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HomeMy WebLinkAbout06474 - PALM SPRINGS UNIFIED SCHOOL DISTRICT FACILITY USE AGR Pock AGREEMENT TO USE FACILITIES This Agreement to Use Facilities ("Agreement"),is made this 300' day of August, 2009. by and between the City of Palm Springs ("City") and Palm Springs Unified School District--Early Childhood Development("PSUSD°). The parties enter into this Agreement on the basis of the following facts and intentions: RECITALS WHEREAS, the City and PSUSD are mutually interested in and concerned with providing quality recreational facilities and educational programs for the citizens of Palm Springs; and WHEREAS, it is recognized that, through a cooperative Agreement between the City and PSUSD, the community will be afforded the fulfillment of one of its educational and recreational goals for citizens. NOW. THEREFORE, the City and PSUSD do hereby mutually.agree as follows: 1. INTENT OF AGREEMENT 1.1 It is the intent of this Agreement to describe the responsibilities of the City and PSUSD in their cooperative effort to effectively promote and provide family literacy programs for underprivileged adults and children. 1.2 The parties agree that PSUSD may utilize certain property located at Desert Highland Park for location of the Even Start facility in the southwest corner of the park during the term of this Agreement. 1.3 it is the intent of this Agreement to solidify a supportive and working relationship between PSUSD and the City. 1.4, It is the intent of this Agreement that both the City.and PSUSD acknowledge and direct their efforts toward the development of family literacy, programs at the Even Start facility in Desert Highland Park. 2. AREAS OF RESPONSIBILITY 2.1 Fees and Charges 2.1.1 PSUSD agrees to pay the City for its use of the property and utilities at Desert Highland Park on an annual basis. The payments shall be a minimum of $4.601 per year (Lease - $1; Utilities - $1,800; Landscape Maintenance - $2.800), payable in advance of January 1 of each year. Utilities and AGREEMENT TO USE FACILITIES Page 2 Landscape Maintenance rates are negotiable at the beginning of each term with the mutual consent of the City and PSUSD. 2.2 Facility Use and Scheduling 2.2.1 The City shall make the parking lot at Desert Highland Park available on a shared, nonexclusive basis, which does not interfere with the City's other recreation programs. Notwithstanding the foregoing, it Is understood that PSUSD shall be permitted to utilize the parking lot at its discretion during normal business hours. The . City has sole discretion and shall act in a timely manner to resolve all scheduling conflicts. 2.3 Teaching Staff 2.3.1 PSUSD shall have complete responsibility for the control and supervision of its staff. 2.3.2 PSUSD shall be responsible_for the control and safety of its staff, students .and program participants within Desert Highland Park and the Even Start facility. 2.3.3 It is the responsibility of PSUSD to insure that all teaching and administrative staff is appropriately credentialed according to the laws and regulations of the State of California. 2.3.4 Any person having supervisory or disciplinary authority over any minor member of PSUSD is subject to a criminal background screening as specified in Califomia Public Resources Code Section 5164. Each PSUSD employee or volunteer having supervisory or disciplinary authority over any minor or adult enrolled in any family literacy program must complete the supplemental questions attached as Exhibit "A" and must concurrently submit. .to being fingerprinted. PSUSD must submit a completed copy of Exhibit "A" and arrange for the fingerprinting of each employee and volunteer before this Agreement may be executed-by the City. Background checks and fingerprinting will be done at the sole cost of PSUSD. The first year that PSUSD performs the background screening for a particular Individual, the screening shall include screening by the federal government. All subsequent years that the PSUSD is required to perform a background check on that same Individual, the screening need only be performed by the state government. AGREEMENT TO USE FACILITIES Page 3 2.3.5 PSUSD must provide the City with a list of its employees and/or volunteers who will have supervisory or disciplinary authority-over any minors while at the Even Start facility. A true and correct list of such employees as of.the date of . execution of this Agreement is attached hereto as Exhibit 'B" Should PSUSD hire a new employee or volunteer who should be listed on Exhibit "B," PSUSD must notify City of this fact within one week and PSUSD must concurrently submit a completed copy of the questionnaire, attached as Exhibit"A,"for the new person. S. INSURANCE AND INDEMNIFICATION - 3-.1 PSUSD shall procure and maintain, at its sole cost and expense, in a form and content satisfactory to City, during the entire term of this Agreement, including any`extension thereof, the following policies of insurance: a. Comprehensive,.' General Liability insurance. A policy of . comprehensive general liability insurance written on a per- occurrence basis with a combined single limit of.