JOINT USE AGREEMENT FOR JOINT USE FACILITIES
THIS AGREEMENT is made and entered into on this day of May 1, 2023, by and between the CITY OF FOSTER CITY/ ESTERO MUNICIPAL IMPROVEMENT DISTRICT, hereinafter called " CITY/ EMID", and the SAN MATEO/ FOSTER CITY SCHOOL DISTRICT, hereinafter called " SCHOOL DISTRICT."
RECITALS
WHEREAS, on or about December 16, 1991, CITY/ EMID, and SCHOOL DISTRICT, hereinafter referred to collectively as the " PARTIES," executed an agreement in writing by the terms of which they settled between themselves a lawsuit concerning the exchange of real property; and the revision of a 1981 agreement between the COMMUNITY DEVELOPMENT AGENCY OF THE CITY OF FOSTER CITY, hereinafter called " AGENCY" and SCHOOL DISTRICT; and
WHEREAS, said Agreement provided for the joint use of the CITY/ EMID and SCHOOL DISTRICT of certain facilities and the joint financing of the cost of maintenance and improvements; and
WHEREAS, the Agreement was amended on November 4, 1993 (" First Amendment"), August 18, 1994 (" Second Amendment"), March 1, 1999 (" Third Amendment"), March 21, 2011 (" Fourth Amendment") and September 19, 2016 (“ Fifth Amendment”); and
WHEREAS, on May 1, 2020, the PARTIES further amended the Agreement, adopting an Amended and Restated Agreement containing all of the agreed- upon provisions; and
WHEREAS, the Amended and Restated Agreement dated May 1, 2020 expires on April 30, 2023 and the PARTIES now wish to enter into a new Agreement." TERMS
Based upon the above- referenced Recitals, the PARTIES agree as follows:
1. Term of Agreement. The term of this Agreement shall be for three ( 3) years from the date above written. SCHOOL DISTRICT AND CITY/ EMID shall have the option to renew the Agreement for an additional three ( 3) year term. In order to exercise this option, SCHOOL DISTRICT AND CITY/ EMID shall meet and confer no later than six ( 6) months before the end of the initial three ( 3) year term of this Agreement. SCHOOL DISTRICT AND CITY/ EMID shall give written notice of confirmation of extension in order to renew the Agreement.
DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC
2. SCHOOL DISTRICT Facilities Subject to This Agreement. The SCHOOL DISTRICT agrees that shared usage of Audubon, Beach Park, Brewer Island, Bowditch, and Foster City School, hereinafter " FACILITIES", shall be allowed under the terms and conditions enumerated herein.
a. Audubon. CITY/ EMID is authorized to use the multipurpose room, men' s/boys’ and women' s/girls’ bathrooms located adjacent thereto, by scheduling such use as provided below in Paragraph 3.
b. Beach Park. CITY/ EMID is authorized to use the multipurpose room, men’s/boys’ and women’s/girls bathrooms located adjacent thereto, by scheduling as provide below in Paragraph 3.
c. Brewer Island. CITY/ EMID is authorized to use the gymnasium, men' s/boys’ and women' s/girls’ bathrooms located adjacent thereto, by scheduling such use as provided below in Paragraph 3.
d. Bowditch. CITY/ EMID is authorized to use the gymnasium, men' s/boys’ and women' s/girls’ bathrooms located adjacent thereto during the SCHOOL DISTRICT' s summer recess.
e. Foster City School. CITY/ EMID is authorized to use the multipurpose room, men' s/boys’ and women' s/girls’ bathrooms located adjacent thereto, by scheduling such use as provided below in Paragraph 3.
f. No later than September 30 of each year, the above -referenced school sites shall provide to the CITY/ EMID their planned school year event calendar.
After September 30, SCHOOL DISTRICT will attempt to not exceed 25 changes for the remainder of the school year.
g. Storage space of at least 150 square feet shall be provided to CITY/ EMID at Audubon and Brewer Island schools. CITY/ EMID shall have the option of installing temporary storage containers after the release of students for the summer recess at Foster City School and Bowditch School in areas authorized by the SCHOOL DISTRICT. If CITY/ EMID installs temporary storage containers, the containers shall be removed prior to the commencement of the next school year.
3. Access to FACILITIES
a. CITY/ EMID shall schedule all use of DISTRICT facilities through the online civic permits process at www. smfc. civicpermits. com for each proposed use of FACILITIES. If CITY/ EMID arranges access for recreation department sponsored programs or community non/ profit organizations, then CITY/ EMID will designate such organizations in the Civic Permits platform.
CITY/ EMID arranges appropriate liability coverage for such organizations.
DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC b. The SCHOOL DISTRICT shall issue one set of keys, a fob key ( only at Brewer Island School), and entry codes to CITY/ EMID for access to the above- referenced FACILITIES. CITY/ EMID will not be charged for issuance of the initial keys or fob key, but the SCHOOL DISTRICT shall charge a lost key fee of $ 75.00 and lost fob key fee of $ 100. 00. Additional keys and fob key may be obtained for an additional cost of $ 10 per key and $ 50 per fob key.
c. The SCHOOL DISTRICT will not issue to FACILITIES' renters, users or the public, keys which would allow access to the CITY/ EMlD' s storage areas located at the FACILITIES.
d. Prior to using the facilities for summer use, CITY/ EMID shall schedule a site walk through with District Facilities and Maintenance/ Operations staff at least 30 days prior to the requested date of use.
