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 CITY COUNCIL AGENDA ITEM NO. 07 



Meeting Date: November 26, 2002

Subject/Title: Approve joint-use agreement between City of Brentwood and Liberty Union High School District

Submitted by: Craig D. Bronzan, Director of Parks and Recreation

Approved by: John Stevenson, City Manager


RECOMMENDATION 
Approve agreement between the City of Brentwood and Liberty Union High School District relating to joint use of facilities.

PREVIOUS ACTION
This joint-use project was first approved by City Council as a part of the 1999/2004 Capital Improvement Program, with payments made over a three-year period starting with the 2000/2001 CIP budget. The gymnasium had an official dedication on November 22, 2002.

BACKGROUND
With the completion of the Liberty High School Gymnasium, staff has been working with the City Attorney and Liberty Union High School District staff to revise a master joint use agreement. The purpose is to establish a master agreement between the City and LUHSD that covers the legal aspects of the relationship that for the most part, will rarely require change. Exhibits are attached related to rules and regulations for use and when school district fees are finalized. These exhibits can then be updated on an as needed basis. Since the co-development of Bristow gymnasium and Edna Hill gymnasium, staff has found that it is the rules and regulations for use and fees that change on a regular basis, not the master agreement. As a result, changes can be provided through the update and approval process of exhibits.

The agreement is based on the City of Brentwood - Brentwood Union School District joint-use agreement that was approved by City Council on August 28, 2001. That agreement was based on the very successful City of Pleasanton joint use agreement that is a model for state-wide city/school joint use, which was brought to the City of Brentwood by our City Attorney, Dennis Beougher. Dennis has been very instrumental in negotiating with legal counsel of both school districts to insure the agreements meet the needs of the City.

The attached rules and regulations will provide for School and City use to get first priority of the facilities, followed by community use. The rules and regulations provide for regular meetings to schedule use, plan maintenance, and consider necessary equipment purchases.

FISCAL IMPACT
Fees for use of facilities during City sponsored programs, when charged, will be paid through participant fees/and or donations/sponsorships. As LUHSD is currently using the City of Brentwood Family Aquatic Complex at no charge, there will be no initial charge to the City for use of the new gymnasium. The agreement provides for the provision to meet annually to determine fees for use of facilities.
AGREEMENT BETWEEN
LIBERTY UNION HIGH SCHOOL DISTRICT
AND
CITY OF BRENTWOOD
RELATING TO JOINT USE OF LIBERTY UNION HIGH SCHOOL 
FACILITIES AND CITY OF BRENTWOOD FACILITIES


THIS AGREEMENT is made and entered into this 26th day of November, 2002 by and between the LIBERTY UNION HIGH SCHOOL DISTRICT, Contra Costa County, California, hereinafter referred to as “School District”, and the CITY OF BRENTWOOD, a municipal corporation, hereinafter referred to as “City”
WITNESSETH:
WHEREAS, Sections 10900 – 10914.5, inclusive of the Education Code of the State of California, authorize cities, counties and public school districts to organize, promote and conduct such programs of community recreation as will contribute to the attainment of general educational and recreational objectives for the children and adults of the State; and
WHEREAS, City owns, maintains and operates recreational facilities (“City Facilities”); and 
WHEREAS, School District owns, maintains and operates school grounds and facilities within the City (“School Facilities”); and
WHEREAS, City and School District recognize the public need for gymnasiums; multi-purpose rooms, sports fields, open space/playgrounds, and classrooms and desire to have input on the design of each others facilities to the extent they are covered under this Agreement and desire to use gymnasiums; multi-purpose rooms, sports fields, open space/playgrounds, and classroom facilities to be constructed on or adjacent to School District sites; and
WHEREAS, it is the mutual desire of City and School District to promote a program of community recreation in connection with the use of certain of these facilities; and
WHEREAS, the governing bodies of City and the School District may cooperate with each other to carry out the purposes of community recreation, and to that end may enter into an agreement with each other and may do any and all things necessary to aid and cooperate in carrying out the purposes of community recreation; and

WHEREAS, Sections 6500-6515 of the Government Code of the State of California authorize public agencies through their governing bodies to jointly exercise any power common to the contracting agencies.
NOW, THEREFORE, in consideration of the mutual promises set forth below, School District and City agree as follows:
1. School District and City shall cooperate in providing a community recreation program under the authority contained in Sections 10900 – 10914.5, inclusive, of the Education Code of the State of California, in connection with the licensed use of City Facilities and School District Facilities referred to in attached Exhibits hereto and in subsequent amendments to Exhibit. All parties shall comply with all regulations, ordinances and statutory requirements applicable to use of school facilities including, but not limited to Education Codes Sections 10911.5 and 45125.1.