$1,000,000. b. Worker's Compensation. Insurance. A policy of worker's compensation insurance In such amount as will fully comply with the laws of the State of California and shall indemnify, insure and provide legal defense for both PSUSD and the City against any lossi claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any person retained by PSUSD in the course of carrying out the work or services contemplated in this Agreement. C. Automotive insurance. A policy .of comprehensive automobile liability insurance written on a per-occurrence basis in an amount not less than either (1) bodily injury liability limit of $250,000 per person and $500,000 per occurrence and property, damage liability limits of $100,000 per occurrence and $250,000 in the aggregate, or (ii) combined single limit liability of $500,000. Said policy shall include coverage for owned, non-owned, leased and hired vehicles. All of the above policies of Insurance shall be primary and shall name the City, its officers, employees and agents as additional insureds. The insurer shall waive all rights of its subrogation and contribution it may have against the City, its officers, employees and agents and their respective insurers. All of said policies of AGREEMENT TO USE FACILITIES Page 4 insurance shall provide that said insurance may not be amended or canceled without providing thirty (30) days' prior written notice by registered mail to the City. In the event any of said policies of insurance are canceled, PSUSD shall, prior to the cancellation , date, submit new evidence of insurance in conformance with this Section 3.1 to the Contract Officer. No work or services under this Agreement shall commence until PSUSD has provided the City with certificates of insurance or appropriate Insurance binders evidencing the above insurance coverage and said certificates of insurance or binders are approved by the City. PSUSD agrees that the provisions of this Section 3.1 shall not be construed as limiting in any way the extent to which PSUSD may be held responsible for the payment of damages to any persons or property resulting from PSUSD's activities or the activities of any person or persons for which PSUSD is otherwise responsible. In the event PSUSD subcontracts any portion of the work or services, the contract between PSUSD and such subcontractor shall require the subcontractor to maintain the same policies of insurance that PSUSD is required to maintain pursuant to this Section 3.1. 3.2 Indemnification. PSUSD agrees to indemnify the City, its officers, agents and employees .against and will hold and save them and I each of them harmless from, any and all actions, suits, claims, damages to persons or property, losses, costs, penalties, obligations, errors, omissions or liabilities (herein "claims or liabilities")that may asserted or claimed by any persons, firm or entity arising out of or In connection with the negligent performance of the work, operations or activities 'of PSUSD, its agents; employees, subcontractors or Invitees, provided for herein, or arising from the negligent performance of or failure to perform any term, provision, covenant or condition of this Agreement, whether or not there is concurrent passive or active negligence on the part of the City, its officers, agents or employees, but excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City, its officers, agents or employees who are directly responsible to the City and, in connection therewith: a. PSUSD will defend any action or actions filed in connection with any of said claims or liabilities and will pay all costs and expenses, Including legal costs and attomeys' fees, incurred in connection therewith; b. PSUSD will promptly pay any judgment rendered against the City, its officers, agents or employees for any claim or I AGREEMENT TO USE FACILITIES Page 5 liabilities arising out of or in connection with negligent performance of or failure to perform such work, operations or activities of PSUSD hereunder; and PSUSD agrees to save and hold the City, its officers, agents and employees, harmless therefrom; C. In the event the City, its officers, agents or employees, is made a party to any action or proceeding filed or prosecuted against PSUSD for such damages or other claims arising out of or in connection with the negligent performance of or failure to perform'the work; operation or activities of PSUSD hereunder, PSUSD agrees to pay the City, its officers, agents or employees, any and all costs and expenses incurred by the City, its officers, agents or employees, in such action or proceeding, including, but not limited to, legal costs and attorneys' fees. 3.3 Sufficiency of Insurer or Surety. Insurance or bonds required by the Agreement shall be satisfactory only if issued by companies qualified to do business in Califomia rated °A"or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Risk Manager of the City("Risk Manager") due to unique circumstances. In the event the Risk Manager of the City determines that the work or services to be performed under this Agreement creates an increased or decreased risk of loss to the City, PSUSD agrees that he t minimum Limits of the insurance policies and the performance Bond required b th is Section 3 may be changed accordingly upon q Y Y 9 9 Y Po receipt of written notice from the Risk Manager; provided that PSUSD shall have the right to appeal a determination of increased coverage by the Risk Manager to the City Council of City within ten (10)days of receipt of notice from the Risk Manager. 