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HomeMy WebLinkAboutUkiah Unified School District (UUSD) 2021-02-12 COU No. 2021-148 CITY OF UKIAH AND UKIAH UNIFIED SCHOOL DISTRICT AGREEMENT FOR THE CONSTRUCTION, OPERATION, AND MAINTENANCE OF THE HEALTHY UKIAH SPORTS CENTER This Agreement ("Agreement") between the City of Ukiah ("City"), a California general law city ("City"), and the Ukiah Unified School District ("UUSD" or "District"), a political subdi- vision of the State of California, is made and entered this 12th day of February, 2021 ("Effective Date"), by and between the City and UUSD for the construction, operation, and maintenance of the Healthy Ukiah Sports Complex ("HUSC"), to be located at 400 Oak Manor Drive, Ukiah, California. Individually, City and UUSD may be referred to as a "Party" and collectively as "Parties." The Healthy Ukiah Sports Complex ("HUSC") is an innovative partnership between the City of Ukiah and Ukiah Unified School District to maximize limited available space to create a facility prioritizing fitness activities for the youth in our community. Recitals A. Under an Agreement for Joint Use of Facilities dated October 30, 2014, the City and UUSD have established a mutually beneficial agreement to allow for shared use of property. The long term success of that agreement, and its predecessors that date back to 1979, demonstrates the commitment the two parties share to- wards the common goal of providing recreation resources to our community. B. Section 10910 of the Education Code provides that the governing body of any school district may use, or grant the use of, grounds of the school district to any other public authority for the purpose of joint use, whenever such use does not interfere with school uses. C. The City of Ukiah is experienced in applying to the California State Parks and Rec- reation funding programs and has successfully implemented past projects. With a critical lack of available developable space, the UUSD partnership with the City will make this project possible. D. The City and the UUSD desire to take advantage of the City's experience in project construction, recreation/leisure programming and facility management to ensure responsibility for the HUSC operations, including its financial performance and maintenance. E. The City and UUSD commit to work together in the spirit of partnership for the success of the HUSC, subject to the terms and conditions of this Agreement, and to deal with each other with fairness, respect, cooperation, and good faith in the operation of the HUSC and performance of this Agreement. F. The City and UUSD commit to entering into a coordination agreement for the de- sign and construction of the HUSC to include, without limitation, that all plans for the facility will be Field Act compliant and if required, approved by the Division of the State Architect (DSA); a DSA-approved Inspector of Record (IOR) must be hired by the City, and the IOR must provide all required inspection services and sign-offs; anyone associated with the design and construction of the facilities on the Oak Manor Elementary School campus during school hours must be finger- printed in advance at the vendor/contractor's or City's expense. G. Operational use for UUSD will be as provided in Section 13 of this Agreement. The Parties agree with State Parks in encouraging healthy communities by connecting people to recreational opportunities and see the HUSC project as a vehicle for reaching that goal. NOW, THEREFORE, the parties agree as follows: Agreement 1. Parties to the Agreement. The City of Ukiah, with its principal contact for purposes of this Agreement as follows: City Manager City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 Phone: 707-463-6221 Fax: 707-463-6740 The Ukiah Unified School District, with its principal contact for purposes of this Agree- ment as follows: Chief Business Official Ukiah Unified School District 511 S. Orchard Avenue Ukiah, CA 95482 Phone: 707-472-5011 Fax: 707-463-2120 2. Term. The term of this Agreement shall commence on February 12 , 2021 and be in effect for thirty-one (31) years, until midnight on February 11 , 2052. Upon expiration of the term for this Agreement, the site control for the project will revert to UUSD, while all other elements of the agreement will continue in effect unless the parties mutually agree to terminate or modify the agreement. 3. Management and Staffing. 