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Agmt for Heritage Ball FieldAGREEMENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX This AGREEMENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX (hereinafter "Agreement") is made this day of 2008 (the "Effective Date"), by and between the City of Meridian, a municipal corporation organized under the laws of the State of Idaho (hereinafter "CITY"), and Joint School District No. 2, a school district organized under the laws of the State of Idaho (hereinafter "DISTRICT"). RECITALS: i. The respective governing bodies of CITY and DISTRICT are mutually interested in encouraging and supporting athletic programs far students and community members. ii. CITY has established the Meridian Parks and Recreation Department to enhance the Meridian cornrnunity's quality of life in part by providing recreational opportunities for Meridian citizens. iii. DISTRICT is committed to preparing today's students for tomorrow's challenges though education, including physical education and athletic activities related to the educational program. iv. CITY and DISTRICT recognize that through cooperation, publicly-held facilities can be used to meet broader community needs for education and recreation than either party can provide separately. v. Pursuant to Idaho Code § 33-601(5), DISTRICT's Board of Trustees has the power to enter into a contract with CITY for the joint construction, development, maintenance, and equipping of softball fields upon property owned by the DISTRICT. vi. In conjunction with the construction of the Heritage Middle School facility located at 4990 N. Meridian Road, Meridian, Idaho, and pursuant to the terms of this Agreement, DISTRICT has constructed a softball complex consisting of five playing fields and related improvements (hereinafter referred to as "COMPLEX") and defined as the area depicted on the attached Exhibit "A." vii. CITY has agreed to reimburse DISTRICT for certain costs incurred by DISTRICT for lighting and other improvements for the benefit of the COMPLEX in exchange far DISTRICT's agreement to allow shared use of the COMPLEX and associated parking facilities for the benefit of the community under certain terms and conditions as set forth in this Agreement. viii. CITY finds that the recreation needs of the residents of Meridian can be better served through shared use of the COMPLEX if the development and maintenance of the COMPLEX are enhanced to levels beyond that needed for DISTRICT's requirements. AGREEMENT FOR JOINT USE OF HERITAGE' MIDDLE SCHOOL SOFTBALL COMPLEX PAGE 1 of 10 ix. The respective governing bodies of CITY and DISTRICT find that it is fiscally responsible and in the best interest of their constituents to enter into an agreement sharing the costs and benefits of COMPLEX. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed, and in consideration of the mutual promises and covenants herein captained, and in consideration of the recitals above, which are incorporated herein, CITY and DISTRICT agree as follows: A. CITY's Reimbursement to DISTRICT. Coincident with the execution of this Agreement, CITY shall remit to DISTRICT the sum of $218,500.00, which represents CITY's reimbursernent for the portion of DISTRICT'S costs and expenses incurred in the construction of the COMPLEX. B. Obligations of CITY. 1. Supervision. a. CITY shall provide, or shall require the provision of, on-site supervision of any and all use of COMPLEX where such use is scheduled or authorized by CITY, except that CITY shall not be obligated to provide on-site supervision of practice sessions. b. CITY shall exercise best efforts to see that any and all use of COMPLEX where such use is scheduled or authorized by CITY is in compliance with DISTRICT's policies regarding use of DISTRICT facilities, including such reasonable policies as DISTRICT shall hereinafter adopt or amend from time to time, and which include the following: i. Use and/or possession of alcohol and/or any controlled substance on all DISTRICT property is prohibited; ii. Use and/or possession of all forms of tobacco an all DISTRICT property is prohibited; iii. No use of COMPLEX for any purpose other than for softball games and practices shall be scheduled ar authorized by CITY without prior approval of DISTRICT; and iv. All activities scheduled and/or authorized by CITY on the COMPLEX shall be appropriate and shall be in accordance with the best interests of the DISTRICT and its students and patrons. c. CITY shall be solely responsible for determining the playability of fields within COMPLEX for any and all use scheduled or authorized by City. AGREL'MENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX PAGE 2 0~ 10 2. Maintenance and custodial services. a. CITY shall exercise best efforts to cause the collection and removal of all trash and refuse generated from use of COMPLEX. b. CITY shall prepare infields of COMPLEX for play by CITY, .its guests and invitees when use of COMPLEX is scheduled, authorized, or undertaken by CITY. c. Other than DISTRICT'S routine mowing, irrigation, and maintenance of COMPLEX fields as set forth elsewhere in this Agreement, CITY shall perform all other additional maintenance of such fields and turf which may be necessary to maintain such fields to standards of softball play satisfactory to CITY. d. CITY shall perform annual maintenance of all COMPLEX turf, including, but not limited to, any and all necessary re-seeding, laying sod, weed or pest control, and/or fertilizing. e. CITY shall provide all tools and/or equipment necessary for the preparation and use of fields of COMPLEX for play by CITY, its guests and invitees when use of COMPLEX is scheduled, authorized, ar undertaken by CITY, including, but not limited to, all base receivers, bases, and caps, and shall arrange for storage thereof. f. CITY shall be solely responsible for the maintenance, repair, and replacement of all COMPLEX ball field lighting improvements, including, but not limited to, all light bulbs, fixtures, ballasts, standards, etc. g. CITY shall cause the repair and/or replacement of any and all improvements located on, and components of, COMPLEX and parking lot that are physically damaged (including, but not limited to, all damage from misuse and/or vandalism): (i) during or as a result of any use scheduled and/ar authorized by CITY; (ii) by person(s) who enter upon the COMPLEX and parking lot as a participant, guest, invitee, ar observer, for any use scheduled and/or authorized by CITY; and (iii) at any time other than when Heritage Middle School is in session and during uses of the COMPLEX scheduled or authorized by DISTRICT. h. CITY shall be solely responsible to clean, maintain, and stock all restrooms located on the COMPLEX. i. Restrooms. CITY shall provide and install adequate restroom facilities to serve COMPLEX when use of COMPLEX is scheduled, authorized, or undertaken by CITY. CITY shall obtain DISTRICT's prior approval of the location of all portable restrooms. Any construction of permanent restroom facilities shall be at CITY's sole expense, and shall require DISTRICT's prior written consent as set forth in Section D1, below. Such restroom facilities shall also be available for uses of the COMPLEX scheduled or authorized by DISTRICT. AGREEMENT FOR JOINT USE OF HERITAGE MIDDLE ,SCHOOL SOFTBALL COMPZEX PAGE 3 OF 1 ~ 3. Utilities. CITY shall pay for all utilities and services that are provided to COMPLEX, including, but not limited to, electricity, potable water, sewage service, waste and refuse removal, and/or portable restroom maintenance. 4. Scheduling. Other than the use of COMPLEX by DISTRICT as set forth herein, CITY shall be solely responsible for scheduling all use of COMPLEX for games and practices. 5. Name of Complex/Signage/No Advertising. CITY agrees to refer to the COMPLEX as the "Heritage Middle School Softball Complex" in all printed materials concerning the COMPLEX which are distributed by CITY as well as in all of CITY's efforts to promote the COMPLEX. Upon receipt of the DISTRICT'S prior approval as required in Section D1, below, and at no cost to DISTRICT, CITY shall erect and install a sign at the entrance to the COMPLEX which shall include the name of the COMPLEX and shall also identify that the COMPLEX is as a result of the joint collaboration of DISTRICT and CITY. No permanent signs shall be installed on any portion of the COMPLEX by CITY without the prior written consent of DISTRICT. No cornrnercial advertising shall be permitted on any portion of the COMPLEX, except that temporary signs announcing commercial sponsorship of a CITY event may be posted at the COMPLEX during such event, so long as such signs are removed from the COMPLEX at the conclusion of such event. 6. Primary Source of Contact for CITY. CITY shall provide DISTRICT with the name, e- mail address, and telephone number of specific CITY personnel who shall serve as CITY's primary contact between CITY AND DISTRICT for all matters regarding the day-to-day scheduling, use, and maintenance of COMPLEX (hereinafter "CITY Contact"). C. Obligations of DISTRICT, 1. Maintenance. DISTRICT shall be responsible for the routine mowing and irrigation of COMPLEX fields during DISTRICT's regular mowing and irrigation of the DISTRICT's grounds adjacent to the COMPLEX. DISTRICT'S mowing obligations shall be limited to the mowing of the COMPLEX fields via riding lawnmower, and shall not include any edging or trimming of grass. DISTRICT shall also provide such other turf care and maintenance (i.e., fertilizing, weed control, etc.) to COMPLEX fields equal to that which DISTRICT provides to the grounds adjacent to the COMPLEX. CITY acknowledges that the frequency and extent of DISTRICT's mowing, irrigation, and other maintenance of COMPLEX turf may not meet CITY's standards of playability. 2. Improvements. DISTRICT has fully completed the construction of all of the initial improvements in and upon the COMPLEX as depicted in the plans attached hereto as Exhibit "A," which improvements also included the installation of a pressurized irrigation system and the planting of grass in the COMPLEX. CITY acknowledges that the pressurized irrigation which serves the COMPLEX is part of a larger system which provides irrigation for the remainder of the school site, and, as such, is not capable of being operated separately. 3. Primary Source of Contact for DISTRICT. DISTRICT shall provide city with the name, e-mail address, and telephone number of specific DISTRICT personnel who shall serve as AGREEMENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX PAGE 4 OF 1 ~ DISTRICT's primary contact between DISTRICT and CITY for all matters regarding the day-to-day scheduling, use, and maintenance of COMPLEX (hereinafter "DISTRICT Contact"). D. Rights of CITY. 1. Alterations/Improvements to COMPLEX. Upon receipt of the prior written approval of DISTRICT's Board of Trustees, CITY shall have the right to make alterations of COMPLEX and/or to construct or locate fences, bleachers, signage, fixtures, structures (such as team dug-outs), and/or any other improvements in or upon COMPLEX, provided such alterations, construction, and/or improvements are all provided and maintained by CITY at no cost or expense to DISTRICT. Unless otherwise agreed in writing by the parties prior to construction, any alterations, constructian, and/or improvements to COMPLEX by CITY shall become the property of DISTRICT upon any expiration or termination of this Agreement. Upon receipt of prior written approval of DISTRICT Contact, CITY may install temporary fences in COMPLEX; provided CITY shall agree to trim turf under such fences, and further provided such temporary fences do not impede DISTRICT'S method of mowing COMPLEX fields. 2. Priority use. a. Except as specifically set forth otherwise in this Agreement, on days during which Heritage Middle School is in session, CITY shall have first priority to schedule use of COMPLEX for games and practice sessions that begin no earlier than 6:30 p.m. and end no later than 11:00 p.m.; however, CITY staff shall be entitled to enter COMPLEX no earlier than, 3:30 p.m. to prepare lighted fields for play, and shall be entitled to enter COMPLEX at 6:00 p.m. to prepare unlighted fields for play. b. Except as specifically set forth otherwise in this Agreement, on Saturdays, Sundays, holidays, and days during which school is not in session, CITY shall have first priority to schedule use of COMFLEX for games and practice sessions that begin no earlier than 8:00 a.m. and end no later than 11:00 p.m. c. CITY shall not schedule or authorize use of lights and/or COMPLEX later than 11:00 p.m. d. CITY shall use best efforts to accommodate requests received from District far use of Complex during periods of use granted to City. City shall provide the DISTRICT Contact a weekly written schedule which shall identify the dates and times reserved for use, and which shall include a contact name and phone number for each user. 3. Fees. With prior approval of DISTRICT, which approval DISTRICT is free to withhold in its sole discretion, CITY shall have right to assess and collect reasonable user fees from adults who use COMPLEX; however, the amount of such user fees shall not exceed costs and expenses actually incurred. AGREEMENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX PAGE 5 OF I O E. Rights of DISTRICT. 1. Priority use. a. DISTRICT shall have first priority at all times for use of all Heritage Middle School parking facilities for any and all school and extracurricular uses. b. DISTRICT shall have first priority for use of COMPLEX at all times other than those specifically provided to CITY herein. c. DISTRICT shall have first priority to use the COMPLEX for girls high school softball tournaments (i.e., district, State, and spring break tournaments), provided the DISTRICT shall inform CITY in writing of the scheduled tournament date(s) for the following year during the yearly review meeting referenced in Section F, below, or in the absence of a yearly review meeting, on or before the first of December of each year. d. On days during which school is in session, DISTRICT shall have first priority to schedule use of lighted fields at COMPLEX for games and practice sessions that end no later than 3:30 p.m. On days during which school is in session, DISTRICT shall have first priority to schedule use of unlighted fields at COMPLEX for games and practice sessions that end no later than 6:00 p.m. e. Provided DISTRICT provides at least thirty (30) days advance written notice to CITY Contact and CITY provides written consent, DISTRICT shall have first priority for use of COMPLEX at all times for school-related purposes. CITY shall withhold consent to such use only where CITY has already scheduled or authorized a game at COMPLEX and the scheduled user(s) is/are unwilling to reschedule. f. Other than as set forth in subsection d, above, DISTRICT shall have no obligation to provide CITY Contact with notice of use of COMPLEX during times when DISTRICT has first priority for use. F. Yearl Review. Commencing in November 200$ and continuing during the same month of each year thereafter during the term of this Agreement, CITY's Parks and Recreation Director and DISTRICT's Activities Director agree to meet for the purpose of reviewing the previous year's term of this Agreement to address any problems which may have arisen and to discuss possible changes to improve matters regarding the parties' joint use of the COMPLEX. In addition, during the yearly review meeting, the DISTRICT shall provide CITY with a list of all dates that the DISTRICT intends to reserve the use of the COMPLEX for tournament play during the following year, as set forth in Section E1(c), above. G. Conflict Resolution. If either party believes that the other party is not fulfilling the performance obligations established by this Agreement, that party shall give written notice of its complaint to the other AGREEMENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX PAGE 6 OF 10 party. The party receiving the complaint shall, within fifteen (1 S) calendar days, correct the situation and confirm the correction in writing, or reject the complaint, explaining the mitigating circumstances and why a remedy cannot be achieved. H. Assignment. CITY shall not assign or sublet all or any portion of CITY's interest in this Agreement or any privilege or right hereunder, either voluntarily or involuntarily, without the prior written consent of DISTRICT, which DISTRICT is free to withhold for any reason. DISTRICT shall not assign or sublet all or any portion of DISTRICT's interest in this Agreement or any privilege or right hereunder, either voluntarily or involuntarily, without the prior written consent of CITY, which CITY shall not unreasonably withhold. Provided, however, the DISTRICT shall have the right to enter into agreements to lease portions of the COMPLEX, including fixtures located thereon, to third parties to install, maintain, operate, replace, and remove radio and/or telephone communications equipment, provided such use of the COMPLEX does not unreasonably interfere with rights granted to CITY pursuant to this Agreement. By way of an example, the DISTRICT shall have the right to lease space on existing light standards for the placement of platforms, antennae, and related communications equipment, together with a portion of the land located adjacent to such tower but outside fields of play for related equipment and facilities. All revenue generated from such leases shall be the sole property of the DISTRICT. I. Hold Harmless and Indemnity Agreement. Concomitant with this Agreement, CITY and DISTRICT have entered into the "Hold Harmless and Indemnity Agreement" attached hereto as Exhibit "S" and incorporated herein by reference as though set forth fully herein. J. Notices. Communication between the DISTRICT Contact and the CITY Contact regarding day-to-day matters (i.e., use, scheduling, and maintenance of COMPLEX) shall occur via e-mail, facsimile, or telephone. All other notices required to be given by either of the parties hereto shall be in writing and be deemed communicated when personally served, or mailed in the United States mail, certified, return receipt requested, addressed as follows: City of Meridian Attn: Parks and Recreation Director 33 E. Idaho Avenue Meridian, Idaho 83642 Joint School District No. 2 Attn: District Activities Director 1303 E. Central Drive Meridian, Idaho 83642. AGREEMENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX PAGE ~ OF 10 Either party may change its authorized representative and/or address for the purpose of this paragraph by giving written notice of such change to the other party in the manner herein provided. K. Compliance with Laws_ In performing the scope of services required hereunder, CITY and DISTRICT shall comply with all applicable laws, ordinances, and codes of Federal, State, and local governments. L. Attorney Fees. Should any litigation be commenced between the parties hereto concerning this Agreement, the prevailing party shall be entitled, in addition to any other relief as maybe granted, to court costs and reasonable attorneys' fees as determined by a Court of competent jurisdiction. This provision shall be deemed to be a separate contract between the parties and shall survive any default, termination or forfeiture of this Agreement. M. Term of Agreement. This Agreement shall become effective as of the Effective Date upon execution by both parties, and shall expire twenty (20) years from the Effective Date unless earlier terminated or extended in the manner as set forth in this Agreement. Upon expiration of this Agreement, the parties to this Agreement shall make every effort to mutually extend the term of the partnership established by this Agreement, and neither party shall unreasonably withhold its consent to such extension. N. Termination. 1. Either party may terminate this Agreement upon giving to the other party six (6) months advance written notice of intention to terminate. 2. Should this Agreement be terminated by CITY prior to the expiration of the term set forth in Paragraph M, above, other than as a result of a material breach of this Agreement by DISTRICT, CITY agrees that DISTRICT shall retain all amounts previously received from CITY as set forth in Paragraph A, above, as well as all improvements installed in the COMPLEX by CITY pursuant to Section D1, above, as liquidated damages as a result of such termination by CITY, and neither party shall have any further obligations hereunder. 3. Should this Agreement be terminated by DISTRICT prior to the expiration of the term set forth in Section M, above, other than as a result of a material breach of this Agreement by CITY, DISTRICT shall pay damages to CITY far such early termination in the amount set forth in Paragraph A, above, less ten percent (10%) of such amount per each year that elapses between the date of execution of this Agreement and the date of such termination by DISTRICT, as liquidated damages as a result of such termination by DISTRICT, and neither party shall have any further obligations hereunder. AGREEMENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX PAGE $ OF 10 O. Construction and Severability. If any part of this Agreement is held to be invalid or unenforceable, such holding will not affect the validity or enforceability of any other part of this Agreement so long as the remainder of the Agreement is reasonably capable of completion. P. Exhibits. All exhibits to this Agreement are incorporated by reference and made a part of this Agreement as if the exhibits were set forth in their entirety in this Agreement. Q. Entire A reement. This Agreement contains the entire agreement of the parties and supersedes any and all other agreements or understandings, oral or written, whether previous to the execution hereof or contemporaneous herewith. R. Non-waiver. Failure of either party to promptly enforce the strict performance of any term of this Agreement shall not constitute a waiver or relinquishment of any party's right to thereafter enforce such term, and any right or remedy hereunder maybe asserted at any time after the governing body of either party becomes entitled to the benefit thereof, notwithstanding delay in enforcement. S. Applicable Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Idaho. T. Approval Required. This Agreement shall not become effective or binding until approved by the respective governing bodies of both CITY and DISTRICT. [End of text, signatures on following page] AGREEMENT FOR JOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX PAGE 9 of 10 IN WITNESS WHEREOF, the parties shall cause this Agreement to be executed by their duly authorized officers to be effective as of the day and year first above written. DISTRICT: SY: CITY: BY: LINDA CLARK, Superintendent Date TAMMY de WEERD, Mayor Date Attest: JAYCEE HOLMAN, City Clerk AGREEMENT FOR .IOINT USE OF HERITAGE MIDDLE SCHOOL SOFTBALL COMPLEX PAGE 10 OF l O