44 WAIVER OF UTILITY FAILURE 4.1 PSUSD expressly waives any and all claims to the City for compensation for any and all losses or damages sustained for any reason or any defect, deficiency or impairment of any utility system, water supply system, drainage system, electrical apparatus or wires serving the Even Start facility at Desert Highland Park S. ENFORCEMENT OF AGREEMENT 5.1 California Law. This Agreement shall be construed and interpreted both as to validity and to performance of the parties in accordance with the laws of the State of Caiifomla. Legal actions concerning AGREEMENT TO USE FACILITIES Page 6 any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and PSUSD covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 5.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring parry in writing of its contentions by submitting a claim therefor. The Injured party shalt continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five(45)days after service of the injured party; provided that if the default is an immediate danger to the health, safety and general welfare, such immediate action may- be necessary. Compliance with the provisions of this section shall be a condition precedent to termination,of this Agreement for cause and to any legal action, and such .compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured provided that nothing herein h, p g shall limit QWs or PSUSD's right to terminate this Ag reement with S g out cause pursuant to Section 5.6. 5.3 Waiver. No delay or omission in the exercise of any right or remedy by a non-defaut6ng party on any default shall Impair such right or remedy or be construed as a waiver. A party's consent to or approval of any act by the other party requiring the party s consent or approval shall not be deemed to waive or render unnecessary the other party's consent to or approval of any subsequent act. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concemirâ–ºg the same or any other provision of this Agreement. 5.4 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are, cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different time, of any other rights or remedies for the same default or any other default by the other party. 5.5 Legal Action. In addition to any other rights or remedies, either party may take legal action, in law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel speck performance of this Agreement, to obtain declaratory or Injunctive relief, or.to obtain any other remedy consistent with the purpose of this Agreement. AGREEMENT TO USE FACILITIES Page 7 5.6 Termination Prior to Expiration of Term. This section shall govern any termination of this Agreement. The City reserves the right to terminate this Agreement at any time, with or without cause, upon thirty (30) days' written. notice to PSUSD, except that where termination Is due to the fault of PSUSD, the period of notice may be such shorter time as may be determined by the Contract Officer. In addition, PSUSD reserves the right to terminate this Agreement at any time, with or without cause, upon sixty (60) days' written notice to City, except that where termination is due to the fault of the City, the period of notice may be such shorter time as PSUSD may determine. 5.7 Attorneys' Fees. If either party to this Agreement is required to initiate or defend'or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees. Attorneys' fees shall include attorneys' fees on any appeal. In addition, a party entitled to attorneys' fees shall .be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows that are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and I shall be enforceable whether or not such action is prosecuted to judgment. 6. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 6.1 Non-liability of City Officers and Employees. No officer or employees of the City shall be personally liable to PSUSD or any successor in interest in the event of any default or breach by the City or for any amount that may become due to PSUSD or to its successor or for breach of any obligation of the terms of this Agreement. 6.2 Conflict of Interest. No officer or employee of the City shall have . any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement that affects his financial interest or the financial interest of any corporation, partnership or association in which he is directly or Indirectly interested, in violation of any state statute or regulation. PSUSD warrants that it has not paid or given and will not pay or give any third party any money or other consideration_ for obtaining this Agreement. 