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CITY COUNCIL AGENDA ITEM NO. 23

Meeting Date: January 13, 2004

Subject/Title: Authorize the City Manager to enter into an agreement with the Liberty Union High School District for the joint use projects at Heritage High School of a 50-meter pool, gymnasium, and office-storage space

Submitted by: Craig D. Bronzan, Director of Parks and Recreation
Dennis Beougher, City Attorney

Approved by: John Stevenson, City Manager

RECOMMENDATION
Authorize the City Manager to memorialize a formal agreement with Liberty Union High School District for joint use projects at Heritage High School, which include a 50-meter pool, gymnasium, and office-storage space.

PREVIOUS ACTION
At the April 9, 2002 CIP workshop, staff was directed to return in 30 days to discuss ways the City of Brentwood and Liberty Union High School District (LUHSD) may be able to work together on the pool and gymnasium at Heritage High School. At the May 14, 2002, City Council meeting, staff requested this item be brought back for consideration at the May 28, 2002, City Council meeting. At the May 28, 2002 City Council meeting, staff requested permission to bring the item back on June 11, 2002. On June 11, 2002, City Council approved funding of $208,800 for design of 50-meter pool/gym office and storage space in conjunction with a 25-yard design paid by LUSHD, with reconsideration of approval of funding the entire project in August. City Council approved funding of $2,500,000 for the Heritage High School joint use projects on August 27, 2002.

BACKGROUND
As a part of the April 9, 2002 CIP workshop, staff reported on two joint use projects with Liberty Union High School District that were listed in the proposed 2002/2007 CIP program as unfunded: development of a 50 meter pool; and construction of an office/storage space in the joint-use gymnasium. As these projects were unfunded, staff had requested time to work on options that could be considered by City Council. Dan Smith, LUHSD Superintendent indicated that a decision would need to be made in 30 days as LUHSD was at a point where they needed to give specific direction to their architect as to a final design. Staff was directed to return in 30 days (May 14th City Council meeting) to discuss options.

City of Brentwood and LUHSD staff developed options for consideration that would keep the joint use projects under consideration. Staff heard very clearly from City Council that there was support for joint use projects as long as those projects did not come at the expense of existing funded City of Brentwood park projects. There was also concern expressed by City Council as to the state of the current economy and whether commitments to LUHSD would come at the expense of other City projects. As a result, staff looked at options that would work within both of these parameters.

Staff concentrated on an option that would direct the architect to provide parallel designs: one for a 25-yard pool and one for a 50-meter pool. As Heritage High School was not scheduled to go out to bid until spring of 2003, there was no necessity to determine exact funding or long-term commitment until development of the 2003/2008 CIP.

Staff requested and received a cost estimate from the architect for these two designs. The cost for design of the 50-meter pool was $208,800. City Council approved moving forward with this design work at the June 11th City Council meeting. One half of the design fee was to be credited back to the City against funding for the project. At the time of approval, the architect indicated that if the City of Brentwood could decide for sure that they will fund the project by August 2002, then the architects would be able to consolidate designs and the cost to the City of Brentwood for the 50-meter pool would only be approximately $97,440. City Council approved funding for the project at the August 27, 2002, City Council meeting and the City has paid $97,436.65 to date.

The August 27, 2002 City Council action of approval provided for reimbursement with LUHSD as follows:

• City includes the pool and gym office in the City’s CIP program of $2,500,000.
• The City of Brentwood and LUHSD agree to the following financial plan:
1. LUHSD will provide the cash flow to bid and construct the 50-meter pool/gym office/storage space.
2. As “good year”* money is available in the City’s CIP program, it will be committed in July by the City by the following formula:
 July 2003 – 25% of 2002/2003 good year revenue
 July 2004 – 50% of 2003/2004 good year revenue
 July 2005 – 50% of 2004/2005 good year revenue
 July 2006 – 50% of 2005/2006 good year revenue
 July 2007 – 75% of 2006/2007 good year revenue
 July 2008 – 75% of 2007/2008 good year revenue
”good year”* revenue is money received in excess of the City of Brentwood’s conservative estimate of revenue received from Park Development fees as set by the Director of Finance and Information Services.
• If the City has not met its financial commitment by the end of the 2007/2008 CIP program, then the City will complete its commitment using other funds, by July 2009.
• The City and LUHSD will develop a long-term use agreement that guarantees City sponsored use of the joint use facilities.

These approved guiding principals provide LUHSD the framework to know that the City of Brentwood will pay for the joint use project while making sure that no funded park projects in the approved CIP program are at risk. By sharing only “good year” revenue, it allows for City and the joint use projects to be added when the conservative estimate of revenue are exceeded.

City Council action is needed to allow the City Manager to enter into a formal agreement to memorialize the guiding principles with the Liberty High School District.

FISCAL IMPACT
Future payments will be made out of “good year” revenue from the City Park Development account as spelled out in the agreement.