3.1 City and UUSD agree to negotiate and execute a coordination agreement for the design and construction of the HUSC. 3.2 City and UUSD agree to cooperatively manage and operate the HUSC as a successful sports center for the benefit of the public. The City shall be responsible for overseeing all HUSC operations. The City Manager, or his designee, shall have operational authority for the manage- ment and operation of the HUSC. The duties and responsibilities shall include, but not be limited to: a. Managing the HUSC so that it is developed and maintained as a successful sports center. b. Managing rentals and use of the facility. c. Preparing and administering the annual budget for operation of the HUSC. d. Overseeing a Capital Improvement Program in partnership with UUSD. Both parties can request to meet and confer regarding the agreement at any time and modifications may be made by amendment as deemed necessary by both parties. Such amendments must be approved by action of the City Council and UUSD School Board. 4. Grounds and Facilities. The UUSD shall retain all of its rights, title and interest, as such may appear, in the grounds, buildings, structures, all other improvements, and equipment comprising the HUSC. Exhibit A, attached hereto, contains a description of said grounds, buildings, structures, other improvements and equipment. As items are added to or removed from the HUSC, Exhibit A shall be revised. Each such revision shall be dated and approved and signed by the City Manager and UUSD Chief Business Official. 5. Utilities. The City and UUSD will share equally the costs of utilities with a 50/50 split. Utilities includes all utilities connected to and used by the HUSC, including but not limited to, water, sewer, electric, solid waste collection, natural gas, and communications, such as telephone, cable TV, and internet service. 6. Routine Cleaning and Custodial Service and Supplies. Routine cleaning for the building facility will be provided after use by either party. Each party will provide its own custodial services after use. Custodial services include cleaning of restrooms and floors, removal of trash, and minor maintenance activities. UUSD will provide all needed supplies; cost for supplies will be shared in a 50/50 split. 7. Maintenance. City and UUSD will share in larger monthly and quarterly maintenance activities that fall below a Capital Improvement Program threshold. These may include but are not limited to HVAC maintenance, gym equipment maintenance, and deep cleaning of outdoor facilities. Costs for maintenance activities and supplies will be shared equally with a 50/50 split. Maintenance activities will be overseen and administered by UUSD and the City will utilize the established work order system to identify areas of concern. 8. Outdoor Facilities and Grounds UUSD will provide maintenance activities for the outdoor amenities and grounds as part of their normal school grounds routine. Any maintenance activity expense needed that is above the Capital Improvement Program threshold will be discussed jointly and any costs will be shared in a 50/50 split. 9. Building Security The building will be required to have, at a minimum, a security camera system, fire alarm system and key monitoring system. The parties anticipate that the cost for the systems installations will be included in the budget for construction and that on-going monitoring will be shared in a 50/50 split. The key system will be coordinated to the existing Oak Manor School site system and administered by the UUSD. UUSD will issue the City access keys. The City will track any keys issued to the City and if adequate key logs are not kept this activity will be revoked and transferred to UUSD. 10.Budget and Funding. The City will budget for the HUSC as part of the Community Services Department budget. UUSD will bill the City quarterly for the appropriate share of the facility ex- penses. 11.Capital Improvement Program Both the City and UUSD shall contribute annually to a dedicated Capital Improvement Program (CIP) fund to be held in a reserve account at the City of Ukiah. The City will bill the UUSD annually for the CIP contribution and provide an annual report to UUSD demonstrating the fund balance. Each party will make an initial contribution of 0.5% of the construction cost followed by an annual contribution of $10,000 multiplied by the Department of General Services' Construction Cost Index. Parties shall meet and confer as necessary to evaluate evolving costs and the need for adjustments to CIP contributions. CIP funds may be expensed if a project or repair is over $10,000, however each ex- pense must be evaluated and agreed upon by both parties. CIP funds are to be tied to the facility and move with the facility to whomever has site control. 12.Programming and Pricing. The City will be fully responsible for setting pricing to include all facility rates, rentals and usage fees, and will evaluate the rates on an annual basis. 