2. City and School District shall each maintain, during the term of this Agreement, the following insurance:

a. Liability Insurance. City and School District shall each maintain liability insurance naming each other and its board officials, officers, directors, employees, agents, representatives and volunteers as additional insureds, with insurance limits not less than $1,000,000 for each occurrence of bodily injury, $1,000,000 for each occurrence of property damage, and with an aggregate coverage of not less than $2,000,000. Each party’s liability insurance shall include, without limitation, coverage for liability arising out of: (I) use of School District Facilities or City Facilities by the party or its agents, employees, representatives, or volunteers; (ii) the provision of services on District Facilities or School District Facilities by the party or its agents, employees, representatives, or volunteers; (iii) the acts or omissions of the party or its agents, employees, representatives or volunteers; and (iv) the performance by the party of the indemnity provisions of paragraph 7(A)(B) above. As an additional insured on each other’s policy, City and School District will provide insurance whereby there will be a thirty (30) day notice of cancellation mailed to the other.
b. Property Insurance: City shall maintain, at its sole cost and expense, property insurance (casualty, hazard and fire), which shall include replacement cost insurance in an amount sufficient to fully replace City Facilities and any improvements located on or appurtenant to City Facilities (100% placement cost). School District shall maintain, at its sole cost and expense, property insurance (casualty, hazard and fire), which shall include replacement cost insurance in an amount sufficient to fully replace School District Facilities or any improvements located on or appurtenant to School District Facilities (100% replacement cost). Property insurance shall not include earthquake insurance unless, during the course of this lease, such earthquake insurance is mandated by law. If mandated by law, earthquake insurance shall be in a sufficient amount to replace City Facilities and School District Facilities (100%) replacement cost.
c. Workers Compensation and Related Employee Insurance. To the extent required by the law, each party shall maintain workers compensation insurance and other insurance as required by law for its employees. 

3. The City and School District Facilities identified in attached Exhibits and amendments thereto, shall be made available to children and adults of the community, subject to the rules and regulations as adopted by both the City and School District.


4. At all times when either a School District or City Facility identified in attached Exhibits and amendments thereto is used by City, the School District or City Facility shall be under the supervision and control of the City, its agents and employees and administered and operated in accordance with all rules and regulations established by both the School District and the City attached hereto as attached Exhibits. If the attached rules and regulations do not address an issue, the stricter City or School District rule or regulation shall apply. City shall assume full responsibility for the scheduling, supervision and control of recreational activities conducted by City. City shall provide adequate and qualified recreational personnel to fulfill these responsibilities. All personnel employed in connection with the City’s use of the School District and City Facilities identified in attached Exhibits to this Agreement and any amendments thereto for recreational programs shall be deemed City employees or its agents. The hiring, supervision and discipline of all such personnel shall be the responsibility of City. 

5. At all times when either a School District or City facility identified in attached Exhibits and amendments thereto is used by School District, the School District or City facility shall be under the supervision and control of the School District, its agents and employees and administered and operated in accordance with all rules and regulations established by both the School District and the City which are attached hereto as attached Exhibits. If the attached rules and regulations do not address an issue, the stricter City or School District rule or regulation shall apply. School District shall assume full responsibility for the scheduling, supervision and control of educational or recreational activities conducted by School District. School District shall provide adequate and qualified recreational or educational personnel to fulfill these responsibilities. All personnel employed in connection with the School District’s use of the School District and City Facilities identified in attached Exhibits to this Agreement and any amendments thereto shall be deemed School District employees or its agents. The hiring, supervision and discipline of all such personnel shall be the responsibility of School District. 


