FACILITIES JOINT USE AGREEMENT by 5z5544

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									                     FACILITIES JOINT USE AGREEMENT


   BETWEEN LOS GATOS-SARATOGA DEPARTMENT OF COMMUNITY
  EDUCATION AND RECREATION, THE LOS GATOS-SARATOGA JOINT
    UNION HIGH SCHOOL DISTRICT AND THE TOWN OF LOS GATOS


      This Agreement is made this ___ day of __________, 2002, by and between the Los

Gatos-Saratoga Joint Union High School District, the Los Gatos-Saratoga Department of

Community Education and Recreation and the Town of Los Gatos.

                                      RECITALS

      The Los Gatos-Saratoga Joint Union High School District (“District”) is a

high school district organized under the Constitution and laws of the State of

California, and notably the California Education Code. The Los Gatos High School

(“LGHS”) is one of two high schools in the District

      The Town of Los Gatos is a municipal corporation organized under the laws

of the State of California.

      The Los Gatos-Saratoga         Department of Community        Education and

Recreation (“Department”) is a local public agency, a Joint Powers Authority

created by the District, the Saratoga Union Elementary School District, and the Los

Gatos Union Elementary School District, under the Constitution and laws of the

State of California. By the terms of its Joint Powers Agreement, the Department is

subject to the same constraints that the Constitution and laws of the State of

California impose upon public school districts.

      The Department provides public recreation programs, including both

organized and informal activities in the arts, athletic, science, and nature, and



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including events, classes, and other indoor and outdoor activities to members of the

community and, outside of school hours, to students of the Los Gatos-Saratoga Joint

Union High School District, the Los Gatos Union Elementary School District, and

the Saratoga Union Elementary School District.                 The demand by students and

community members for the Department’s services is growing, and the

Department’s program has outgrown the facilities available to it.

       The District, Department and Town agree as follows:



1.     AUTHORITY

       1.1     Chapter 10 of Division 1 of the California Education Code, commencing

with Section 10900, 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.

       1.2     Education Code Section 10905 specifically authorizes public entities to cooperate

with one another to establish, improve, or maintain recreation facilities.

       1.3     Education Code Section 10910 authorizes the governing 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 any other purpose of the public school system.

       1.4     The Department, District and Town desire to enter into an agreement

(“Agreement”) providing for the joint use, by the District and the Department, of a swimming

pool, supporting equipment and structures, and locker rooms (“Facility”) to be constructed at and


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operated by LGHS, and the development of a year-around high school and community aquatics

program.



2.     CONSTRUCTION AND OWNERSHIP OF FACILITY

       2.1     The District agrees to construct and install or cause to be constructed and installed

a swimming pool and supporting equipment and structures at LGHS.

       2.2     The District shall own the Facility and any and all additions, improvements, and

fixtures that the District may make to the Facility, except that any incidental equipment placed

therein by the Department with the permission of the District that is not affixed to the Facility

shall remain the Department’s property.

       2.3     The Town agrees to contribute $300,000 for the construction and installation of a

swimming pool and supporting equipment and structures at LGHS. The Town will make

payment within 30 days after the approval of the Facility project by the District Board of

Trustees. In the event the Facility is not 80% completed within 4 years from the date the Facility

project is approved by the District Board of Trustees, the $300,000 will be returned to the Town.

3.     USE OF PREMISES

       3.1     The Department and LGHS shall share use of the Facility. Neither party may use

the Facility except in accordance with the terms of this Agreement, which shall take effect on the

date the new pool is opened. The Department’s use of the pool shall be subordinate to LGHS’s

use of the pool for educational purposes. Notwithstanding the subordination of community use to

District use, the District guarantees the Facility will be available for community use for not less

than 900 hours from June 16 through August 15, and 108 hours of weekend use and 80 hours of

weekday use each month from August 16 through June 15. This guarantee may be revised in the




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future, or exceptions approved, upon the agreement in writing by the Superintendent of the

District, the Director of the Department and the Manager of the Town.

       3.2    LGHS shall appoint an aquatics coordinator to schedule use of the pool during the

period August 16 through June 15. The aquatics coordinator shall work with the Department to

develop and maintain a consistent and on-going community swim program while

accommodating all educational and athletic needs of LGHS. Subordinate to the needs of LGHS

as defined in Section 3.1 the pool, locker rooms and related facilities will be available to the

Department for community use during the period August 16 through June 15 as follows:

              5:00 am – 7:15 am                      Monday-Friday

              5:30 pm – 10:00 pm                     Monday-Friday

              7:00 am – 10:00 pm                     Saturday, Sunday

LGHS use may extend into the hours designated above for community use. Also, community use

is not restricted to the above times but may extend beyond those times if the pool is not

undergoing maintenance or being used by LGHS.



       3.3    The Department shall appoint an aquatics coordinator to schedule use of the pool

during the period June 16 through August 15. The aquatics coordinator shall schedule the facility

and supervise the community swim program during this period. Subordinate to the needs of

LGHS as defined in Section 3.1 the pool, locker rooms and related facilities will be available to

the Department for community use during the period June 16 through August 15 as follows:

              5:00 am – 10:00 pm                     Monday-Friday

              7:00 am – 10:00 pm                     Saturday, Sunday




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LGHS use may extend into the hours designated above for community use. Also, community use

is not restricted to the above times but may extend beyond those times if the pool is not

undergoing maintenance or being used by LGHS.

       3.4     Closing time will be 10:00 p.m., unless the District and Department agree upon a

different closing time.

       3.5     Both the Department and LGHS may schedule any special activities appropriate

and compatible to the purposes for which the Facility is established. The Department may

schedule special activities outside of the days and hours of community use, provided, however,

that they are approved by LGHS.

        3.5    The Department and District acknowledge that the Facility is a public school

building subject to the California Civic Center Act, Education Code Section 38130, et seq. The

Department and the District, through LGHS, shall cooperate in making the Facility available for

public use under that Act.

       3.6     The Department may allow third parties to use the Facility during the days and

hours of the Department’s use, subordinate to LGHS’s use of the pool for educational purposes.

The Department may accept user fees for third parties’ use of the Facility during the

Department’s days and hours of community use, consistent with the California Civic Center Act,

Education Code Section 38130, et seq. Users will be required to conform to all applicable rules,

regulations, ordinances and/or laws governing school grounds in addition to those applicable to

District property. The Department will be responsible for monitoring users’ compliance with

users’ obligations during the Department’s days and hours of community use. Such use shall be

appropriate and compatible to the purposes for which the Facility is established.




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       3.7     The District may allow third parties or the Department to use the Facility outside

the days and hours of the Department’s use as defined in Sections 3.2 and 3.3 above. The

Department has priority over third parties for use of the Facility outside of the days and hours of

the Department’s use. Such use shall be appropriate and compatible to the purposes for which

the Facility is established. The District may accept user fees for third parties’ use of the Facility

outside the days and hours of the Department’s use, consistent with the California Civic Center

Act, Education Code Section 38130, et seq. Users will be required to conform to all applicable

rules, regulations, ordinances and/or laws governing school grounds in addition to those

applicable to District property. The District will be responsible for monitoring users’ compliance

with users’ obligations outside of the days and hours of the Department’s use.



4.     CONTRIBUTION TO OPERATION AND MAINTENANCE OF THE

       FACILITY

       4.1     During the period August 16 through June 15, as a contribution to the operation

and maintenance of the facility, the Department shall remit monthly to the District, 15% of gross

revenue received by the Department from the use of the facility for Department programs that

are staffed by Department employees, 15% of user fees from a third party remitted to the

Department, and 5% of gross revenue from Department programs staffed by independent

contractors of the Department.

       4.2      During the period June 16 through August 15, as a contribution to the

maintenance of the facility, the Department shall remit monthly to the District, 5% of all gross

revenue received by the Department from the use of the facility during the days and hours of the




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Department’s use whether from the Department’s programs or user fees from a third party

remitted to the Department.

        4.3    The percentages of gross revenue remitted by the Department to the District in

Sections 4.1 and 4.2 may be changed upon agreement in writing by the Superintendent of the

District and the Director of the Department.



5.      MAINTENANCE AND COST OF REPAIR AND REPLACEMENT

        5.1    The District shall perform all maintenance of the Facility, including: custodial

services; maintenance of associated equipment; preventive maintenance; maintenance of any

theft or vandalism preventative devices; repair and replacement of lights, fixtures, and any other

necessary items; all necessary utilities and other expenses commonly referred to as overhead;

and the wages and salaries for any employees, contractors or consultants used to maintain the

Facility.

        5.2    The District shall further undertake the replacement of major capital equipment

such as the pool heating system as needed.

        5.3    The District shall perform any other maintenance deemed necessary and

appropriate by the District.

        5.4    The Department shall be responsible for the cost of repairing or replacing any

District or Department property damaged in connection with Department’s use of the Facility

under this Agreement. Normal wear and tear of any of the property of the District or Department

shall not be included within this provision relating to the repair or replacement of damaged

property.




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       5.5     The District shall be responsible for the cost of repairing or replacing any District

or Department property damaged in connection with District’s use of the Facility under this

Agreement. Normal wear and tear of any of the property of the District or Department shall not

be included within this provision relating to the repair or replacement of damaged property.



6.     INSURANCE

       6.1     The District shall maintain fire and extended risk insurance on the Facility in an

amount sufficient to rebuild the Facility should it be damaged or destroyed by a covered risk.

       6.2     Each party shall, at its own expense, maintain liability insurance of at least

$1,000,000 per occurrence.



7.     REPORTING

       7.1     The District and the Department shall submit to the Town annually a joint report

on the status of the community use of the pool. The report shall include information regarding

the number of participants in community programs and number of hours of community use.

       7.2     The Department shall give to the District a monthly report of all gross revenue

received by the Department from the use of the facility during the days and hours of the

Department’s use whether from the Department’s programs or user fees from a third party

remitted to the Department.

8.     MUTUAL INDEMNIFICATION

       8.1     The Department shall hold harmless and indemnify the District and its officers,

agents, and employees from and against any and all actions, suits, or other proceedings which

may arise as a result of its use of the Facility, except such actions, suits, or other proceedings as



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may arise as a result of the negligence or willful misconduct of the District or of its officers,

agents, or employees.

           8.2   The District shall hold harmless and indemnify the Department and its officers,

agents, and employees from and against any and all actions, suits, or other proceedings which

may arise as a result of its use of the Facility, except such actions, suits, or other proceedings as

may arise as a result of the negligence or willful misconduct of the Department or of its officers,

agents, or employees.

           8.3   The District and the Department shall hold harmless and indemnify the Town and

its officers, agents, and employees from and against any and all actions, suits, or other

proceedings which may arise as a result of its use of the Facility, including settlements paid and

judgments rendered.



9.         TERM OF AGREEMENT

           9.1   This Agreement shall be in effect from the date of execution until thirty years

from the date of the opening of the pool.

           9.2   The Agreement can be terminated at any time by the mutual agreement of the

parties.

           9.3   In the event of a default by the District of its obligation to make the Facility

available for community use as defined in Sections 3.2 and 3.3 above, and its failure to cure this

default within twenty (20) business days after receipt of written notice from the Town, the

District shall pay to the Town, not later than (20) business days from its failure to cure the

default, the pro rata amount of the value of the loss of community use of the Facility, which shall

be determined as described in Exhibit A and incorporated herein by reference.




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          9.4    Notwithstanding the provisions of Sections 9.1, 9.2, and 9.3 above, any party may

terminate the Agreement at any time upon the default of any other party. A party defaults

whenever it fails to cure or correct its failure to perform one or more of its material obligations

under this Agreement within twenty (20) business days after receipt of written notice from any

other party identifying the specific failure of performance and requesting that it cure or correct

the failure. In the event of a party’s default, whether or not any other party exercises its option to

terminate the Agreement, the other parties shall also be entitled to any remedy available at law or

equity.



10.       MISCELLANEOUS PROVISIONS

          10.1   This Agreement may be modified by the mutual agreement of all

parties, but only in writing.

          10.2   Should any term or provision of this Agreement be determined to be illegal or in

conflict with any law of the State of California, the validity of the remaining portions or

provisions shall not be affected thereby, and each term or provision of this Agreement shall be

valid and be enforced as written to the full extent permitted by law.

          10.3   This Agreement and all matters relating to the Agreement and the relationship

between the parties which the Agreement memorializes shall be construed according to the laws

of the State of California.




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      10.4   All notices required by this Agreement may be sent by United States

mail, postage pre-paid, to the parties as follows:

      District:
      Superintendent
      Los Gatos-Saratoga Joint Union High School
      17421 Farley Road West
      Los Gatos, California 95030
      Fax: (408) 354-3375

      Department:
      Director
      Los Gatos-Saratoga Department of
      Community Education and Recreation
      123 East Main Street
      Los Gatos, California 95032
      Fax: (408) 395-3828

      Town:
      Town Manager
      Town of Los Gatos
      110 East Main Street
      Los Gatos, California 95030
      Fax: (408) 354-8431

      Any notices required by this Agreement sent by facsimile transmission to the

facsimile number above shall be considered received on the business day they are

sent, provided they are sent during business hours of the receiving party and

provided receipt is confirmed by telephone, facsimile, or electronic mail, and further

provided the original is promptly placed into the United States mail, postage pre-

paid, and addressed as indicated above.




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Approved by the Governing Board of the Los Gatos-Saratoga Joint Union High
School District

By:                                       Date:
President, Governing Board



By:                                       Date:
Clerk, Governing Board

Approved by the Governing Board of the Los Gatos-Saratoga Department of
Community Education and Recreation

By:                                       Date :
President, Governing Board



By:                                       Date:
Clerk, Governing Board


Town of Los Gatos by:



Debra J. Figone, Town Manager             Date :

Recommended by:




Orry P. Korb, Town Attorney               Date:

ATTEST:

Clerk of the Town of Los Gatos,
Los Gatos, California




Marian V. Cosgrove, Town Clerk




                                   -12-
                                         EXHIBIT A
         (Note: Exhibit A shall become effective only on the date the Facility opens.)

If the District Defaults as defined in Section 9.3 of the Agreement use
this to determine the amount the District Must Pay To Town For Loss
                           Of Community Use
 Years from the Date of the           Pro rata Amount Due to Town
     Opening of the Pool                      For Loss of Use

             0-1                                                $300,000
              2                                                 $290,000
              3                                                 $280,000
              4                                                 $270,000
              5                                                 $260,000
              6                                                 $250,000
              7                                                 $240,000
              8                                                 $230,000
              9                                                 $220,000
             10                                                 $210,000
             11                                                 $200,000
             12                                                 $190,000
             13                                                 $180,000
             14                                                 $170,000
             15                                                 $160,000
             16                                                 $150,000
             17                                                 $140,000
             18                                                 $130,000
             19                                                 $120,000
             20                                                 $110,000
             21                                                 $100,000
             22                                                 $ 90,000
             23                                                 $ 80,000
             24                                                 $ 70,000
             25                                                 $ 60,000
             26                                                 $ 50,000
             27                                                 $ 40,000
             28                                                 $ 30,000
             29                                                 $ 20,000
             30                                                 $10,000
        Over 30 years                                              $0




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