13.Reserved Uses. 13.1 Facility use for the UUSD will be dedicated to the UUSD during school hours which begin at 7:30am and conclude at 6:OOpm A. UUSD shall have exclusive use of the gymnasium the first week of the regular in- structional school year through the last week of the regular instructional school year, Monday through Friday (excluding school calendar holidays), during the normal hours of Oak Manor Elementary School and Afterschool Program times (normally 7:30am — 6pm). B. Subject to mutual agreement by UUSD and City, the District shall be entitled to schedule additional uses up to 6 times per year. These are deemed "priority" uses and will be scheduled in advance of all other activities including CITY pro- gramming. C. District shall be entitled to a "right of first refusal" should City wish to schedule third party activities at the facility during non-District times. D. CITY and UUSD staff may negotiate an adjustment to the District's hours as de- sired to promote the best and highest use of facilities by the community. E. During the school hours, the safety of the students under the control of Ukiah Unified School District staff will be protected under the guidelines of the District's site's "Safe School Plan." 13.2 The HUSC will be utilized by the City and open for programming and/or public use on evenings, weekends, and all non-school days. The City may request use dur- ing UUSD hours on a case by case basis. 14.Revenues and Marketing. The parties agree that Ukiah Valley residents are intended to be the primary benefi- ciaries of the HUSC, although the HUSC will be available for the use of non-residents as well. To that end, the parties desire to develop a marketing plan and activity pro- gram pricing structure that will accomplish the foregoing goal and will provide ade- quate revenues to cover annual operating expenditures. The parties agree that there shall be no discrimination based upon race, color, creed, religion, gender, marital sta- tus, age, disability, national origin, sexual orientation, or ancestry, in any activity or membership offered pursuant to this Agreement. 15.Audits, Record Retention and Inspection. The parties understand and agree that the City is a public entity and as such is subject to various laws including, but not limited to, the California Public Records Act, and as such, members of the public as well as representatives of governmental agencies have access to and the right to examine, audit, excerpt, copy or transcribe any perti- nent transaction, activity, or other records of each party relating to this Agreement. Such material, including, but not limited to, all pertinent costs, accounting, and finan- cial records shall be retained by each party for a period of at least five (5) years after their creation date. Each party grants the other party, at the requesting party's expense, the right to con- duct at any reasonable time an audit and re-audit of the books, records and business conducted related to this Agreement and observe the operation of the business so that the accuracy of the above records and any of the invoices for services provided can be confirmed. In the event of any dispute between the parties as to financial matters, the parties agree, as their sole remedy, to mutually choose an independent auditor, with a mini- mum qualification of being a Certified Public Accountant, to conduct an investigation of the disputed matter. If the parties are unable to mutually choose an auditor, each party shall identify one auditor and those two auditors shall choose a third, independ- ent auditor to conduct the investigation. The auditor so named shall be deemed to have been mutually chosen by the parties. If, as a result of the investigation of the mutually chosen auditor, any adjustment in payment is required by either party, such payment shall be made within sixty (60) days of receipt of written demand for same. The decision of the mutually chosen auditor shall be final and binding upon the parties. 16.Dispute Resolution. 16.1 Operational Issues. Except as otherwise specifically set forth in this Agree- ment, any dispute concerning day to day operational decisions in the implementa- tion of this Agreement shall be resolved by the Community Services Administrator and the Facility Director of the UUSD. For any disputes which cannot be resolved by these individuals, either party may request that the Ukiah City Manager jointly resolve the dispute with the UUSD Superintendent. 16.2 Other Issues. Should other disputes arise between the parties for which a dispute resolution mechanism or remedy is not otherwise specifically set forth in this Agreement, and the parties are unable to resolve such matters between them- selves by negotiation after the complaining party has provided the other party writ- ten notice of the complaint and a reasonable opportunity to cure the problem, then such disputes shall be resolved through mediation. Both parties shall participate in mediation for a minimum of a 60-day period prior to taking the dispute through the court process. In the event the dispute is not resolved through mediation then the dispute shall be resolved as provided in Section 16.3 16.3 Final Dispute Resolution. Unresolved disputes under subsection 16.2 above shall be resolved using the following procedures which are similar to those used in law and motion matters without the opportunity for