Attachment:
Draft Agreement


AGREEMENT CONCERNING
JOINT USE PROJECT—HERITAGE HIGH SCHOOL
50 METER POOL/GYMNASIUM/OFFICE-STORAGE SPACE


THIS AGREEMENT CONCERNING JOINT USE PROJECT—HERITAGE HIGH SCHOOL 50 METER POOL/GYMNASIUM/OFFICE-STORAGE SPACE (“Agreement”) is entered into at Brentwood, California, this ____th day of _____________, 2004, by and between the CITY OF BRENTWOOD, a municipal corporation (“City”) and LIBERTY UNION HIGH SCHOOL DISTRICT ("School"), a ________

A. The City and School District have considered the various benefits to each party and agree that both will benefit from a joint use of a new 50 Meter Pool, office and storage space, and a gymnasium to be constructed by School at the School’s Heritage High School campus (“Joint Uses”): and

B. City expects to receive as a result of this agreement such benefits, but not limited to, increased public use of the Joint Uses particularly when the School does not have a planned activity and joint use programs between the two public entities; and
.
C. The City approved a funding commitment for the Joint Uses at its August 27, 2002 meeting subject to the School’s understanding and agreement that the City would agree to fund the Joint Uses only if no funded City park project in the City’s current Capital Improvement Program would not be put at risk not to be constructed due to payments to Joint Uses and that the City’s funding shall only come from “good year” revenue” as determined at the sole discretion of the City Council prior to July, 2009; and

NOW, THEREFORE, it is agreed as follows:

Section 1. Improvements.

The School agrees to design, bid, construct, and install a 50 meter pool, office for City use, and a gymnasium, pursuant to plans and specifications approved by the School. Upon the Joint Uses completion, School shall own the Joint Uses after the Joint Uses are accepted by the School’s Board. Thereafter, City and School District shall have the right to use the Improvements and the right to reimbursement for the Reimbursable Costs for the Improvements, as provided herein. City and School agree to develop a long term agreement that guarantees City sponsored use of the Joint Uses, similar in terms and provisions to an existing Joint Use Agreement for gymnasium use previously executed by the parties.

The School shall provide the cash for the Joint Uses with City reimbursement to be invoiced by School after acceptance by School Board or City’s Parks and Recreation Director acknowledges that the work has been completed and payment is acceptable.

Section 2. Reimbursable Costs.

The City agrees to pay $97,436.65 for the 50-meter pool/gym office and storage space in conjunction with the School’s previous 25-yard pool design. School will credit the $97,436.65 design fees paid by the City for the Joint Uses.

The City has included the Joint Uses in its Capital Improvement Program in the amount of $2,500,000.

Section 3. City’s Financial Plan

For purposes of this Agreement, good year revenue shall be defined as funds received from developement for Park and Trail Fee by the City over the projected Park and Trail Fee revenues published in the City’s Annual Capital Improvement Program Budget in any given fiscal year. The City’s Director of Finance and Information Services in her sole discretion shall make the final determination of what amount is “good year revenue” in July of each calendar year.

As “good year revenue” is availabe, The City and School agree to the City’s financial and reimbursement plan as follows:

July 2003-- 25% of the the 2002-2003 good year revenue;
July 2004--50% of the 2003/2004 good year revenue
July 2005—50% of the 2004/2005 good year revenue
July 2006—50% of the 2005/2006 good year revenue
July 2007—75% of the 2006/2007 good year revenue
July 2008—75% of the 2007/2008 good year revenue

Notwithstanding the above financial plan, the city shall not pay more than $2,500,000 to the School for Joint Uses and agrees to pay no later than July 31, 2009 the total amount due and owing to the School for the Joint Uses.

Section 4. Indemnity and Insurance.

School shall defend, indemnify and hold City, its elected officials, officers, employees, and agents free and harmless from any and all liability from loss, damage, or injury to or death of persons or property in any manner arising out of or incident to City’s performance of this Agreement, including without limitation all consequential damages, attorney’s fees and court costs, whether or not resulting from the negligence of School or School’s agents. This indemnity shall extend to any claims arising because School has failed to properly secure any necessary easements, land rights, appropriate wages, contracts, and approvals, but shall not extend to any claims arising of the sole negligence or willful acts of the City.

School shall require all persons, contractors, and subcontractors doing work on the Improvements to obtain and maintain insurance of the types and in the amounts normally required by the School for its public works projects.

Section 5. Applicable Laws.

School shall insure that all work performed on the Joint Uses is performed in a manner which complies with all applicable federal, state, county and local governmental laws, regulations, and rules, including all rules and regulations of the City, as these rules and regulations may be modified or changed from time to time. All work performed on the Joint Uses shall be done only by contractors licensed in the State of California and currently qualified to perform the type of work required.

Section 6. Disputes.

A final action or decision of the City Council and School Board shall be required before legal action pursuant to this Agreement may be instituted by either party or an arbitrator requested. Notwithstanding the foregoing, either party may, in addition to any other rights or remedies, institute legal action to cure, correct or remedy any default, enforce any covenant or agreement herein, enjoin any threatened or attempted violation or enforce by specific performance the obligations and rights of the parties hereto, subject to the terms of this Agreement.

Section 7. Costs and Attorney's Fees.

Attorney fees in an amount not exceeding $85 per hour per attorney, and in total amount not exceeding $5000, shall be recoverable as costs (by the filing of a cost bill) by the prevailing party in any action or actions to enforce the provisions of the agreement. The above $5000 limit is the total of attorneys’ fees recoverable whether in the trial court, appellate court, or otherwise, and regardless of the number of attorneys, trials, appeals, or actions. It is the intent of this agreement that neither party shall have to pay the other more than $5000 for attorneys’ fees arising out of an action, or actions to enforce the provisions of this agreement.

Section 8. Arbitration.

Upon agreement of the parties, any dispute or claim arising out of or relating to this agreement may be settled by arbitration in accordance with the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The costs of arbitration shall be borne equally by the parties.

THIS AGREEMENT is executed as of the date and year first above written.

CITY OF BRENTWOOD

By:
John Stevenson , City Manager
Attest:

Karen Diaz, CMC, City Clerk

Approved as to form:

Dennis Beougher, City Attorney
LIBERTY UNION HIGH
SCHOOL DISTRICT

By:
Dan Smith,
Superintendent
 

City Administration
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