Palo Alto, CA 94306 Tennis Courts (Cleaning service as part of Open Space, Parks & Golf Landscape Maintenance Contract) Six tennis courts The maintenance of the backstops and bleachers are not part of the CITY’s responsibility. 130613 dm 00710215 27 Jordan Middle School - 750 North California, Palo Alto, CA 94303 South-east fence is part of maintenance area. Pruning is required twice annually. Basketball and tennis Court (Cleaning service as part of Open Space, Parks & Golf Landscape Maintenance Contract) Jordan Middle School – 750 North California Avenue, Palo Alto, CA 94303 Six tennis courts The maintenance of the backstops and bleachers are not part of the CITY’s responsibility. 130613 dm 00710215 28 Nixon School - 1711 Stanford Avenue, Stanford, CA 94305 North fence is part of maintenance area. Pruning is required twice annually. The maintenance of the backstops is not part of the CITY’s responsibility. 130613 dm 00710215 29 Ohlone School - 950 Amarillo Avenue, Palo Alto, CA 94303 130613 dm 00710215 30 Palo Verde School - 3450 Louis Road, Palo Alto, CA 94306 130613 dm 00710215 31 Terman Middle School - 655 Arastradero Road, Palo Alto, CA 94306 Terman softball field and soccer fields 1 & 2 are in the maintenance area of this agreement. Basketball and tennis Court (Cleaning service as part of Open Space, Parks & Golf Landscape Maintenance Contract) Five basketball courts Two tennis courts Fencing around tennis courts, drinking fountain and park signage is under responsibility of the CITY. 130613 dm 00710215 32 Tennis Courts (Cleaning service as part of Open Space, Parks & Golf Landscape Maintenance Contract) Gunn High School – 780 Arastradero Road, Palo Alto, CA 94306 Six tennis courts Palo Alto High School – 50 Embarcadero Road, Palo Alto, CA 94301 Seven tennis courts 130613 dm 00710215 33 ATTACHMENT B Fee Schedule and Program Athletic Field Rentals 2013-2014**) Baseball Fields $7.50 - 75.00/hr.* Soccer Fields $7.50 - 75.00/hr.* Softball Fields $7.50 - 75.00/hr.* Lights $20.00/use Tennis Court Rentals Tennis Tournament Court Use Fee $3.00/hr./court Non-Profit $5.00/hr./court Resident $7.00/hr./court Nonresident * Athletic fields’ fees will be reduced by 50% for nonprofit users. Proof of nonprofit status will be required for fee reduction. However, there shall be no fee reduction if any fee or donation is required by the nonprofit organization permit holder in connection with the use of the permitted field or tennis court. ** Rates are subject to increase as long as they fall within the Municipal Fee Schedule Range. Facilities covered by these fees include: City Sites/Parks Palo Alto Unified School District Sites Terman Park All Elementary Schools -Open or Closed Jordan Middle School J.L. Stanford Middle School Palo Alto High School Tennis Courts Gunn High School Tennis Courts 130613 dm 00710215 34 ATTACHMENT C District’s Insurance Coverage See Sections 12.1 and 12.2 of the Agreement. 130613 dm 00710215 35 ATTACHMENT D City’s Insurance Coverage See Sections 12.3 and 12.4 of the Agreement. 130613 dm 00710215 36 ATTACHMENT E Certificate of Nondiscrimination As suppliers of goods or services to the City of Palo Alto, the firm and individuals listed below certify that they do not discriminate in employment of any person because of race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person; that they are in compliance with all Federal, State and local directives and executive orders regarding nondiscrimination in employment. 1. If the Person is an INDIVIDUAL, sign here: Date:______________ _____________________________________________ Proposer’s Signature _____________________________________________ Proposer’s typed name and title 2. If the Person is a PARTNERSHIP or a JOINT VENTURE, at least (2) Partners or each of the Joint Venturers shall sign here: ________________________________________________ Partnership or Joint Venture Name (type or print) Date:______________ _____________________________________________ Member of the Partnership or Joint Venture signature Date:______________ _____________________________________________ Member of the Partnership or Joint Venture signature 3. If the Person is a CORPORATION or OTHER ENTITY, the duly authorized officer(s) or