JOINT USE/OPERATING AGREEMENT
FOR DISTRICT SWIMMING POOLS BETWEEN
THE ALAMEDA UNIFIED SCHOOL DISTRICT AND THE CITY OF
ALAMEDA
This Joint Use/Operating Agreement (“Agreement”) is entered into between the Alameda Unified School District, (“District”) and the City of Alameda (“City”) collectively, the “Parties” effective this ____ day of September, 2022.
RECITALS
A. The District is a U nified School District organized under the Constitution and laws of the State of California and the California Education Code. The City is a municipal corporation organized under the laws of the State of California.
B. The District and the City acknowledge that the City faces a shortage of recreational facilities, including swimming pools, and therefore desires to obtain access to District pools for community recreational purposes and , toward that goal, the City is willing to contribute certain funding under this Agreement toward the cost of improvements and ongoing maintenance of the swimming pools, in exchange for District’s agreement to allow City to use the pools for public recreational use during certain specified periods.
C. The District and the City desire to enter into a n agreement providing for the joint use and operation, by the District and the City, of the District’s four (4) swimming pools, appurtenant areas, supporting equipment and structures, and locker rooms (“Facilities”).
AUTHORITY
Education Code section 10900, et seq., authorizes public entities to cooperate with one another to organize, promote, and conduct programs for community recreation that will contribute to the attainment of general recreational and educational objects for children and adults of this State. Education Code section 10905 specifically authorizes public entities to cooperate with one another to establish, improve, or maintain recreation facilities. Education Code section 10910 authorizes the govern ing body of any school district to grant the use of any building, grounds, or equipment of the district to any other public authority for community recreational purposes if such use will not interfere with use of the buildings, grounds, and equipment for a ny other purpose of the public school system.
THEREFORE, DISTRICT AND CITY AGREE AS FOLLOWS:
SECTION 1: PURPOSES AND OBJECTIVES OF AGREEMENT
This Agreement furthers the best interests of the residents of the City and of the District, for their health, safety, and welfare, and is in accordance with the public purposes and provisions of applicable federal, state and local law. An additional purpose of this Agreement is to ensure a cooperative effort between City and District to enable each entity to provide for public use and benefit in the most cost-effective manner.
SECTION 2: TERM
Subject to provisions set forth elsewhere in this Agreemen t regarding termination, the term (“Term”) of this Agreement shall commence as of the date of full execution of this Agreement (the “Effective Date”), and shall remain in effect through June 30, 2027 unless terminated earlier by the parties as described below.
SECTION 3: OPERATING COSTS
3.1 Each Party shall pay 50% of all utility costs associated with the Facilities, including water, electricity, gas, heat, cooling, telephone, sewer, and refuse collection. These costs are estimated to be $175,000 each fiscal year.
3.2 Sewer fees must be based on actual usage per East Bay Municipal Utility District water invoices.
3.3 Annually, the City and the District will meet and discuss the upcoming year's budget.
3.4 Annually, the District shall provide the City detailed invoicing and appropriate backup for reimbursement of costs. The City shall provide payment to the District within 45 days of Parties agreement on charges.
SECTION 4: MAINTENANCE, REPAIRS AND REPLACEMENT
4.1 The District shall perform all routine maintenance of the Facilities, including: custodial services; maintenance of associated equipment; preventive maintenance; maintenance of any theft or vandalism; repair and replacement of lights and any other necessary items; and the wages and salaries for any employees, contractors or consultants used to maintain the Facility. The City shall report any maintenance issues of which it becomes aware to the District representative designated in section 4.4 below. Costs to perform routine maintenance shall be allocated equally between the City and the District, except the cost of salary and benefits for a Pool Services Technician to be hired by the District shall be allocated 60% to the District and 40% to the City ; provided however, the District shall not be precluded from providing pool maintenance by outside contractors should the District staffing to provide such maintenance prove not to be cost effective, subject to advanced written approval by the City.
4.2 The District and City shall meet to develop and implement a Preventative Maintenance Plan within ninety (90) days of JUA execution. The Preventative Maintenance Plan will be enforced for the term of the JUA.
4.3 Except as provided in section 4.3 of this Agreement, the District shall replace, or obtain outside contractors to replace, major capital equipment as needed. The costs of such projects shall be borne equally by the District and City.
4.4 The City shall be responsible for the cost of repairing or replacing any District proper ty damaged in connection with City’s use of the Facilities under this Agreement.
4.5 Both parties must give their advance written approval for any maintenance, repair or capital equipment project with costs greater than fifteen thousand ($15,000). In the case of an emergency project needed to address a health or safety condition , the District shall request City approval and, if such approval is not received within twenty -four (24) hours, District may proceed with the emergency project.
4.5 The Distri ct shall notify the City of planned preventative maintenance work and collaborate on a schedule that accommodates both user groups.