discovery, including deposi- tions; provided, however, that, the parties shall promptly comply with informal in- formation requests made by the other party. This process shall be deemed to have commenced on the date that the governing body of either party gives written notice to the other party that it requests dispute resolution. A mutually agreed upon attor- ney or sitting or retired judge in Mendocino County ("Hearing Officer") shall hear and decide the dispute. If the parties have failed to agree on the selection of the Hearing Officer within 15 days of initiating these procedures, they shall each des- ignate one candidate. The designees shall then select, among themselves, the Hearing Officer who shall hear and decide the matter. The Hearing Officer shall base his/her decision on submissions from the parties, including declarations un- der penalty of perjury, documents and/or stipulated facts and written and oral ar- guments. All written submissions by the City and the UUSD shall be submitted to the Hearing Officer and each other simultaneously within 30 days of selecting the Hearing Officer. The Hearing Officer shall conduct one hearing within 30 days after the written submissions by the parties have been served on each other to hear oral argument and shall make a written decision within 30 days after the hear- ing concludes. The parties shall be bound by the Hearing Officer's written decision which shall not be subject to further appeal but may be enforced in accordance with California Code of Civil Procedure Sections 1285-1289. 17.Indemnification. 17.1 The City agrees to indemnify, defend and hold harmless UUSD, its agents, officers and employees, from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, or property dam- age arising from or connected with City's operations or its services under this Agreement, including any subrogation or similar action by a Worker's Compensa- tion insurer, liability or expense, arising from or connected with services performed by or on behalf of the City by any person pursuant to this Agreement. City's duty to indemnify UUSD shall survive the expiration or other termination of this Agree- ment. 17.2 The UUSD agrees to indemnify, defend and hold harmless City, its agents, officers and employees, from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, or property dam- age arising from or connected with UUSD's operations or its services under this Agreement, including any subrogation or similar action by a Worker's Compensa- tion insurer, liability or expense, arising from or connected with services performed by or on behalf of the UUSD by any person pursuant to this Agreement. UUSD's duty to indemnify City shall survive the expiration or other termination of this Agree- ment. 17.3 The parties agree and will ensure that all staff are trained in all safety related matters as required by law or appropriate for the services provided at the HUSC. This includes criminal history checks as part of pre-employment screening. 18.Insurance. 18.1 Without limiting UUSD's indemnification of City or limiting City's indemnifica- tion of UUSD, City shall provide insurance or equivalent coverage and name UUSD as an additional insured under policies of comprehensive general liability and workers' compensation insurance under its insurance or pooled risk provider. Detailed requirements and exhibits, or equivalent, as agreed by the parties, to be added after award of grant. 18.2 Without limiting UUSD's indemnification of City or limiting City's indemnifica- tion of UUSD, UUSD shall provide insurance or equivalent coverage and name the City as an additional insured under policies of comprehensive general liability and workers' compensation insurance under its insurance or pooled risk provider. De- tailed requirements and exhibits, as agreed by the parties, to be added after award of grant. 19.Notices. Any notice, consent, authorization or other communication to be given shall be in writing and deemed duly given and received when (a) delivered personally, (b) transmitted by facsimile or email, (c) one business day after being deposited for next-day delivery with a nationally recognized overnight delivery service, or (d) three business days after being mailed by first class mail, charges and postage prepaid, and in all cases properly addressed to the party to receive such notice at the last address furnished for such purpose by the party to whom notice is directed. In the case of notices to be given to the City, notice shall be addressed as follows: City Manager City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 Phone: 707-463-6200 Fax: 707-463-6740 With a copy to: City Clerk City of Ukiah 300 Seminary Avenue Ukiah, CA 95482 Phone: 707-463-6200 Fax: 707-463-6740 In the case of notices to be given to the UUSD, notice shall be addressed as follows: Chief Business Official Ukiah Unified School District 511 S. Orchard Avenue Ukiah, CA 95482 Phone: 707-472-5011 Fax: 707-463-2120 Either party may change its address or other contact information by giving notice in writing to the other party as specified in this section. 