member(s) shall sign as follows: The undersigned certify that they are respectively: ______________________________________ and _______________________________ Title Title / / / / / / 130613 dm 00710215 37 Of the corporation or other entity named below; that they are designated to sign the Proposal Cost Form or other document to which this certificate is attached by resolution (attach a certified copy, with corporate seal, if applicable, notarized as to its authenticity or Secretary’s certificate of authorization) for and on behalf of the below named CORPORATION or OTHER ENTITY, and that they are authorized to execute same for and on behalf of said CORPORATION or OTHER ENTITY. ________________________________________________________________ Corporation or Other Entity Name (type or print) By:______________________________________ Date: _________________ Title:__________________________________________ 130613 dm 00710215 38 ATTACHMENT F Field Use Application and Permit Form 130613 dm 00710215 39 130613 dm 00710215 40 ATTACHMENT G City Maintenance Standards City of Palo Alto Field maintenance standards PAUSD General Maintenance • Hazards must be reported immediately, unless they are rectified at the time of discovery. • Daily litter removal and emptying trash cans around the turf areas. • Monthly turf edging is required. Weed control will be instituted, utilizing string trimmers and garden hoes. No herbicides are allowed. Weeds along fence lines, pathways, play equipment and ball diamonds must be controlled monthly. • Gopher control must be completed before 7:30 AM whenever gopher activity is present in or adjacent to turf areas. Traps cannot be left unattended and must also be removed by 7:30 AM. • Gas blowers are acceptable and are to be used to clean hardscape areas on an as-needed basis. Leaves and grass clippings are to be removed upon accumulation on the turf as required by the CITY. • The turf must be mowed in accordance with the schedule developed by the CITY for the DISTRICT (see Mowing Schedule below). The turf areas must be mowed in a timely manner as to not interfere with the use of the lawn area by the students and to minimize the amount of noise, as practicable. • Aeration to a depth of four (4) inches, utilizing solid tines, must be conduct three times annually (May, August – prior to the start of the new school year, and again in November). This process must be scheduled at times, when it will not interfere with school activities. • School sites must be fertilized three times annually at a rate 300 lbs. of fertilizer per acre, utilizing Turf supreme 16-6-8 fertilizer. All hard surfaces must be cleaned after a fertilizer application is completed and before the person(s) leave(s) the site. • School sites will be over-seeded and mulched during the December Holiday period on an as- needed basis, access permitting. A blue/rye blend of 20/80 must be applied at a rate of 5 lbs. per 1,000 sq. ft. of area. The Elementary School sites shall be also seeded/mulched during the summer months between the middle of June and the end of August on an as-needed basis, access permitting. Hybrid Bermuda seed for sport fields shall be used during this application at a rate of 1 lb. per 1,000 sq. ft. of area. Low spots and pot holes will be filled prior to commencement of this procedure. 130613 dm 00710215 41 • Routine tree maintenance will be maintained by the DISTRICT’s staff or its designated contractor. The CITY’s staff will only prune trees in the event that a tree limb poses a maintenance obstacle or a safety hazard. The tree limbs must also be raised if they interfere with the efficiency of the sprinkler system. • Pruning is required two times annually for landscape along fences or growing through fencing onto the turf areas. This will include fencing that contains ivy. • Turf areas shall remain free of pot holes, bumpy or rough playing surfaces and low areas, where water might accumulate. Soil must be added in order to level these areas as often as needed. Mowing Schedule: Monday: Escondido, Nixon, Barron Park, Briones, Terman Tuesday: Palo Verde, El Carmelo, Greendell, Ohlone. Wednesday: Duveneck, Addison, Walter Hays, Jordan. Thursday: Fairmeadow, Hoover, J.L. Stanford.