6. For the City and School District Facilities identified in attached Exhibits and any amendments thereto, City and School District shall furnish recreational and educational apparatus and equipment according to the terms set forth herein in attached Exhibits. Such equipment shall remain the property of the party furnishing it. School District shall furnish and install on the School Facilities identified in attached Exhibits and any amendments thereto and City agrees to furnish and install on the City’s Facilities identified in attached Exhibits and any amendments thereto such recreational and educational apparatus and equipment as each deems appropriate for its own programs. City and School District each may, with the express written approval of the other party to this Agreement, furnish and install at its own expense, such additional recreational and educational apparatus as it deems required in connection with the performance of its recreational and educational programs pursuant to this Agreement in the other party’s Facilities as identified in attached Exhibits and any amendments thereto. Any such additional apparatus shall not interfere in any way with the ordinary use by the other party of the School District or City Facilities.

7. As authorized by Government Code Section 895.4, in connection with the use of School District and City Facilities identified in attached Exhibits and any amendments thereto to this Agreement:
(A) City shall indemnify, save and hold harmless School District, its officers, agents and employees against any and all claims, causes of action, suits, or judgments, including expenses incurred therewith for death or injury to persons, or loss of or damage to property, resulting from negligent or wilful acts of City, its officers, agents, employees or invitees in the performance of this Agreement. In the event of any such claims made, or suits filed, School District shall give City prompt written notice thereof, and the City shall have the right to defend or settle, with District’s written permission, the same to the extent of its interest hereunder

(B) School District shall indemnify, save and hold harmless City, its officers, agents, and employees, against any and all claims, causes of action, suits, or judgments, including expenses incurred therewith, for death or injury to persons or loss of, or damage to, property, resulting from negligent or wilful acts of School District, its officers, agents or employees in the performance of this Agreement. In the event of any such claims made or suits filed, City shall give School District proper notice thereof, and School District shall have the right to defend or settle the same to the extent of its interest hereunder.

8. School District and City shall allow access to the School District and City Facilities and the associated public parking facilities of School District and City for a reasonable time prior to and after the period of time the School District or City Facilities are scheduled for use by City or School District under this Agreement..

9. Each agency shall be responsible for clean-up of the Facilities and the associated public parking areas after use. Should either agency be required to assume custodial costs due to the other agency’s use of a facility, the costs may be billed to the responsible agency with sufficient information accompanying the billing to identify the reason for required service as identified in attached Exhibits. The invoice shall be paid with 30 days of service of the invoice. Each agency shall make full effort to promptly communicate information regarding clean-up problems noted to the other agency in an effort to improve housekeeping.

10. City and School District shall assume responsibility for damage occurring to the Facilities during their respective use and to notify the other agency of any damage noted during the next work day. Any such damage shall be promptly fixed by the agency that allowed the damage to occur unless the agency owning the facility decides to fix the damage itself and invoice the other agency for the cost to fix the damage.

11. This Agreement may be terminated with or without cause by either party upon 60 days written notice to the other.


12. City and School District release each other, and their respective authorized representatives, from any claims for damage to any person or to the premises and the buildings and other improvements on the premises that are caused by or result from risks insured against under any insurance policy carried by the parties and in force at the time of any such damage. All the insurance required pursuant to this Agreement shall contain an endorsement requiring thirty (30) days written notice from the insurance company to both parties before cancellation or change in the coverage, scope, or amount of any policy. Each policy, or a certificate of the policy, together with evidence of payment or premiums, shall be deposited with the other party at the commencement of the term; and on renewal of the policy not less than thirty (30) days before the expiration of the term of the policy.

13. Each party shall not, without the other party’s written consent, assign its rights or duties pursuant to this Agreement. City shall not enter into a sublease of any City Facility set forth in attached Exhibits or an amendment thereto without the express written consent of School District. Any City sublease entered into without the express written consent of School District shall upon School District’s request at any time be immediately terminated by City. Each party also agrees not to make any use of the School District and City Facilities set forth in attached Exhibits or an amendment thereto not in keeping with the purposes of this Agreement. 

14. This Agreement supersedes and replaces all previous agreements by and between the City and School District as they may pertain to the construction or use of the subject property, including but not limited to superseding the agreement entitled “The Agreement between the City of Brentwood and the Liberty Union High School District relating to the Joint Use of the Liberty Union High School Gymnasium Facility.”