4. Time Period for Usage of FACILITIES
a. For the Audubon, Beach Park and Foster City School FACILITIES, CITY/ EMID shall be entitled to access from 4:30 PM to 11:00 PM daily and from 8:00 AM to 11:00 PM, Saturday and Sunday.
b. At Brewer Island, the access time shall be from 4:00 PM to 11 :00 PM daily except on Tuesdays. CITY/ EMlD shall leave the facility clean and ready for SCHOOL DISTRICT use by 7:00 AM on school days.
c. The Bowditch site will be made available for CITY/ EMID use during summers when any one of the other four sites ( Audubon, Beach Park, Brewer Island or Foster City School) is not available.
5. Maintenance and Janitorial Service of FACILITIES
a. Routine maintenance and janitorial service of the FACILITIES shall be performed by SCHOOL DISTRICT. CITY/ EMID shall be billed for its share of the costs on a quarterly basis. These costs shall include cost of routine maintenance of the floors, equipment, lighting, heating/ air conditioning, bathrooms in the FACILITIES and costs for janitorial, personnel, consumable supplies, interior painting, and utilities calculated as a percentage of the square footage used by the CITY/ EMID compared to the FACILITIES total building square footage.
b. The above- referenced maintenance and janitorial service shall be provided by SCHOOL DISTRICT at Audubon, Beach Park, Bowditch, Brewer Island, and Foster City School so that the FACILITIES are clean and ready for use DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC by the CITY/ EMID at 4:30 PM, Monday through Friday or, in the case of Brewer Island, 4:00 PM, and at 8:00 AM Saturday and Sunday for all sites.
It is the responsibility of SCHOOL DISTRICT to provide a clean and ready for use facility at Bowditch during the summer months when CITY/ EMID uses Bowditch. It is CITY/ EMlD' s responsibility to provide a clean and ready for use Bowditch facility prior to its reopening at the end of summer recess if CITY/ EMID has made use of the site.
c. Specifically excluded from maintenance and janitorial service costs to be shared are capital replacement costs associated with the building, exterior painting, roof work, landscaping, sidewalk pathways and parking lot repairs.
SCHOOL DISTRICT is solely responsible for the cost of these items unless damage to these items or fixtures results from CITY/ EMID use. d. SCHOOL DISTRICT shall provide CITY/ EMID with one set of keys to all custodial dispensing equipment such as paper towel holders, toilet paper holders, and soap dispensers at the FACILITIES for re -supply purposes. e. CITY/ EMID shall leave the FACILITIES in a clean condition after use as specified in Exhibit A, a copy of which is attached hereto and incorporated by this reference. SCHOOL DISTRICT and CITY/ EMID jointly developed the standards for cleanliness of the FACILITIES as enumerated and restated in Exhibit A.
If CITY/ EMID fails to make the Facilities clean and ready for use as required by this paragraph, SCHOOL DISTRICT may undertake work needed to make the Facilities clean and ready for use and thereafter bill CITY/ EMID for the actual cost incurred in this process.
If SCHOOL DISTRICT fails to make the Facilities cle an and ready for use as required by this paragraph, CITY/ EMID may undertake work needed to make the Facilities clean and ready for use and thereafter bill SCHOOL DISTRICT for the actual cost incurred in this process.
f. No later than November 30th of each year of this Agreement, the SCHOOL DISTRICT shall meet with the City to review anticipated projects and provide a budget estimate to the CITY/ EMID of utility, maintenance, and janitorial service costs itemized and broken out by facility for review by the CITY/ EMID.
6. Scheduling Use of FACILITIES
a. No later than November 30th of each year of this Agreement, CITY/ EMID and SCHOOL DISTRICT will meet to review the SCHOOL DISTRICT' s construction and major maintenance projects which are scheduled to be DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC performed during the SCHOOL DISTRICT' s Fall, Winter, Spring, and Summer breaks with the goal of coordinating this work and with ongoing City programs. The PARTIES, as needed, will have additional meetings if additional time is required by SCHOOL DISTRICT for cleaning and repairs in order to determine the timing and scope of those repairs and the resulting need to reschedule events by CITY/ EMID to accommodate District' s schedule.
b. Unless an emergency occurs, SCHOOL DISTRICT will notify CITY/ EMID no later than March 1 each year regarding construction or major maintenance projects which are scheduled to be performed during the next year' s summer recess.
