The Consultant shall indemnify and hold the Charter School and the Ramona Unified School District and its officers and employees harmless from and shall process and defend at its own expense all claims, demands, or suits at law or equity arising in whole or in part from the Consultant's negligence or breach of any of its obligations under this agreement; provided that nothing herein shall require a consultant to indemnify the Charter School and the Ramona Unified School District against and hold harmless the Charter School from claims, demands or suits based solely upon the conduct of the Charter School or the Ramona Unified School District, its agents, officers and employees; and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the consultant's agents or employees and (b) the Charter School or the Ramona Unified School District, its agents, officers and employees, this indemnity provision with respect to (1) claims or suits based upon such negligence (2) the costs to the Charter School or the Ramona Unified School District of defending such claims and suits shall be valid and enforceable only to the extent of the Consultant's negligence or the negligence of the Consultant's agents or employees.
This Agreement is not assignable without written consent of the parties hereto.
Consultant shall comply with all federal, state, and local laws, rules, and regulation in relation to the direct performance of the assigned duties by the Charter school.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed:
Dated: August 13th, 2001
Charter School CSMC
16054 Spangler Peak Rd. 27636 Ynez Road, L7 #100
Ramona, CA 92065 Temecula, CA 92591
As Modified on January 7, 2002
By: David A. Tarr By: Sandro Lanni
Dated ______________, 2002 Dated_______________,2002
LEASE AGREEMENT
RECITALS
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Employment Agreement - David A. Tarr
Consulting Agreement - Charter School Management Corporation
Lease Agreement - 2102 Main Street
Special Education Agreement
Employment Agreement Between
Sun Valley Charter School And David Tarr
This Agreement ("Agreement") is made and entered into as of the date fully executed by and between the Board of Directors ("Board") of the Sun Valley Charter School, a public charter school (hereinafter referred to as "SVCS" or "the Charter School") and David Tarr (hereinafter referred to as the "Executive Director").
R E C I T A L S
Whereas, SVCS is a charter school, organized and operating pursuant to the provisions of the Charter document ("Charter") and applicable law; and
Whereas, SVCS is authorized pursuant to the terms of the Charter to appoint and hire an Executive Director to serve as the principal administrator of SVCS’s operations and to carry out the duties and functions as outlined in the job description attached and incorporated to this Agreement as Attachment A and;
Whereas, SVCS desires to retain the services of the Executive Director as Executive Director of SVCS by way of this Agreement and the Executive Director is qualified to perform such duties; and
Whereas, the Executive Director and SVCS desire to formalize the employment relationship by way of this Agreement.
Now, Therefore, in consideration of the foregoing recitals and the mutual terms and conditions contained herein, the parties hereto do agree as follows:
Agreement
1. Term. SVCS hereby employs Executive Director for a period of five (5) years. At the end of each school year, the balance of the contract term is revocable at the discretion of the Board, with ninety (90) days written notice to the Executive Director.
2. Compensation. Between March 1, 2002, and August 31, 2002, the Executive Director will receive a gross base salary of two thousand dollars ($2,000.00) per month with an additional one thousand dollars ($1,000.00) per month paid as a performance incentive bonus if monthly start-up goals are met. The Monthly Start-up Goals are attached and incorporated herein as Exhibit B.
Beginning September 1, 2002, the Executive Director’s annual gross base salary will be increased to five thousand dollars ($5,000.00) per month ($60,000.00 per year) with an additional annual payment of up to $10,000 paid as an incentive bonus if yearly start-up goals are met. The yearly start-up goals are attached and incorporated herein as Exhibit C. The Executive Director’s salary will be reviewed by the Board for adjustment on an annual basis.
While the Executive Director’s salary will begin as of March 1, 2002, the Executive Director will be deemed hired as of the date of full execution of this Agreement.
3. Benefits. The Executive Director shall be afforded such benefits of employment as shall be granted to SVCS’s certificated employees, including entitlement to participation in STRS, except as otherwise set forth in this Agreement.
Medical Benefits: The Executive Director will be entitled to a $430 monthly stipend for medical benefits which may be adjusted by the Board annually.