15. The terms and conditions of this Agreement may be modified or changed only by written mutual consent of the parties.


16. Any notices that either party desires to or is required to give to the other party or any other person shall be in writing and either served personally or sent by prepaid first class mail. Such notices shall be addressed to the other party at the address set forth below. Either party may change its address by notifying the other party of the change of address. Notice shall be deemed communicated within seventy-two (72) hours from the date of mailing, if mailed as provided in this paragraph.

LIBERTY UNION HIGH SCHOOL DISTRICT CITY OF BRENTWOOD 
20 Oak Street 150 City Park Way
Brentwood, CA 94513 Brentwood, CA 94513
Attn: Attn:


17. This Agreement shall bind the successors and permitted assigns of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be 
executed on the date and year first above written.

LIBERTY UNION HIGH SCHOOL DISTRICT CITY OF BRENTWOOD

By: ________________________________ By: _________________________________
Daniel M. Smith, Superintendent John Stevenson, City Manager


Attest:

________________________________ ___________________________________
Richard K. Miller, Business Manager Karen Diaz, CMC
City Clerk

Approved As To Form:


________________________________ ___________________________________
District Legal Counsel Dennis Beougher, City Attorney









JOINT USE OF FACILITIES AGREEMENT
CITY OF BRENTWOOD
LIBERTY UNION HIGH SCHOOL DISTRICT

FACILITY RULES AND REGULATIONS


Whenever School District or City Facilities identified in attached Exhibits, or any amendments thereto, are used, these general rules and regulations, as established by the Liberty Union High School District and the City of Brentwood, as Joint Use Partners, shall be enforced. Failure to comply with these requirements, by City of School District, as applicable, or by outside user group or an individual member of an outside user group, shall result in the immediate termination of privileges to use and the immediate expulsion from the facility for that event.

General Rules and Regulations
A. Liberty Union High School District, its student body, faculty, personnel, and teams and the City of Brentwood Parks and Recreation Department shall have first priority use of their respective Facilities, in case of scheduling conflicts with an outside user group Liberty Union High School District, its student body, faculty, personnel, and teams and the City of Brentwood Parks and Recreation Department shall have first priority use of their respective Facilities. Notice shall be given to outside user group as soon as a conflict becomes apparent. Outside user groups agree that cancellations of outside user groups events due to these conflicts shall not create any liability or recourse against the Liberty Union High School District, the Board of Trustees, District employees , students and agents, the City of Brentwood or its Parks and Recreation Department and Agents.

B. Pursuant to California Education Code #38135 outside user groups using the Liberty Union High School District Facilities certify that they do not advocate the overthrow of the United States.

C. Liberty Union High School District may at any time deny or refuse to grant any application or cancel, without liability, any contract for the use of School District Facilities whenever the use, in the reasonable judgment of the Board or site personnel, presents or may present a clear and present danger to persons or property, or may be in violation of or contrary to applicable federal, state, or local law or ordinance.

D. School District Facility building capacity shall be posted and shall not exceed the 
capacity established by the California Safety Code.

E. All meetings and use of the School District Facilities shall be in the public interest and open to the public. A City of Brentwood Park and Recreation Department staff member must supervise any non-school event associated with Park and Recreation events in School District Facilities. All outside user groups shall be scheduled through the District for School District Facilities. A District staff member must supervise any non-City event. 

School District personnel shall monitor outside user groups’ events in School District Facility buildings. Any outside user group requesting the use of School District Facilities shall reimburse Liberty Union High School District for the cost of providing District personnel to monitor the building during the entire event.

As a condition of use of the School District Facilities and City Facilities, outside user groups must provide, at their sole cost and expense, each of the following items:

• Proof of insurance, comprised of certificates of insurance and original endorsements of comprehensive general liability insurance, written by insurance companies licensed to do business in California and satisfactory to the District for the entire duration of the event.
• The City and the District, and their board officials, officers, directors, employees, agents, representatives and volunteers shall be named as additional insured, with insurance limits not less than $1,000,000 for each occurrence of bodily injury, $1,000,000 for each occurrence of personal injury, $1,000,000 for each occurrence of property damage, and an aggregate coverage of not less than $3,000,000. Each outside user group’s liability insurance shall include, without limitation, coverage for liability arising out of: (i) use of School District Facilities or City Facilities by the group or its agents, employees, representative, or volunteers; (ii) the provision of services on District Facilities or School District Facilities by the group or its agents, employees, representatives, or volunteers, and (iii) the acts or omissions of the group or its agents, employees, representatives or volunteers. The outside user group will provide insurance whereby there shall be a thirty (30) day notice of cancellation mailed to the District and the City.

