FACILITIES USE AGREEMENT BETWEEN NATOMAS UNIFIED SCHOOL DISTRICT AND HIGHLANDS COMMUNITY CHARTER SCHOOL I. RECITALS

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1 FACILITIES USE AGREEMENT BETWEEN NATOMAS UNIFIED SCHOOL DISTRICT AND HIGHLANDS COMMUNITY CHARTER SCHOOL THIS AGREEMENT ( Agreement ) is made this 10th day of November, 2014 (the Effective Date ), by and between the Natomas Unified School District, a public school district operated in the County of Sacramento, organized and existing under the laws of the State of California (hereinafter referred to as the NUSD ) and Highlands Community Charter School, a non-profit public charter school operated in the County of Sacramento, organized and existing under the laws of the State of California (hereinafter referred to as the Charter School ). I. RECITALS WHEREAS, the NUSD is the owner of certain real property and facilities located at 2775 Millcreek Drive, Sacramento, CA (the Site ) (Map of the Site attached as Exhibit A ); WHEREAS, the NUSD and Charter School desire to enter into this Agreement to document the arrangement between the parties regarding the Charter School s use of the Site during the and school years ( Applicable Years ), pursuant to the conditions set forth below; NOW THEREFORE, in consideration of the covenants and agreements hereinafter set forth, the Parties agree as follows: Section 1. Use of the Site. The NUSD hereby grants to the Charter School, on the terms and conditions set forth herein, use of the Site for the sole purpose of operating a Community Based Education CBEd program which includes, but is not limited to; English Language Development, Citizenship Preparation and Family Literacy curricula. The Charter School s use of the Site shall comply with all NUSD policies, regulations and/or practices applicable to the NUSD facilities. The Charter School shall be solely responsible for obtaining and maintaining all licenses and/or permits necessary, if any, for conducting a California public charter school. The Charter School further agrees to comply with all applicable ordinances, statutes, and regulations related to its use of the Site and conducting charter school activities. This includes the use of buildings; 1 Large Classroom Secure storage for textbooks and supplies Men s and women s restrooms Adequate Parking A. Term. The Charter School s use of the Site shall be for the and school years commencing on January 14, 2015 and terminating on June 30, This Agreement may be renewed by written agreement of the Parties. B. Joint-Use. The Charter School acknowledges that its right to use the Site shall not interfere with the NUSD s shared use of the Site, if any. The NUSD s shared use of the Site, if any, shall not unreasonably interfere with the Charter School s use of the Site. 1

2 C. Reversion to NUSD. Upon the expiration of this Agreement by its terms, the right to use and to occupy the Site and its facilities, and NUSD equipment thereon, shall revert to the NUSD. D. Civic Center Act. The parties agree that the Site remains subject to the Civic Center Act (Education Code Section 38131, et seq.), with the NUSD allowed to provide access and use of the Site pursuant to the Act as long as such access or use does not conflict with or materially impair the Charter School s right to use of the Site under this Agreement. The Charter School acknowledges that all requests submitted to the Charter School for use of the Site under the Act shall be forwarded to the NUSD. Before granting access or use of the Site pursuant to the Act, the NUSD shall advise the Charter School of the proposed user and of the planned use, and coordinate such access or use in a manner intended to minimize the potential impact on the Charter School or its operations. E. Drill Notice. In the event that the Charter School conducts a fire, earthquake or other emergency drill, the Charter School shall provide the NUSD with reasonable advance notice of the time and nature of the drill. F. Furnishings and Equipment. The Charter School, at its sole cost and expense, shall be responsible for providing and maintaining in good repair and operating condition all equipment and materials (other than buildings) to furnish and equip the facilities for classroom instruction and operation of a charter school. In the alternative, the Charter School may use furnishings and equipment from the NUSD, if available. Upon completion of an initial inventory of equipment conducted by the NUSD, the Charter School agrees to maintain an inventory to account for all equipment and a sufficient budget for all repairs or maintenance to equipment and furnishings at the Site that are within its care, custody or control, with Charter School further agreeing to repair, maintain, or replace all such equipment or furnishings in keeping with its obligations to provide a safe and suitable educational environment. G. Acknowledgement of Suitability, Compliance and Waiver. By executing this Agreement, the Charter School and the NUSD agree to conduct an inspection of the Site to determine that the Site is safe, adequate, and appropriate, to conduct operations. If it is determined that the site is not suitable for occupancy (due to non-functioning systems such as plumbing, electrical, HVAC/R, fire or intrusion alarms, ADA compliance, roofing or structural deficiencies, door lock keys, fire extinguishers, legal postings at entry, etc.) the NUSD shall do whatever is necessary to make the space or facility safe or compliant its it sole expense. Section 2. Facilities Use. A. Facilities Use. The NUSD agrees to provide space to the Charter School as described in Section 1at no charge until either party shall terminate this agreement by giving a written notice of intention to terminate at least thirty (30) days prior to the date of termination or until June 30, Section 3. Utilities. The Charter School shall be responsible for a share of utilities used in the operation of its program. The Charter School agrees to pay $ monthly to the NUSD for this purpose This includes, but is not limited to the cost of, electricity, gas, sewer, trash, internet access, and telephone. 2

3 Section 4. Maintenance and Operations. The ongoing operations and maintenance of the Site and its facilities shall remain the responsibility of the NUSD; the NUSD will provide its own janitorial service and/or janitorial staff. A. Major Maintenance and Emergency Repair. In the event that the Charter School requires the NUSD to perform emergency or major maintenance and repairs, the Charter School shall notify the NUSD directly. An emergency repair is defined as a situation requiring immediate attention, generally characterized by a dangerous or hazardous condition. Emergency work should be of such importance that immediate action is required to prevent a safety or health hazard, or prevent significant damage to NUSD property. The NUSD reserves the right to implement a process for submission of maintenance/repair requests. Section 5. Installation of Improvements by the Charter School. The Charter School shall not construct or install any improvements on the Site or otherwise alter the Site without the NUSD s prior written consent. The NUSD s approval of any improvements, including the work schedule, work hours, and modifications, shall be at the NUSD s reasonable discretion. All contractors retained by the Charter School with respect to the construction or installation of improvements shall be fully licensed and bonded as required by law and must maintain levels of casualty, liability and workers compensation insurance and performance and payment bonds consistent with NUSD construction requirements. The construction or installation of improvements shall be performed in a sound and workmanlike manner, in compliance with all laws applicable including, but not limited to building codes, fingerprinting requirements and prevailing wage laws. The NUSD or NUSD s agent shall have a continuing right at all times during the period that improvements are being constructed or installed to enter the premises and to inspect the work, provided that such entries and inspections do not unreasonably interfere with the progress of the construction or interrupt instruction to students, and NUSD may require the immediate cessation of work if the construction or installation is considered to be unsafe, inadequate or placing the Site at risk of physical danger or compromise. In the event NUSD requires the cessation of work, NUSD and the Charter School will immediately meet to address the NUSD s concerns. No construction or installation will resume until the NUSD s concerns are adequately addressed. Section 6. Provision of Facilities. The facilities to be provided to the Charter School during the Applicable Year shall be accessible to the Parties no later than January 9, Section 7. Keys/Security System. The Charter School shall be provided keys and a security code for all locked doors and monitored security systems ( Security Systems ) provided at the Site. The Charter School recognizes that the Security Systems currently provided at the Site may include a separate intrusion alarm system, security camera system, and/or site visits/monitoring by a private security patrol. Section 8. Condition of Property. The Charter School, at its sole cost and expense, shall comply with all applicable laws, regulations, rules and orders with respect to its shared use and occupancy of the Site, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality. The Charter School shall not be responsible for any conditions that existed prior to the Charter School s occupancy of the Site, so long as such conditions are not exacerbated by the Charter School s negligence or willful misconduct. The NUSD shall remain responsible for compliance with the ADA, FEHA, and other applicable building code standards regarding access for any existing compliance issue prior to the date of execution of this 3

4 Agreement. The Charter School shall only assume responsibility for compliance with ADA and FEHA access rights to the extent of any modifications or improvements made by the Charter School. Should any modifications or improvements made by the Charter School change or affect the character of any existing improvements, the Charter School shall be responsible for bringing said existing improvements into compliance with ADA, FEHA, and other applicable building code standards. The Charter School shall comply with all licensing, payment and performance bond and prevailing wage laws with respect to all modifications. Should any discharge, leakage, spillage, emission, or pollution of any type occur upon or from the portions of the Site as a result of the Charter School s occupancy thereof, the Charter School, at its sole cost and expense, shall be obligated to clean all the property affected, including, if applicable, any properties in the vicinity of the Site, to the satisfaction of NUSD and any governmental agencies having jurisdiction over the Site or any other properties affected by the discharge, leakage, spillage, emission, or pollution. If the Charter School fails to take steps to clean the Site or otherwise fails to comply with any requirements regarding the clean up or amelioration of any discharge, leakage, spillage, emission, or pollution of any type, the NUSD reserves the right to take over the clean-up and to take all necessary steps to recoup any and all costs associated therewith from the Charter School, which takeover shall not occur unreasonably. Section 9. Title to Property. The Parties acknowledge that title to the Site and all improvements are held by the NUSD, and shall remain in NUSD possession at all times. Section 10. Surrender of Premises. Upon the expiration of this Agreement, or any extension thereof, or termination of this Agreement, the Charter School shall peaceably vacate the Site and any and all improvements located thereon and deliver up to the NUSD in substantially the same condition as existing on the date of commencement of this Agreement, reasonable wear and tear, damage by the elements, fire, earthquake, flood, or public calamity excepted. The Charter School shall be financially responsible for any needed repairs to the Site due to the Charter School s acts or omissions, minus normal wear and tear, after vacating the Site. Section 11. Insurance. The Charter School will procure and maintain Commercial General Liability coverage including bodily injury and property damage liability arising out of the use and occupancy of the premise of no less than $1,000,000 per occurrence and $5,000,000 in the aggregate. The Charter School s insurance shall be primary unless the claim, injury, or loss is at the active negligence of the NUSD. The NUSD shall be named as additional insured. The NUSD will procure and maintain property coverage for the premise and building that is being leased at full replacement cost. The NUSD s insurance shall be primary. The Charter School shall procure and maintain insurance for their personal property. Section 12. Indemnification. With the exception of any liability, claims or damages caused solely by the active negligence or willful misconduct of the NUSD, the Charter School shall indemnify, hold harmless, and defend the NUSD, its trustees, officers, employees and agents against any and all claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors, omissions and costs, including legal costs, attorney s fees and expert witness fees, whether or not suit is actually filed, and/or any judgment rendered against the NUSD, its trustees, officers, employees and agents, that may be asserted or claimed by any person, firm or entity for any injury, death or damage to any person or property occurring in, on or about the Site after the Effective Date, arising from, or in 4

5 connection with, the Charter School s use of the Site or from the conduct of its business, including conduct of its board of directors, administrators, employees, agents, representatives, volunteers, subcontractors, invitees, successors and/or assigns or from any activity, work, or other things done, permitted or suffered by the Charter School in or about the Site; the Charter School s obligation to defend the NUSD and other indemnities identified herein is not contingent upon there being an acknowledgement or determination of the merit of any claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors, omissions and/or costs. With the exception of any liability, claims or damages caused solely by the active negligence or willful misconduct of the Charter School, the NUSD shall indemnify, hold harmless, and defend the Charter School, its trustees, officers, employees and agents against any and all claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors, omissions and costs, including legal costs, attorney s fees and expert witness fees, whether or not suit is actually filed, and/or any judgment rendered against the Charter School, its trustees, officers, employees and agents, that may be asserted or claimed by any person, firm or entity for any injury, death or damage to any person or property occurring in, on or about the Site after the Effective Date, arising from, or in connection with, the NUSD s use of the Site or from the conduct of its business, including conduct of its board of directors, administrators, employees, agents, representatives, volunteers, subcontractors, invitees, successors and/or assigns or from any activity, work, or other things done, permitted or suffered by the NUSD in or about the Site; the NUSD s obligation to defend the Charter School and other indemnities identified herein is not contingent upon there being an acknowledgement or determination of the merit of any claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors, omissions and/or costs. Section 13. Placement of Signs. The Charter School may not place, construct, or maintain any signs identifying the Site as the Charter Schools, or for any other purpose, without first obtaining NUSD approval. Any signs so placed at the Site will be at the Charter School s sole expense and must first be approved by the NUSD Pastor or designee, which approval shall not be unreasonably withheld. The Charter School shall not remove, block, obscure or deface any NUSD signs which are or may be posted on the premises. The NUSD will in no way be financially responsible for the maintenance or upkeep of any signs placed at the Site by the Charter School. Section 14. Access and Inspection. The Charter School shall permit the NUSD, its agents, representatives or employees, to use the classroom and adjoining rooms during the hours the space is not in use by the Charter School. Further the Charter School shall permit the NUSD to enter upon the Site for the purpose of inspecting same, to make repairs, alterations, or additions to any portion of the Site, in the event of emergencies, if there is an imminent threat to the health or safety of occupants, or if access is for the purposes of meeting the NUSD s oversight obligations. The NUSD shall attempt to give reasonable notice where practicable but shall not be obligated to do so. Section 15. Termination. This Agreement may be terminated without further liability by either party upon prior written notice for the following: A. By the Charter School for any reason, or for no reason, by giving thirty (30) days notice of its intention to terminate to NUSD. 5

6 B. By the Charter School, upon mutual agreement between the NUSD and the Charter School, if the Site is so damaged, destroyed or otherwise impaired as to hinder the Charter School s effective use of the premises for a charter school at any time up to thirty (30) days after the date of damage, destruction or impairment. In the event the Site is so damaged, destroyed or otherwise impaired as to hinder the Charter School s effective use of the premises for a charter school, the NUSD will make a good faith effort to provide other NUSD facilities to HCCS, if available, but shall have no obligation to provide substitute facilities to the Charter School. C. By the NUSD for a material failure by the Charter School to observe or perform any of the provisions of this Agreement where such failure shall continue for a period of thirty (30) days after notice thereof from the NUSD to the Charter School; provided, however, that if the nature of the Charter School s default is such that more than thirty (30) days are reasonably required for its cure, then the Charter School shall not be deemed to be in default if the Charter School commences such cure within said thirty (30) days period and prosecutes such cure to completion by a mutually agreed upon date certain. D. By the NUSD in the event the Charter School files for bankruptcy or ceases operation, effective immediately upon the date of filing for bankruptcy or ceasing operations. Ceasing operations shall be defined as voluntary surrender or revocation of the Charter. Section 16. Taxes. The NUSD shall be solely liable for any and all taxes which may be levied or assessed upon the personal property, furnishings or fixtures of the NUSD located at the Site or used by the Charter School. Section 17. Notice. Any notice required or permitted to be given under this Agreement shall be deemed to have been given, served and received if given in writing and personally delivered or either deposited in the United States mail, registered or certified mail, postage prepaid, return receipt required, or sent by overnight delivery service or facsimile transmission, addressed as follows: To the Charter School: To the NUSD: Principal Kirk Williams Highlands Community Charter School P.O. Box Sacramento, CA Facsimile: (916) Assistant Superintendent, Will Jarrell Natomas Unified School District 901 Arena Blvd. Sacramento, CA Phone: (916) Any notice personally given or sent by facsimile transmission shall be effective upon receipt. Any notice sent by overnight delivery service shall be effective the business day next following delivery thereof to the overnight delivery service. Any notice given by mail shall be effective three (3) days after deposit in the United States mail. 6

7 Section 18. Subcontract, Assignment and Subletting. Neither Party shall assign its rights, duties or privileges under this Agreement, nor shall a Party attempt to confer any of its rights, duties or privileges under this Agreement (including that of sublease) on any third party, without the written consent of the other Party. Section 19. Independent Status. This Agreement is by and between two independent entities and is not intended to and shall not be construed to create the relationship of agent, servant, employee, partnership, joint venture, or association. Section 20. Entire Agreement of Parties. This Agreement, together with its attachments, constitutes the entire agreement between the Parties and supersedes all prior discussions, negotiations and agreements, whether oral or written. In the event of a conflict between this Agreement and the Charter, this Agreement shall control. This Agreement may be amended or modified only by a written instrument executed by the Parties. Section 21. California Law. This Agreement shall be governed by and the rights, duties and obligations of the Parties shall be determined and enforced in accordance with the laws of the State of California. The Parties further agree that any action or proceeding brought to enforce the terms and conditions of this Agreement shall be maintained in Sacramento County, California. Section 22. Waiver. The waiver by any Party of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, condition, or any subsequent breach of the same or any other term, covenant, or condition herein contained. Section 23. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, legal representatives, successors, and assigns. Section 24. Counterparts. This Agreement and all amendments and supplements to it may be executed in counterparts, and all counterparts together shall be construed as one document. Section 25. Captions. The captions contained in this Agreement are for convenience only and shall not in any way affect the meaning or interpretation hereof nor serve as evidence of the interpretation hereof, or of the intention of the parties hereto. Section 26. Severability. Should any provision of this Agreement be determined to be invalid, illegal or unenforceable in any respect, such provision shall be severed and the remaining provisions shall continue as valid, legal and enforceable. Section 27. Recitals and Exhibits. The Recitals and each exhibit attached hereto are incorporated herein by reference. Section 28. Facsimile Signatures. This Agreement may be executed and transmitted to any other party by facsimile, which facsimile shall be deemed to be, and utilized in all respects as, an original, wet-inked document. Section 29. Dispute Resolution. In the event of any dispute between the Charter School and the NUSD regarding this Agreement, including alleged violation, misrepresentation or misapplication of this Agreement, the complaining party shall prepare a written statement of the dispute which shall be 7

8 simultaneously submitted to the NUSD Assistant Superintendent of School Leadership and Support and the Charter School s Principal. The Assistant Superintendent and the Principal shall meet and confer within five (5) business days from the date of receipt of the written statement and attempt to resolve the dispute. In the event the matter is not resolved, the parties shall identify two members of their respective governing boards who shall meet with the Assistant Superintendent and Principal within ten (10) business days and attempt to resolve the dispute. If this meeting fails to resolve the dispute, either party may, within five (5) business days following the meeting, submit the matter to a mutually agreeable mediator, for final determination in accordance with any procedure determined and prescribed by the mediator. If the parties are unable to agree to a mediator, they will request that the mediation service appoint a mediator. If neither party submits the matter to mediation the determination of the NUSD shall control. The Parties may thereafter exercise any right or remedy at law or in equity. Date. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the Effective NATOMAS UNIFIED SCHOOL DISTRICT By: Will Jarrell, Assistant Superintendent Date: HIGHLANDS COMMUNITY CHARTER AND TECHNICAL SCHOOLS By: Kirk Williams, Principal Date: By: Mike Brunelle, Board President Date: 8

9 EXHIBIT A MAP DEPICTION OF SITE