6.3 Covenant Against Discrimination. PSUSD covenants that, by and for itself, its heirs, executors, assigns and all persons claiming AGREEMENT TO USE FACILITIES Page 8 under or through them, there shall be no discrimination against or segregation of any person or group of persons on account of race, colori creed, religion, sex, marital status, sexual preference, domestic partnership status, national origin or ancestry in the performance of this Agreement. 7. MISCELLANEOUS PROVISIONS 7.1... _.Notice. Any notice, demand, request, document, consent, approval or communication either party desires or is required to give to the other party or any other person shall be in writing and either served personally or sent.by pre-paid, first-class mail, In the case of the City, to the Director of Parks and Recreation, CITY OF PALM SPRINGS, P.O. Box 2743, Palm Springs, California 92263, and, in the case of PSUSD, to the person at the address designated on the execution page of this Agreement. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated at the time personally delivered or in seventy-two (72) hours from the time of mailing if mailed as provided in this section. 7.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or.against either party by reason of the authorship of this Agreement or any other, rule of construction that might otherwise apply. 7.3 Integration; Amendment. It is understood that there are no.oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and,all previous negotiations, arrangements, agreements and understandings, if any, between the parties and none shall be used to interpret this Agreement. This Agreement may be.amended at any time by the mutual consent of the parties by an instrument in writing. 7A Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement..shall be declared invalid or unenforceable by a valid judgment or decree of court of competent jurisdiction; such invalidity or unenforceability shall not affect any of the remaining . phrases, sentences, clauses, paragraphs or sections of this Agreement that are hereby declared as 'severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basis benefit of their bargain or renders this Agreement meaningless. AGREEMENT TO USE FACILITIES Page 9 7.5 Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that (1) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (Ili) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) the entering Into this Agreement does not violate any provision of any other agreement to which said party is bound. 8 COORDINATION OF WORK &I Representatives of PSUSD. The following principals of PSUSD are hereby designated as being the principals and representatives of PSUSD, authorized to act in its behalf with respect to the work specified herein and make all decision in connection therewith: Palm Springs Unified School District Early Childhood Development Programs Joan Prehoda, Director 1000 East Tahquitz Canyon Way, Suite C Palm Springs, CA 92262 It is expressly understood that the experience, knowledge, capability and reputation of the foregoing principals were a substantial Inducement for City to enter into this Agreement. Therefore, the foregoing principals shall be responsible during the term of this Agreement for directing all activities of PSUSD and devoting sufficient time to personally supervise the uses hereunder. However, if, through the course of this contract, the representatives of PSUSD change, written notice of such change shall be submitted to the City. A change in representatives shall not represent a change in the intent or direction of the contractual agreement between the City and PSUSD. 8.2 Contract Officer. The Contract Officer shall be such person as may be designated by the City Manager of City, R shall be PSUSD's responsibility to assure that the Contract Officer is kept informed of PSUSD's use of the Even Start facility and shall refer any decisions that must be made by the City to the Contract Officer. Unless otherwise specified herein, any approval of the City required hereunder shall need the approval of the Contract Officer, The Contract Officer shall have authority to sign all documents on behalf of City required hereunder to cant' out the terms of this Agreement. AGREEMENT TO USE FACILITIES Page 10 9_ TERM 9.1 Unless earlier terminated in accordance with Section 5.6 .of this Agreement, this Agreement shall continue in full force and effect for a period of one year beginning August 30, 2009 and ending June 11, 2010. This Agreement is executed by the duly authorized representative of the City and PSUSD as of the date first written above. "CITY" CITY OF PALM SPRINGS II ! By. biredtor.of Parks and Recreation Approved as to Form: "PSUSD" PALM SPRINGS UNIFIED SCHOOL DISTRICT BrosAn$erson, fid.A. Its:A'ssistant Superintendent HducationalSernicea By Its: .