7. Operational Issues and Emergencies
a. CITY/ EMID shall provide security, supervision, and control during its use of the FACILITY.
b. CITY/ EMID shall assign a staff member, or contracted user group, to lock and unlock the FACILITIES for its use.
c. SCHOOL DISTRICT and CITY/ EMID shall provide at least two phone numbers for notification in the event of an emergency and a site contact for CITY/ EMID and SCHOOL DISTRICT users. Both a CITY/ EMID and SCHOOL DISTRICT emergency contact list will be posted at the FACILITIES for all users to access.
d. CITY/ EMID shall be entitled to make temporary emergency repairs if during its use of the FACILITIES vandalism occurs, bathroom fixtures or athletic equipment becomes inoperative. The CITY/ EMID shall then give SCHOOL DISTRICT immediate telephone, email or fax notice of its response to the emergency and the need for the SCHOOL DISTRICT to perfo rm emergency repairs. SCHOOL DISTRICT shall respond and commence necessary repairs within 72 hours. Major repairs may require more than 72 hours to complete.
8. Insurance
a. SCHOOL DISTRICT shall maintain property damage insurance in an amount equal to the replacement cost of each of the FACILITIES governed by this Agreement. CITY/ EMID will provide the SCHOOL DISTRICT with proof of property and liability insurance on an annual basis. b. CITY/ EMID shall indemnify, save and hold harmless SCHOOL DISTRICT, its officers, Board members, agents and employees against any and all DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC claims, causes of action, suits or judgments, including expenses incurred therewith for death or injury to persons, or loss of or damage to property, resulting from negligent acts of CITY/ EMID, its officers, agents, employees or invitees in the performance of this Agreement. In the event of any such claims made, or suits filed, SCHOOL DISTRICT shall give CITY/ EMID prompt written notice thereof, and CITY/ EMID shall have the right to defend or settle the same to the extent of its interest hereunder. c. SCHOOL DISTRICT shall indemnify, save and hold harmless CITY/ EMID, its officers, Board members, agents and employees against any and all claims, causes of action, suits or judgments, including expenses incurred therewith for death or injury to persons, or loss of or damage to property, resulting from negligent acts of SCHOOL DISTRICT, its officers, agents or employees in the performance of this Agreement. In the event of any such claims made, or suits filed, CITY/ EMID shall give SCHOOL DISTRICT prompt written notice thereof, and SCHOOL DISTRICT shall have the right to defend or settle the same to the extent of its interest hereunder. d. CITY/ EMID and SCHOOL DISTRICT shall each maintain public liability insurance of not less than $ 1,000, 000 per person and $ 1,000, 000 per occurrence and aggregate coverage of $ 2,000, 000 insuring against all liability of CITY/ EMID and SCHOOL DISTRICT and their authorized representatives arising out of and in connection with CITY/ EMlD' s and SCHOOL DISTRICT' s use of the multipurpose rooms, gymnasium facilities, classrooms, and any other District facility. CITY/ EMID and SCHOOL DISTRICT shall each name the other as named insured on their insurance policies. The public liability insurance shall insure performance by each party of the indemnity provisions of paragraph 8 b) and c) above. For non- CITY/ EMID sponsored users, the CITY/ EMID will require the user applicant to provide a Certificate of Insurance providing hold harmless coverage for both the CITY/ EMID and the SCHOOL DISTRICT.
9. Notices. All notices, payments, reports, requests, demands and other communications to be made or given under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally or on the second day after mailing if mailed to the party to whom notice is to be given by first class mail, registered or certified, postage prepaid and prope rly addressed as follows:
CITY/ EMID City Manager/ Parks and Recreation Director
City of Foster City
610 Foster City Boulevard
Foster City, CA 94404- 2299
SCHOOL DISTRICT Chief Business Official
San Mateo- Foster City School District
DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC 1170 Chess Drive
Foster City, CA 94404
The PARTIES may change the address to which notices are to be sent by notice in writing of the new address.
10. Non- Assignment. Neither party may assign, either in whole or in part, its duty to perform or its right to receive performance of any obligation created by this Agreement.
11. Amendments. This Agreement may be amended or modified only by written agreement signed by both parties.
12. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
13. Governing Law. This Agreement shall be governed by the laws of the State of California and any suit or action initiated by either party shall be brought in the County of San Mateo, California. In the event of litigation between the parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney' s fees and expenses of litigation of the successful party.
14. Mediation. Should any dispute arise out of this Agreement, the parties shall meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement, and each party shall bear its own legal costs.
15. Entire Agreement. This agreement contains the entire understanding and agreement.
DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf.
CITY OF FOSTER CITY
BY: ______________________________
JON FROOMIN, Mayor
Dated: _______________
ATTEST:
PRISCILLA SCHAUS, City Clerk
ESTERO MUNICIPAL IMPROVEMENT
DISTRICT
BY: ______________________________
JON FROOMIN, President
ATTEST:
PRISCILLA SCHAUS, District Secretary
DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC 5/ 3/ 2023 | 9: 46 PM PDT
SAN MATEO- FOSTER CITY SCHOOL
DISTRICT
BY: _______________________________
SHARA WATKINS,
President of the Board of Trustees
ATTEST:
LATISA BROOKS,
Clerk of the Board of Trustees
APPROVED AS TO FORM
BY: _______________________________
BENJAMIN STOCK,
City Attorney/ District Legal Counsel for
CITY/ EMID
DocuSign Envelope ID: FECEAC1B- AD7D- 4EAA- A8BF- 98E97A9632DC