• Include liability coverage for claims made by participants in the event or by other third parties arising out of the event .

• Include liability coverage for claims made by participants in the event or by other third parties ariging out of the event.

• All exclusions pertaining to athletic or recreational events must be disclosed in the endorsement.


• The liability coverage provided by the outside user group is PRIMARY with respect to the additional insured named above. Any other insurance available to the District and City, and their board officials, officers, directors, employees, agents, representatives and volunteers shall be excess and non-contributing.

• The outside user group must provide the City (in the event of use of City Facilities), or School District (in the event of use of School District Facilities) with copies of the certificates of insurance and endorsements at least 14 calendar days prior to the start of the event.

• An indemnity and hold harmless agreement, satisfactory to the City (in the event of use of City Facilities) or School District (in the event of use of School District Facilities), must be signed by the outside user group and delivered to the City (in the event of use of City Facilities) or School District (in the event of use of School District Facilities) at least 14calendar days prior to the start of the event.

It is necessary to present in writing all set-up needs, clean-up needs and use of other 
facilities/services to City or School District staff, as the case may be, at least 14 calendar days prior to the event. Arrangements must be made with the staff at least 14 calendar days prior to the event for any equipment to be delivered, arranging for times and use of the delivery entrance.

Facilities must be cleaned after each use to School District or City’s satisfaction, as applicable. City may perform cleaning with their staff to meet District standards. District custodial service shall be present during all outside user groups’ events in School District Facilities and shall perform all required cleaning. Cost of custodial service shall be billed to the user group at the prevailing rate for City or School District as applicable.

District and/or City reserves the right to request personal identification of any and all participants upon entrance into facilities.

Requests for use of the facilities by non-School/non-City agencies will be permitted up to 3 months in advance of the request and not for more than 3 consecutive months.

No food, concession or merchandise items will be offered for sale on the facility grounds without prior written approval from the School District or City as applicable at least 14 calendar days prior to the event. A request to sell items must include (as is appropriate): proposed gate fee; items proposed for sale, including price per item; and/or other for sale/donation items.

The City of Brentwood and/or Liberty Union High School District reserve the right to approve items for sale with a percentage to be shared with the City/School District.


Superintendent of Liberty Union High School District, Director of Facilities and Planning of Liberty Union High School District, the City Manager, Chief of Police, Director of Parks and Recreation, or their designated representatives shall have the right to: enter the facility or any part thereof at all times during the period covered by the use; and to control use of the facility for the safety and welfare of the users and general public. Any use that violates these conditions of rental may cause the rental use to be terminated with forfeiture of all fees.

The parties to the agreement will charge nonprofit organizations an amount not to exceed the School District’s direct costs for the intended use. Direct costs includs supplies, utilities, janitorial services, services of other School District or city employees and salaries paid to School District or city employees necessitated by the organization’s use of School Facilities.

For-profit organizations or private party renters will be charged pursuant to the established fee schedule. Groups shall be charged fair rental value when using School Facilities or grounds for entertainment or meetings. Fair rental value means the direct costs to the School District or City, plus the amoritzed costs of the facilities or grounds used for the duration of the activity authorized.

The fee schedule shall be revised annually with consideration to the consumer price index.

Renters are required to sign a building maintenance checklist that indicates the condition of the building as the renter accepts it. This checklist will be co-signed by the assigned City of Brentwood or School District supervisor. The damage deposit is refundable; less damage costs, and will be mailed approximately two (2) weeks after the event.

Any changes to the rental agreement can be made up to 14 days prior to the event with City or School District written approval as applicable.

If the activity is canceled with a minimum of 14-calendar day’s notice, a $25.00 cancellation fee will be deducted from the deposit/rental fee. If less than fourteen (14) calendar days is given, 1/4th of the rental fee, or $25, whichever is greater, will be retained. Refundable fees/deposits will be mailed to the individual whose name and address appears on the application.