4.6 Each party shall immediately provide to the other party any and all communications from the County of Alameda regarding the Facilities.
Communications shall be sent via email to the following addresses:
Amy Wooldridge: [email protected] and [email protected] Monty Patterson: [email protected]; and
[email protected]
4.7 District shall provide the City copies of all maintenance logs upon request.
4.8 District and City shall meet quarterly or as necessary to review and address facility and maintenance issues and concerns.
SECTION 5: SHARED RECREATIONAL USE
5.1 Uses
The District uses the Facilities for its high school aquatics teams including water polo, swimming and diving. This use includes practices, meets and tournaments.
The City uses the Facilities for its community recreation programs such as swim lessons, lap swim, recreational swim, aquatic exercise classes, community birthday rentals and other recreational events and activities. The City also rents the Facilities to community non-profit youth and adult aquatics organizations for swimming and water polo.
City and its user groups shall be responsible for understanding and adhering to all current federal, state and local health orders regarding the COVID -19 virus. The District may impose additional COVID -19 related requirements when accessing their facilities.
5.2 Scheduling
A schedule of use of the Facilities shall be subject to review and a pproval by the City Director of Recreation and Parks or designee and the District Director of Maintenance, Operations and Facilities or designee. In April of each calendar year, the District and City staff shall meet to create and approve a use schedule for the Facilities for the swimming and diving season. In December of each calendar year, the District and City staff shall meet to create and approve a use schedule for the Facilities for the water polo season.
Once approved, this schedule shall not be cha nged without prior notification per Section 5.4.4 and approval from the other party with the exception of post-season championship games and related practices which may have a one-week notification period to the City.
5.3 Encinal High School Swim Center Daytime Use
Once the construction, as funded by the City, is completed for the DSA permitted Encinal High School Swim Center ingress/egress security plan , the City shall then have access for use at Encinal High School Swim Center during Regular School Hours. Both parties acknowledge that if daytime usage of this facility impacts classroom instruction and school operations then both parties will meet to address and accommodate as necessary. City agrees to not use whistles, bullhorns, or amplified music during school instruction hours.
5.4 Additional Scheduling
5.4.1 For any scheduling in addition to that stipulated in Section 5. 2, District shall provide its schedule to the City per the Alameda Recreation and Parks Department estab lished deadlines and procedures as outlined in the City’s Athletic Facility Allocation Policy (included as Exhibit A).
5.4.2 The City shall issue appropriate permits to any community users to which it allows access to the Facilities during its priority use time. The City shall provide copies of such permits to the District upon request.
5.4.3 The District shall provide a template for the City to enter scheduled events for each season, which the District will enter into its facility reservation system. The District shall upload any changes to City permits in the District’s permit system once that season’s schedule is input into the system.
5.4.4 In the event either party desires to use the Facilities for times not in the agreed upon s chedule as stated in Section 5.2 , such request shall be submitted at least thirty (30) days in advance . The parties will make a reasonable attempt to accommodate requests, however once the scheduling meetings have been completed and use scheduled, any alt erations will be at the sole discretion of the party with scheduled use for the time period requested.
5.4.5 City shall assume responsibility for scheduling all community requests to use the Facilities. City shall timely communicate all pertinent information, including information regarding closure, repairs, or use limitations with all community groups or members who have scheduled use of the Facilities.
5.4.6 No use may be scheduled later than 9:30 p.m. with 30 minutes allowed for groups to vacate the premises by 10:00 p.m. Should City approved user groups fail to vacate by the end of their scheduled use , and with verification of this fact provided by the District to the City (ie, timestamped photos, etc.), these user groups may be subject to additional custodial fees incurred by the District and billed to the City.
5.4.7 City user groups will be required to secure the facilities including locking and alarming. Failure to secure facilities before vacating may result in additional custodial charges and fee s for potential damage. In consultation with the City, and with verification of this fact provided by the District to the City, user groups that fail to adhere may lose the privilege to access facilities due to District liability.
User Fees
5.5 In compliance with applicable laws including the Civic Center Act (Education Code section 38130, et seq.), each party shall have the authority to charge admission, user fees, concession sales, or other related fees to the public during its use of the Facil ities. The revenue received during a party’s programs and activities will remain the property of that party.
Additional Shared Facilities
5.6 District shall provide wireless internet services at the Facilities and provide access to City staff.
5.7 City staff shall have access to storing materials in their existing storage space at the Facilities, to the extent necessary to perform the City’s obligations under this Agreement.
User Group Conduct
5.8 Drug-Free/Smoke Free Policy. No drugs, alcohol, and/or smoking are allowed at any time in any buildings and/or grounds on DISTRICT property. No City staff, contractors, subcontractor, or approved user groups are to use these substances on DISTRICT property. The District reserve s the right to refuse access to user groups who violate this policy.