Sick Leave: The Executive Director is entitled to five (5) days of paid sick leave per year. Paid sick leave which is not utilized may accumulate from year to year. The Executive Director may request from the Board an unpaid leave of absence to be granted or denied at the discretion of the Board. Such request must be in writing and submitted to the Board.
Vacation: The Executive Director is entitled to ten (10) days of paid vacation per year. Paid vacation which is not utilized may accumulate from year to year.
Holidays: The Executive Director is entitled to the following ten (10) paid holidays per year:
New Year's Day
Martin Luther King, Jr. Day
President's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving
Day After Thanksgiving
Christmas Eve
Christmas Day
4. Duties. The Executive Director shall perform the duties of Executive Director for SVCS as directed by the Board, prescribed by the Charter, or specified in the attached job description which is incorporated by reference as Exhibit A to this Agreement. This description may be altered from time to time by the Board.
5. Work Year. The Executive Director shall be required to work 241 days per year. By July 30 of each year, the Executive Director shall provide to the Board a work schedule listing days to be worked for the year. By June 30 of each year, an actual accounting of days worked should be submitted to the Board.
6. Executive Director And Board Responsibilities. The Executive Director shall be the chief executive officer of the Charter School. As such, the Executive Director shall have the primary responsibility for execution of Board policy, whereas the Board shall retain the primary responsibility for formulating and adopting said policy.
7. Personnel Matters. The Executive Director shall have the additional responsibility of organizing, reorganizing and arranging the administrative and supervisory staff, including instruction and business affairs, which in his judgement would best serve SVCS. The Executive Director shall have responsibility in all personnel matters, including selection of employees, subject to approval of the Board. In all personnel matters, procedures outlined in the charter or any other governing document shall be followed. The Board, individually and collectively, will refer promptly all criticisms, complaints, and suggestions called to its attention to the Executive Director for investigation, study and/or recommendations.
8. Performance Objectives. On or before May 1 of each year under this Agreement, the parties shall meet to establish the Executive Director’s performance objectives for the following school year. Said performance objectives shall be reduced to writing and shall be based on the duties and responsibilities set forth in this Agreement, the job description or any extension thereof, and any other criteria mutually agreed upon by the parties.
9. Probationary Period. The Executive Director shall serve under this Agreement in a probationary capacity for the first year of employment. During the probationary period and thereafter, the Executive Director shall satisfactorily complete each of the performance objectives described in Attachment A. During the probationary period, the Executive Director may be terminated with or without cause at the pleasure of the Board. In the event the Executive Director is terminated during the probationary period, the Executive Director will receive compensation commensurate with actual time worked and will not receive pay for any remainder of any school year. Following one (1) year of service to SVCS, the Executive Director may be disciplined or dismissed pursuant to the grounds specified in this Agreement or by law.
10. Evaluation. During the probationary period, the performance of the Executive Director shall be evaluated by the Board at least once. The evaluation shall be based on the job description and performance objectives as defined in this Agreement. Each year, the Executive Director shall submit to the Board a recommended format for that evaluation. The Board shall meet and discuss the evaluation format with the Executive Director and attempt in good faith to agree on the development and adoption of a mutually agreeable evaluation format.
Prior to May 1 of each year, under this Agreement, or any extension hereof, the Board shall evaluate the performance of the Executive Director. In the event that a majority of the members of the Board determine that the performance of the Executive Director needs improvement or is unsatisfactory, the Board shall describe in writing, in reasonable detail, said areas that need improvement or said unsatisfactory performance indicating specific instances where appropriate.
The evaluation shall include recommendations as to areas of improvement in all instances where the Board deems such to be necessary or appropriate. A copy of the written evaluation shall be delivered to the Executive Director and he shall have the right to make an oral or written response to the evaluation. Within thirty (30) days of the delivery of the written evaluation to the Executive Director, the Board shall meet with the Executive Director to discuss the evaluation.
11. Expense Reimbursement. SVCS shall reimburse the Executive Director for all documented actual and necessary expenses incurred by him within the scope of his employment in accordance with applicable SVCS policy and authorization.