20.Amendments. This Agreement shall only be amended by a writing signed by both parties after approval by the City Council and UUSD Board of Directors. 21.Appropriations. The payment of any obligations of the City described in this Agreement is subject to the annual appropriation of funds for said payments by the City Council. This provision does not affect any obligation of the City for payment of funds attributable to a fiscal year for which an annual budget or amendments thereof has been ap- proved by the City Council which includes budgeted funds to cover the cost of the obligation. 22.Miscellaneous Provisions. 22.1 Good Faith and Cooperation. The City and UUSD agree that it is in their mutual best interest and in the best interest of the public that the HUSC be oper- ated and managed as herein agreed and, to that end, the parties shall in all in- stances cooperate and act in good faith in compliance with all of the terms, cove- nants, and conditions of this Agreement and shall deal fairly with each other. 22.2 Severability. If any provision of this Agreement, or the application of such provision to any party or circumstance, shall be held by a court of competent juris- diction to be invalid or unenforceable, the remainder of this Agreement, or the ap- plication of such provision to such party or circumstance other than those to which it is held to be invalid or unenforceable, shall not be affected thereby. 22.3 Governing Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of California, without regard to that state's conflict of laws principles. 22.4 Entire Agreement. This Agreement contains the entire agreement of the par- ties and supersedes all prior to contemporaneous written or oral negotiations, cor- respondence, understandings and agreements between the parties regarding the subject matter hereof. 22.5 Parties in Interest. Nothing in this Agreement shall confer any rights or rem- edies under or by reason of this Agreement on any party other than the UUSD and the City nor shall anything in this Agreement relieve or discharge the obligation or liability of any third party to any party to this Agreement nor shall any provision give any third party any right of subrogation or action over or against any party to this Agreement. 22.6 Waiver. Failure of either party to complain of any action, non-action or default of the other party shall not constitute a waiver of such party's rights hereunder with respect to such action, non-action or default. Waiver by the UUSD or City of any right or any default hereunder shall not constitute a waiver of any subsequent de- fault of the same obligation or for any other default, past, present or future. No payment by a party, or acceptance by the other party, of a lesser amount than shall be due from one party to the other shall be treated otherwise than as a payment on account. The acceptance by a party of a check for a lesser amount, with an endorsement or statement thereon, or upon any letter accompanying such check, that such lesser amount is payment in full, shall be given no effect, and a party may accept such check without prejudice to any rights or remedies which it may have against the other party. 22.7 Construction. This Agreement has been negotiated by the parties and their respective legal counsel and will be fairly interpreted in accordance with its terms and without strict construction in favor of or against any party. 22.8 No Assignment. This Agreement, nor any part of it nor any right or obligation arising from it shall be assigned without the express written consent of the parties. 22.9 Independent Contractor Status. The parties shall at all times be acting as independent contractors. This Agreement is not intended, and shall not be con- strued to create the relationship of servant, employee, partner, joint venture or as- sociation as between the parties. The parties understand and agree that any of their personnel furnishing services to the HUSC under this Agreement are employ- ees solely of the party which hired such personnel for purposes of workers' com- pensation liability and for purposes of receiving all other types of employee bene- fits. The parties shall bear the sole responsibility and liability for furnishing workers' compensation benefits to any personnel hired by them for injuries arising from or connected with services performed under this Agreement, and shall bear the sole responsibility and liability for furnishing all other employee benefits to any person- nel hired by them. IN WITNESS WHEREOF, the UUSD and the City have executed this Agreement on the Effective Date. UUSD By: - Name: Debra Kubin Title: Superintendent Approved as to form: Name: David Rapport Title: City Attorney City of Ukiah By: J�S � Name: Sage Sangiacomo Title: City Manager