SECTION 6: TERMINATION
Termination without Cause
6.1 Either Party shall have the right to terminate this Agreement by written notification thirty (30) days prior to the effective date of the termination. Neither party shall be required to provide just cause for termination in the written notification.
6.2 Either Party may, upon ten (10) days written notice, terminate the operation of a single site under this Agreement if, in the Party’s sole discretion, the costs to repair a site or to render it suitable for public use are prohibitive.
Termination for Cause
6.3 District may terminate this Agreement immediately for cause.
Cause shall include, without limitation, material violation of this Agreement by City; any act by City exposing the District to liability to others for personal injury or property damage; or notification from the County of Alameda that all or part of the Facilities must be closed to public use. These provisions are in addition to and not a limitation of any other rights or remedies available to the District.
SECTION 7: INDEMNITY AND INSURANCE
Indemnity
7.1 City shall indemnify, reimburse, hold harmless, and defend District, its trustees, officers, employees and agents against any and all claims, causes of action, demands, suits, losses, judgments, obligations, costs, or liabilities, and all reasonable expenses incurred in investigating or resisting the same (including reasonable attorneys' fees), arising out of, directly or indirectly, in whole or in part, any injury, death or damage to any person or property under this Agree ment as a result of City’s negligence or willful misconduct; unless due in whole or in part, directly or indirectly, from the negligence or willful misconduct of District, its employees or agents. This indemnification shall not apply in those instances where District had actual knowledge and failed to inform City of an actual hazardous condition of the premises.
7.2 District shall indemnify, reimburse, hold harmless, and defend City, its officers, employees and agents against any and all claims, causes of action, demands, suits, losses, judgments, obligations, costs, or liabilities, and all reasonable expenses incurred in investigating or resisting the same (including reasonable attorneys' fees), arising out of, directly or indirectly, in whole or in part, any injury, death or damage to any person or property under this Agreement as a result of District's negligence or willful misconduct; unless due in whole or in part, directly or indirectly, from the negligence or willful misconduct of City, its employees or agents. This indemnification shall not apply in those instances where City had actual knowledge and failed to inform District of an actual hazardous condition of the premises.
7.3 City shall ensure that District is named as an additional insu red and indemnitee prior to issuing a use permit or otherwise permitting use of the Facilities.
Self-Insurance
7.4 Each party acknowledges that it is permissibly self-insured under the applicable laws and shall, provide on an annual basis to the other party adequate proof of self-insurance and excess liability coverage. Each party shall upon request provide to the other a Certificate of Insurance naming the other as an additional insured with respect to the obligations under this Agreement and the use of Premises. Each party shall upon request provide a letter of self- insurance and give a copy to the other party.
City Insurance Responsibilities
7.5 Liability Insurance. City shall, during the term of this Agreement, maintain in force, a combined, sing le-limit commercial general liability insurance policy in the amount of not less than two million dollars ($2,000,000) with District, its employees and agents, at City’s expense, named as additional insureds under such policy. Such policy shall provide for a thirty (30) day written notice to District of any cancellation or reduction of such insurance. City shall upon request provide District a certificate of insurance evidencing this coverage in a form satisfactory to District upon execution of this Agreement, upon request of District during the term of this Agreement and prior to expiration of any such policy.
7.6 Insurance Limits, Ratings of Insurers and Certificates. It is the intent of the parties that policy limits set herein may be raised from time to time during the Term of this Agreement to account for (i) increases in the charges for the use of the Facilities and (ii) increases in the estimated full replacement cost of the Facilities.
SECTION 8: OTHER PROVISIONS
Notices to District
8.1 Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to District by City shall be in writing and shall be deemed duly served and given when personally delivered to District, to any managing employee of District, or, in lieu of personal service, when deposited in the United States mail, first-class postage prepaid, and sent by express mail that allows for tracking, or sent via email addressed to District at:
Alameda Unified School District
Assistant Superintendent of Business Services
2060 Challenger Drive, Suite 100
Alameda, CA 94501
[email protected]
Notices to City
8.2 Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this Agreement or by law to be served on or given to City by District shall be in writing and shall be deemed duly served and given when personally delivered to City, any managing employee of City, or, in lieu of personal service, when deposited in the United States mail, first-class postage prepaid, and sent by express mail that allows for tracking, or sent via email addressed to City at:
City of Alameda
Office of the Recreation and Park Director
2226 Santa Clara Avenue
Alameda, CA 94501
[email protected]
Compliance with All Applicable Laws
8.3 The parties shall keep fully informed of all existing and future state and federal laws and all municipal ordinances and regulations of the City of Alameda which affect this Agreement, as well as all such orders and decrees of bodies or tribunals having any jurisdict ion or authority over the same .
Parties shall comply with all applicable laws, state and federal and all ordinances, rules and regulations enacted or issued by the City of Alameda.
Binding on Successors and Assigns
8.4 This Agreement shall be binding on and shall inure to the benefit of the executors, administrators, successors, and assigns of the parties hereto.
Partial Invalidity
8.5 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforcea ble, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding.
Resolution of Disputes
8.6 Before resorting to mediation, arbitration or other legal process, the parties shall meet and confer and attempt to amicably resolve any dispute arising from or relating to this Agreement, subject to the following provisions.
Any party desiring to meet and confer shall so advise the other party pursuant to a written notice. Within fifteen (15) days after provision of that written notice by the party desiring to meet and confer, the parties shall meet in person and attempt to amicably resolve their dispute. Each party shall send to the meeting a person with full authority to resolve the dispute, and shall be prepared to devote at least an entire day thereto. If any dispute remains unresolved at the end of the meeting, any party to this Agreement shall have the right to invoke the following mediation process. Any dispute that remains unresolved after the meet and confer shall immediately be submitted to non- binding neutral mediation, before a mutually acceptable, neutral retired judge or justice at the San Francisco Office of the Judicial Arbitration and Mediation Service (JAMS). If within five days after the meet a nd confer the parties are unable to agree upon the selection of a neutral mediator, then the first available retired judge or justice at the San Francisco office of JAMS shall serve as the neutral mediator. The parties agree to commit to at least one full day to the mediation process. The costs of the mediator, if any, will be paid for by each party on an equal basis. If a mediated settlement is reached, no party will be the prevailing p arty for the purposes of the resolution of the dispute.
No party wi ll be permitted to file legal action without first following the provisions in this section.
Execution in Counterparts
8.7 This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
Interpretation
8.8 In interpreting this Agreement, it shall be deemed to have been prepared by the p arties jointly and no ambiguity shall be resolved against either party on the premise that it or its attorneys was responsible for drafting this Agreement or any provision hereof.
Permits and Licenses
8.9 District, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, certificates and licenses that may be required in connection with the operation, use and maintenance of the Facilities.
*************signatures on next page***************
IN WITNESS WHEREOF, DISTRICT and CITY have executed this Agreement as of the date written on the first paragraph of this Agreement.
_______________________________ _______________________________ Pasquale Scuderi Nancy Bronstein
Superintendent Interim City Manager
Recommended for Approval
_______________________________
Amy Wooldridge
Recreation and Parks Director
Approved as to Form
City Attorney
_______________________________
Elizabeth A. Mackenzie
Chief Assistant City Attorney
Alameda Unified School District City of Alameda
Addendum to Joint Use/Maintenance Agreement
Regarding Renovation of the Emma Hood Swim Center at Alameda High School
The District successfully passed Facilities Bond Measure B on June 7, 2022, and the City and District each agreed to allocate $7.5 million to equally contribute costs up to a total of $15 million toward the re-construction of the Emma Hood Swim Center.
Therefore, both parties agree to the following terms regarding the design, funding and construction of the Emma Hood Swim Center:
Design
1. AUSD shall manage and coordinate the design of the project. The City shall have equal design approval within the parameters required to meet California Interscholastic Federation (CIF) and Division of State Architect (DSA) requirements for aquatic facility design.
2. AUSD shall include City staff in meetings with the design team.
3. The entire community will be included in all public design input meetings and the City shall assist in marketing those meetings (and potentially hosting meetings at a City facility) to the broader Alameda community. These meetings will be run by AUSD and the design team consultants.
Funding
1. AUSD shall provide direct funding for all services from design to construction.
2. Expenses shall be tracked and accounting provided to City.
3. AUSD shall bill the City for $2.5M each time it reaches $5M in expenditures, for a total of three (3) reimbursements.
4. AUSD shall include City in major decisions that affect the project budget and City shall have equal project budget approval.
Construction
1. AUSD shall manage the project while under construction.
2. The parties shall work diligently and cooperatively to meet the schedule as outlined below (per Amendment No. 1 MOU Concerning a New City Aquatic Facility), with the express goal to begin construction on the Aquatic Facility by March 30, 2024.
Schedule Completion Date
Complete development of conceptual design for the new Aquatic Facility
Jan 31, 2023
Completed final construction documents and all City, County and DSA permits received
January 31, 2024
Begin construction of the new Aquatic Facility March 30, 2024 Construction and inspections complete and new Aquatic Facility open to the public
September 30,
2025
Prior to the completion of the Emma Hood Swim Center construction, both parties shall enter into a new Joint Use Agreement to better reflect the uses and scheduling of the new facility.
During the construction of the Emma Hood Swim Center, the Joint Use Agreement shall remain in effect, through the term ending June 30, 2027.
Acknowledgement of these additional terms per the Addendum:
_______________________________ _______________________________ Pasquale Scuderi Dirk Brazil
Superintendent Interim City Manager
Alameda Unified School District City of Alameda