All decorations in School District Facilities must have prior approval in writing from the Liberty Union High School District and will be subject to a damage deposit. The use of tacks, pins, nails, staples, or any type of tape is not permitted on the walls, ceiling, or light fixtures. No candles or other lit items are permitted.

Decorations must be flame proof and approved by the School District’s Director of Facilities and Planning and Maintenance and Operations.


Confetti is not allowed in the facility at any time – no exceptions. Violation of this will result in a $100 fine deducted from the deposit/rental.

No property and/or equipment belonging to the City of Brentwood or Liberty Union High School District is to be removed from the facility.

All fees, rules, and regulations and policies are subject to change.


Outside User Group Rules and Regulations

Tennis or basketball shoes only on the gym floor. 

No food or beverages allowed in the gymnasium or restrooms.

No smoking or tobacco related material in facility or on school grounds.

No pets inside the building except guide dogs for the visually impaired.

No radio/music players are allowed in the building except with written permission by the Liberty Union High School District prior to the event.

Sound System - only Liberty Union High School District or Park and Recreation Department technicians shall operate the sound systems.

Jewelry/watches are not to be worn in games on the courts of play. 

Staff/patrons are responsible for personal property. The City of Brentwood and Liberty Union High School District are not responsible for staff/patron personal items left in the gym, office area, rest rooms or surrounding area.

No heavy equipment, furniture or the like, is to be slid across the gym floor at any time. 

Loitering in and/or around the building is prohibited.

No alcoholic beverages or controlled substances allowed in the facility, parking lot or school grounds.

No roughhousing in the gymnasium.

All users of the facilities will be held accountable to insure the facility is used in a responsible manner for the safety and welfare of the participants, spectators, and exposure of the facility to damage.

City/School Rules and Regulations For Joint Use Partners

The City of Brentwood Parks and Recreation Department shall schedule no events in the new gymnasium on Tuesdays or Fridays except during summer break unless approved in writing by the Liberty Union High School District.

Liberty Union High School District’s scheduled events must end by 6:15 p.m. unless
otherwise agreed to in writing by the Liberty Union High School District and the Parks and Recreation Department.

Should the Liberty Union High School District require the use of the new gymnasium after 6:15 p.m. other than Tuesday and Friday, they will make reasonable attempts to make the existing Stonebarger Gymnasium available to the City of Brentwood Parks and Recreation Department as an alternate.

The City of Brentwood Director of Parks and Recreation and the Liberty Union High
School District Superintendent shall appoint representatives of each agency to meet no later than June 30th of each year to go over the calendar for up coming year. These representatives shall also meet in September, December, and March to revise the schedule as needed. These representatives shall provide a recommended yearly schedule to the Director and Superintendent for final approval.

Representatives will be appointed from each agency to represent the maintenance
division of the City and Liberty Union High School District to meet in January and June of each year to establish yearly scheduled maintenance of the facilities for minimum interruption of programs and activities.

Representatives shall be appointed from each agency to meet in January of each year
to determine equipment needs for the coming fiscal year (July – June).

Should the appointing staff be unable to resolve conflicts in scheduling or maintenance,
the final approval authority shall rest with the Director of Parks and Recreation and the Liberty Union High School District Superintendent for their own facilities.

The City of Brentwood Parks and Recreation department programs will abide to the standards for appropriate use of the School District Facilities and shall leave School District Facilities ready for scheduled events.

Areas of policy not covered by such rules and regulations will be left up to the discretion of the Director of Parks and Recreation, or his/her designee, with consent of the Superintendent of Liberty Union High School District or his/her designee and vice versa with School District Facilities.

Fees shall be jointly adopted on a yearly basis with a set aside for ongoing
maintenance/repair/replacement.
Fees are charged from the time the facility is opened to the time the facility is cleaned up.

Fees include gym supervisor and custodial supervisor as assigned.

Fees are due and payable at the time of reservation.

Damage deposits may be charged at the discretion of the Liberty Union High School
District.

The City of Brentwood and Liberty Union High School District shall meet annually to determine fees for use of facilities.

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov