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HomeMy WebLinkAboutCC Resolution 12817 (Elementary School Facility Use Agr.)RESOLUTION NO. 12817 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN RAFAEL AUTHORIZING THE CITY MANAGER TO EXECUTE THE SAN RAFAEL CITY ELEMENTARY SCHOOL DISTRICT FACILITY USE AGREEMENT, SUN VALLEY ELEMENTARY SCHOOL WHEREAS, the City of San Rafael has operated the Sun Valley Child Care Center on the Sun Valley Elementary School campus since 2005; and WHEREAS, the San Rafael City Elementary School District owns operates and maintains the Sun Valley School campus at 75 Happy Lane, San Rafael, Ca 94901; and WHEREAS, the District is willing and the City desires to use a portion of the campus for child care purposes as authorized by the Civic Center Act ( Education Code Section 38130, et seq.) and according to the terms and conditions stated in the Facility Use Agreement, Sun Valley Elementary School (Exhibit A); NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES RESOLVE TO AUTHORIZE THE CITY MANAGER TO EXECUTE THE SAN RAFAEL CITY ELEMENTARY SCHOOL DISTRICT FACILITY USE AGREEMENT, SUN VALLEY ELEMENTARY SCHOOL. I, Esther C. Beirne, Clerk of the City of San Rafael, hereby certify that the foregoing Resolution was duly and regularly introduced and adopted at a regular meeting of the City Council of the City of San Rafael, held on Monday, the 17th of August, 2009, by the following vote, to wit: AYES: Councilmembers: Brockbank, Connolly, Heller, Miller & Mayor Boro NOES: Councilmembers: None ABSENT: Councilmembers: None ��T�� c • �iPcu Esther C. Beirne, City Clerk /,,)-5/7 THE SAN RAFAEL CITY ELEMENTARY SCHOOL DISTRICT FACILITY USE AGREEMENT SUN VALLEY ELEMENTARY SCHOOL THIS AGREEMENT, entered into on the 10th day of August, 2009, between the SAN RAFAEL CITY SCHOOL DISTRICT (hereinafter "District") and CITY OF SAN RAFAEL. WITNESSETH WHEREAS, the District owns, operates and maintains certain property located at 75 Happy Lane, San Rafael, CA 94901; and WHEREAS, the District is willing and CITY OF SAN RAFAEL desires to use the property for childcare purposes, as authorized by the Civic Center Act (Education Code section 38130, et seq.) and according to the terms and conditions stated herein. NOW, THEREFORE, DISTRICT AND CITY OF SAN RAFAEL AGREE as follows: PREMISES The District hereby leases to CITY OF SAN RAFAEL, and CITY OF SAN RAFAEL hereby hires from the District the premises and facilities known as 75 Happy Lane, classroom space, for a total of 960 square feet (classroom 6), and located at 75 Happy Lane, San Rafael, CA, County of Marin, State of California (hereafter "Premises"). Included in this Agreement are the fixtures affixed to the Premises. 2. TERM The term of this Agreement will be for a three (3) year period and shall commence on August 15, 2009, and shall terminate on June 15, 2012 unless terminated earlier as provided in Section 3. 3. TERMINATION Either party may terminate this Agreement for any reason on three (3) months' written notice of termination to the other party. 4. RENT As rent for the Premises and fixtures, CITY OF SAN RAFAEL shall pay the District the sum of a flat fee of Eight Thousand dollars and no cents ($8,000) annually or Eight Hundred dollars and no cents ($800) per month from August 15, 2009 through June 15, 2010. The payment shall be made in the following manner: Payable in either one lump sum at the beginning of the Agreement, or in ten (10) monthly payments due in advance (September through June), on the 1St of each month during the term of this Agreement. The rent shall be increased each year by 3%. 5. USE OF PREMISES The Premises are leased to CITY OF SAN RAFAEL for the purpose of providing child care services in accordance with the terms and conditions of this Agreement. CITY OF SAN RAFAEL shall not use or permit the Premises to be used for any other purpose without the prior written consent of the District. CITY OF SAN RAFAEL shall solely be responsible for the control and supervision of the Premises when being used by CITY OF SAN RAFAEL. CITY OF SAN RAFAEL shall maintain the Premises in a safe and clean condition. In the event that CITY OF SAN RAFAEL or any of its employees, officers, agents, customers, guests or invitees cause destruction or damage to District's property, CITY OF SAN RAFAEL shall be liable for the amount necessary to repair the damages, and such destruction or damage shall be grounds to terminate this Agreement at District's election. District also grants to CITY OF SAN RAFAEL and CITY OF SAN RAFAEL accepts a license for access to the Premises by the CITY OF SAN RAFAEL, its employees, agents and clients of the child care program, the restrooms, walkways and corridors, and the playgrounds at the Sun Valley Elementary School. CITY OF SAN RAFAEL understands that its use of the Premises is not exclusive and is granted in joint with the District and/or other lessees, permittees, or invitees approved by the District. CITY OF SAN RAFAEL further agrees that its use of the Premises will not cause interference with the use of Sun Valley School by District or other District -approved lessees, permittees, or invitees and that any interference by CITY OF SAN RAFAEL, as determined by the District, shall be grounds for termination of this Agreement. 6. TITLE TO PROPERTY. The parties acknowledge that title to the Premises is held by the District and shall be unaffected by this Agreement. 7. UTILITIES The District shall pay all water, gas, heat, light, power, and other utility services supplied to the Premises. On a quarterly basis, CITY OF SAN RAFAEL shall pay its pro -rated share of utility costs, based upon its usage of the overall square footage, which at present time equals 4%. 8. ACCESS The District reserves the right to enter and inspect the Premises at any time, provided however, that the District will give advance notice of its intent to enter whenever reasonably possible. 9. PROGRAM STAFFING AND BACKGROUND VERIFICATION CITY OF SAN RAFAEL represents that it is duly licensed to administer and operate its programs, and at District request, CITY OF SAN RAFAEL shall provide copies of relevant certification(s). CITY OF SAN RAFAEL shall be solely responsible for the administration and operation of its programs, including the hiring of all employees. CITY OF SAN RAFAEL shall be responsible for verifying the qualifications, credentials, certificates, and licenses of its staff, agents, consultants and/or subcontractors who may provide services in conjunction with the CITY OF SAN RAFAEL's activities on the Premises. 10. FINGERPRINTING AND CRIMINAL BACKGROUND VERIFICATION Unless the District determines that the CITY OF SAN RAFAEL, its employees, agents, subcontractors, invitees, and/or volunteers will have limited and/or no contact with District students, CITY OF SAN RAFAEL shall be responsible for ensuring compliance with all applicable fingerprinting and criminal background investigation requirements described in Education Code section 45125.1, which may be met under the fingerprinting provisions of Title 22 of the California Code of Regulations and applicable provisions of the California Health and Safety Code relevant to community care facility licensing (Health & Safety Code, § 1500 et seq.). CITY OF SAN RAFAEL shall provide in writing verification of compliance with the aforementioned fingerprinting and criminal background investigation requirements to District prior to each individual's commencement of employment or participation in any CITY OF SAN RAFAEL activity and prior to permitting contact with any pupils. 11. MAINTENANCE AND REPAIRS CITY OF SAN RAFAEL shall keep and maintain the Premises and fixtures reasonably clean and in good condition and repair at its own cost and expense, unless otherwise provided in Section 12 below. Additionally, CITY OF SAN RAFAEL shall keep and maintain any leased fixtures and personal property in good condition and repair, at its own cost and expense. District shall assume full responsibility for all repair and maintenance costs relating to the roof maintenance. District shall be responsible for all other major structural maintenance such as boilers, major plumbing and electrical. District shall maintain the grounds in the same manner as the property of the District. 12. SAFETY INSPECTIONS CITY OF SAN RAFAEL shall conduct safety inspections as required by District or District's representative. CITY OF SAN RAFAEL shall implement safety requirements as instructed by District or District's representative. 13. CAPITAL IMPROVEMENTS AND MAJOR REPAIRS In the event the Premises are declared unfit for human occupancy or for the uses intended by this Agreement because of structural defects, or any other reasons, by any governmental agency, then the District may, at its election, make such repairs as may be necessary to bring the Premises into compliance. In the event that the repairs are not feasible or practicable, the parties may terminate the Agreement, and CITY OF SAN RAFAEL shall be relieved of any further obligation under this Agreement effective on the date that CITY OF SAN RAFAEL terminates its use of the Premises for the purposes stated in this paragraph. 14. SURRENDER AT THE END OF TERM CITY OF SAN RAFAEL agrees that, upon termination of this Agreement, it will surrender possession of the Premises, including any fixtures, to the District in a neat and clean condition, and in a good state of repair, excepting only for reasonable use and wear thereof, damage by fire, acts of nature, or the elements. 15. ALTERATIONS AND MECHANICS LIENS CITY OF SAN RAFAEL shall not make any alterations or additions to the Premises without the prior written consent of the District, and any permanent alterations or additions made to the Premises or fixtures shall become at once a part of the realty and belong to the District. CITY OF SAN RAFAEL shall keep the Premises free from any liens arising out of any work performed, materials furnished, or obligations incurred by CITY OF SAN RAFAEL. 16 CITY OF SAN RAFAEL's PROPERTY The District shall have no duty or responsibility for the protection, safeguarding, care or storage of any personal property of CITY OF SAN RAFAEL, nor shall District be liable for any damage to personal property used or left on the Premises or any surrounding District property by CITY OF SAN RAFAEL or CITY OF SAN RAFAEL's employees, agents, contractors, customers, guests or invitees, including but not limited to damage caused by fire, earthquake, acts of nature, vandalism, or burglary. 17. INDEMNITY It is agreed that CITY OF SAN RAFAEL shall defend, hold harmless and indemnify the District, its Board of Trustees, the members of its Board of Trustees, its other officers, employees and agents from any and all claims for injuries or damages to persons and/or property which arise out of the terms and conditions of this Agreement and which result from the negligent acts or omissions of CITY OF SAN RAFAEL, its officers, employees, customers, guests, or invitees. The duty of CITY OF SAN RAFAEL to indemnify and save harmless, as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code. 18. INSURANCE CITY OF SAN RAFAEL shall carry at its expense and shall provide the District with proof of public liability and property damage insurance in an amount satisfactory to District, provided that such insurance shall not be less than One Million Dollars ($1,000,000.00) combined single limit for bodily injury and property damage. CITY OF SAN RAFAEL shall be named as primary insured for the requested usage and the District, its Board of Trustees, the members of its Board of Trustees, officers, employees and agents, shall be named on as additional insured. CITY OF SAN RAFAEL shall file Certificates of Insurance with the District prior to the use of the District's premises. 19. ASSIGNMENT OR SUBLETTING CITY OF SAN RAFAEL shall not assign this Agreement, or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person (the agents and servants of CITY OF SAN RAFAEL excepted) to occupy or use the Premises, or any portion thereof, without the prior written consent of the District. 20. INDEPENDENT CONTRACTORS This Agreement is made between independent contractors. Nothing in this permit shall be deemed any employment, joint venture or any other agency relationship between the District and CITY OF SAN RAFAEL. 21. SURRENDER OF AGREEMENT NOT MERGER The voluntary or other surrender of this Agreement by CITY OF SAN RAFAEL or mutual cancellation thereof, shall not work a merger, and shall, at the option of the District, terminate all or any existing subleases or subtenancies, or may at the option of the District, operate as an assignment to them or any or all such subleases and subtenancies. 22. SIGNS Any sign or label placed on the Premises, fixtures or equipment shall be removed by CITY OF SAN RAFAEL at the expiration of this Agreement, and any damage to the Premises caused by the removal or installation of the sign shall be paid by CITY OF SAN RAFAEL. 23. HOLDING OVER Any holding over after the expiration of the terms of this Agreement, with the consent of the District, shall be construed to be a tenancy from month to month on the same terms and conditions herein specified, including the same rental amount stated above, unless otherwise agreed by the parties in writing. 24. NOTICES Any notices provided for herein shall be deemed delivered when delivered personally to the other party or when delivered by certified mail, return receipt requested, addressed as follows: For District: San Rafael City School District Business Office 310 Nova Albion Way San Rafael, CA 94903 For City of City of San Rafael San Rafael Community Services Department 618 B Street San Rafael, CA 94901 25. ENTIRE AGREEMENT OF PARTIES This Agreement constitutes the entire agreement between the parties and supersedes all prior discussions, negotiations and agreements, whether oral or written. This Agreement may be amended or modified only by a written instrument executed by both parties. 26. CALIFORNIA LAW This Agreement shall be governed by and the rights, duties and obligations of the parties shall be determined and enforced in accordance with the laws of the State of California. The parties further agree that any action or proceeding brought to enforce the terms and conditions of this Agreement shall be maintained in Marin County, California. 27. ATTORNEYS' FEES If either party files any action or brings any proceedings against the other arising out of this Agreement, the prevailing party shall be entitled to recover, in addition to its costs of suit and damages, reasonable attorneys' fees to be fixed by the court. The "prevailing party" shall be the party who is entitled to recover its costs of suit, whether or not suit proceeds to final judgment. No sum for attorneys' fees shall be counted in calculating the amount of a judgment for purposes of determining whether a party is entitled to its costs or attorneys' fees. 28. WAIVER The waiver by either party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, condition, or any subsequent breach of the same or any other term, covenant, or condition herein contained. 29. SUCCESSORS AND ASSIGNS This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, and assigns. 30 COUNTERPARTS This Agreement and all amendments and supplements to it may be executed in counterparts, and all counterparts together shall be construed as one document. 31. CAPTIONS The captions contained in this Agreement are for convenience only and shall not in any way affect the meaning or interpretation hereof nor serve as evidence of the interpretation hereof, or of the intention of the parties hereto. 32. SEVERABILITY Should any provision of this Agreement be determined to be invalid, illegal or unenforceable in any respect, such provision shall be severed and the remaining provisions shall continue as valid, legal and enforceable. 33. INCORPORATION OF RECITALS AND EXHIBITS The Recitals and each exhibit attached hereto are hereby incorporated herein by reference. IN WITNESSETH WHEREOF, the parties through their duly authorized agents have affixed their hands, SAN RAFAEL CITY SCHOOL DISTRICT DATED: S Ia I 01 �� Jl.•-c( / / BY: Natu Tuatagaloa President, Board of ducation ATTESTED: BY: Christine Thomas Chief Business Official CITY OF SAN RAFAEL DATED: 0113 V 4i & �) g BY: en Nordhoff Cit anager THIS AGREEMENT IS NOT VALID UNTIL SIGNED BY BOTH PARTIES. ATTESTED: 4Zs4-� 4Qt,e-w-.� ESTHER BEIRNE, CITY CLERK CITY OF SAN RAFAEL