12. Renewal of Agreement. This Agreement shall be extended for a period of one (1) year on the same terms and conditions set forth herein unless the Board gives the Executive Director written notice of its decision not to extend this Agreement on or before March 15 of the last school year of the Agreement. If the Executive Director decides not to renew this Agreement, the Executive Director will give the Board written notice on or before March 15 of the year in which the Agreement is in force.
13. Termination of Contract. Should the Executive Director voluntarily seek employment elsewhere during the term of this Agreement, the Executive Director shall inform the Board of his intent to do so.
Subject to the terms of the probationary period described above, this Agreement may be terminated by any of the following events:
• mutual written agreement of the parties;
• retirement, legal incapacity or death of the Executive Director;
• discharge during the probationary period;
• discharge for reasonable cause.
The bases for discharge for reasonable cause include but are not be limited to: conduct such as neglect of duty, inefficiency, breach of contract, dishonesty, discourteous treatment of the public, staff or pupils, disclosure of confidential information, various forms of misconduct, insubordination, violation of law or conviction of a crime involving moral turpitude or conviction of any felony offense, failure to possess or keep in effect the appropriate credential or any failure of good conduct tending to adversely affect SVCS.
Prior to termination (following the probationary period), the Executive Director shall be provided with a statement of charges and given an opportunity to respond orally or in writing to such charges. The Executive Director shall be entitled to appear personally before the Board to present any evidence or testimony to contest the statement of charges. If the Executive Director chooses to be accompanied by legal counsel at such meeting, the Executive Director shall bear any cost therein involved. The Executive Director shall be provided a written decision setting forth the decision of the Board. The decision of the Board shall be final and this Agreement will terminate as of the date of that decision.
During the pendency of any disciplinary proceedings, the Board reserves the right to place Executive Director on administrative leave status.
Upon termination for reasonable cause the Executive Director shall receive his proportionate compensation to the effective date of termination, along with his rights to other benefits as governed by any respective plans, programs or policies such as health benefits, etc.
14. Entire Agreement. This Agreement supersedes any and all other Agreements, either oral or in writing, between the parties hereto with respect to the subject matter hereof, and no other Agreement, statement or promise related to the subject matter of this Agreement which is not contained in this Agreement shall be valid or binding.
15. Waiver. Either party to this Agreement may specifically and expressly waive, in writing, compliance by the other party thereto with any term, condition or requirements set forth in this Agreement. Either party to this Agreement may specifically and expressly waive, in writing, any breach of any term, condition or requirement of this Agreement by the other party hereto. However, in the event that either party makes or gives such a waiver, such action shall not constitute a further or continuing waiver of any preceding or succeeding breach, or requirement of compliance with, the same or any other provision or contractual requirement, unless a specific statement to the contrary is contained with such waiver. The waiving party may, at any time thereafter, require further compliance by the other party hereto with the requirements or provisions of this Agreement that have been so waived. The consent of one party to any act by the other party for which such written consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining such written consent for the same or similar acts in the future. No waiver or consent shall be implied from the silence or from the failure of any party to act, except as otherwise specified in this Agreement.
16. Jurisdiction. The parties hereby understand and agree that this Agreement, and the attachments hereto, have been negotiated and executed in the State of California and shall be governed by, and construed under, the laws of the State of California.
17. Amendments. No addition to, or modification of, any provision contained in this Agreement shall be effective unless fully set forth in writing and signed by the authorized representative of both of the parties hereto.
18. Arbitration of Disputes. The parties agree that any dispute regarding the application, interpretation or breach of this Agreement will be subject to final and binding arbitration. Attorney’s fees, costs and damages (where appropriate) shall be awarded to the prevailing party in any dispute, and any resolution, opinion or order of Arbitrator may be entered as a judgment of the Superior Court.
19. Interpretation and Opportunity to Counsel. The parties hereto acknowledge and agree that each has been given an opportunity to independently review this Agreement with legal counsel. In the event of a controversy or dispute between the parties concerning the provisions herein, this document shall be interpreted according to the provisions herein and no presumption shall arise concerning the draftsman of such provision.
20. Severability. If any term, provision, condition or covenant of the Agreement shall, to any extent, be held invalid or unenforceable, the remainder of the Agreement, shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent provided by law.
21. Execution of Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed a duplicate original when all counterparts are executed, but all of which constitute a single instrument.
22. Signatures. In witness therein, we affix our signatures to this Agreement with the full and complete understanding of the relationship between the parties hereto.
The Governing Board of and on Behalf of the Sun Valley Charter School
DATED: February 8, 2002
By: David Sossaman
President, Governing Board
Sun Valley Charter School
DATED: February 8, 2002
David A. Tarr
Executive Director
Sun Valley Charter School
Charter School Management Corporation
CONSULTING AGREEMENT
This agreement is made and entered into this day, August 13th, 2001 by and between Sun Valley Charter School located in San Diego County, CA, hereafter referred to as "Charter School" and CSMC, located in Riverside County, CA, hereafter referred to as "Consultant".
WHEREAS, The Charter School is in need of special services and advice in financial, economic, accounting and administrative matters; and
WHEREAS, such services and advice are not available at zero cost from the public agencies; and
WHEREAS, Consultant is specially trained, experienced and competent to provide the special services required; and
NOW, THEREFORE, the parties agree to the following:
The Consultant will provide the special services and advice, and deliver the work products related thereto, as defined and agreed upon to by both parties.
The Consultant will commence providing services under this Agreement on or about July 1st, 2001, and will diligently perform as required by the Charter School. The Consultant will perform such services as an independent contractor and not as an employee of the Charter School. The Charter School will prepare and furnish to the Consultant, upon request, such information as is readily available to the Charter School and reasonably necessary for the performance of Consultant under this agreement.
The Charter School shall pay Consultant an "Analysis and Setup Fee" retainer of $7500.00, upon receipt of funds from the revolving loan, for such work as Charter Petition review, annual budget/ business plan setup, operational plan setup, payroll setup, and all other business, financial, and operational programs necessary to maintain auditable status. Ongoing advice, financial plans and consulting, and meetings with local officials shall be included in the "Analysis and Setup Fee." In addition, the Charter School wishes to contract for a two year period commencing on or about August 1st, 2002 for regular Consultant services covering all aspects related to business, financial, operational, and human resource issues for a monthly fee of $2000.00.
These services include:
All Budget preparation.
Application for Revolving Loan.
Application for Charter Number and CDS code.
Setup of Fiscal Control Policies and Procedures.
Setup and assistance for administration of H.R. - including payroll.
Interface when necessary with District, County, and State in matters relating to fiscal affairs, reporting, audits, accountability.
Attendance accounting and reporting controls.
All accounting services - including establishing chart of accounts. (SACS)
Setup of banking relationships.
Other miscellaneous charter management needs as they occur in the course of a Charter's operation.
Preparation for annual audit.
This agreement can be terminated at any time only by the mutual written consent of both parties. All services performed shall be payable only upon the successful granting of Sun Valley's charter - within One year of the execution of this agreement. If the charter is not approved within this period, the Charter is not responsible for payment of any of Consultants services. The filing of bankruptcy, or otherwise dissolution of either party shall automatically terminate this agreement.
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This Lease Agreement ("Agreement") is made by and between Boardwalk LLC ("Lessor") and Sun Valley Charter School, Inc. ("Lessee" or "Charter School"), a California public charter school, (collectively "the parties") with regard to the following representations and assumptions:
a. Lessor is the sole owner of the premises described in Section [2] of this Agreement, which is suitable for a school program and desires to lease the subject premises to the Lessee.
b. Lessee is a charter school duly formed under the laws of the Charter School Act of 1992 (Education Code § 47600 et seq.) and desires to lease premises from Lessor for use in an educational program as described in the Charter attached to this Agreement as Exhibit "A."
c. The parties desire to enter into a lease agreement defining their rights, duties, and liabilities relating to the premises. In consideration of mutual covenants contained herein, the parties agree as follows:
LEASE AGREEMENT
1. PREMISES. Lessee hereby leases from Lessor the facility located at 2102 Main Street, Ramona, County of San Diego, in the State of California, including approximately 11,000 square feet of the building, including classrooms, restrooms, office space, and staff space, (hereinafter "Premises"). A legal description of the Premises is attached to this Lease as Exhibit "B" and is incorporated by reference herein. It is acknowledged that Lessee intends to use premises as an educational facility as described in the Charter attached as Exhibit "A."
a. Changes to Premises. Lessor reserves the right from time to time:
(1) To install, use, maintain, repair, and replace pipes, ducts, conduits, wires and appurtenant meters and equipment for service to the Premises above the ceiling surfaces, below the floor surfaces, within the walls and central core areas, and to relocate any pipes, ducts, conduits, wires, and appurtenant meters and equipment included in the Premises;
(2) To make changes to the Premises, including, without limitation, changes in the location, size, shape, and number of driveways, lobbies, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways; and
b. Lessor’s Employees, Contractors and Independent Contractors. Lessor acknowledges that Lessee is a public charter school leasing the Premises for public education purposes as set forth in the Charter attached to this Agreement as Exhibit "A." Lessor therefore agrees that any of its employees, agents, contractors or independent contractors utilized to perform any of the repairs pursuant to this Section [2] or in Sections [10], [11] and [17] that may have contact with Lessee’s pupils will undergo Criminal Background checks as specified in California Education Code Section 44237 and California Education Code Section 45125.1 or any other applicable law addressing third party access to Lessee’s minor students for any person entering the premises for the above stated purposes who will be in contact with the Lessee’s minor pupils.
2. TERM . The term of this Lease ("Lease Term") shall be for 24.5 months, commencing on June 15, 2002 ("Commencement Date") and ending on June 30, 2004 ("Termination Date").
3. USE OF PREMISES. The Premises shall be used exclusively by the Lessee for the operation of a charter school, as authorized by California Education Code of the State of California.
4. RENT. For consideration for entering into this Agreement, Lessee agrees to pay $80,002.00 for the period commencing June 15, 2002 through June 30, 2003, payable in monthly installments of $6,154.00 per month ("Base Monthly Rent"). On or before the first day of each calendar month during the term from June 15, 2002 through June 30, 2003, Lessee shall pay to Lessor, as monthly rent for the premises, the Base Monthly Rent of $6,154.00. The Base Monthly Rent shall be paid to Lessor in advance without notice, demand, deduction, or offset unless otherwise provided in this Agreement. Lessee further agrees to pay $160,008.00 for the period commencing July 1, 2003 through June 30, 2004, payable in monthly installments of $13,334.00 per month ("Base Monthly Rent"). On or before the first day of each calendar month during the term from July 1, 2003 through June 30, 2004, Lessee shall pay to Lessor, as monthly rent for the premises, the Base Monthly Rent of $13,334.00. The Base Monthly Rent shall be paid to Lessor in advance without notice, demand, deduction, or offset unless otherwise provided in this Agreement.
5. LESSOR’S DELIVERY OF POSSESSION. Lessor agrees that if Lessor is unable to deliver possession of the Premises, for any reason other than Lessee’s delay, to Lessee on the Commencement Date specified in Section [2], Lessee shall, at Lessee’s discretion, be entitled to either: (1) an abatement in rent proportionate to the amount of days from the Commencement date to actual delivery; or (2) abandonment of this Agreement and all obligations under this Agreement.
6. RIGHT OF FIRST REFUSAL. In consideration of performance of the covenants set forth in this Agreement and of the rent payments paid pursuant to this Agreement and subject to the conditions set forth below, Lessor hereby grants to Lessee the right of first refusal with respect to any sale of all or any part of the Premises owned by Lessor and described in Exhibit "B" attached to this Agreement. This right shall continue for the term of this Agreement as set forth in Section [2] of this Agreement.
a. Notice of Acceptable Offer. If at any time or times during the term of this right of first refusal, Lessor receives an offer acceptable ("Acceptable Offer") to Lessor for the purchase of all or a part of the Premises, Lessor shall forward a copy of such offer to Lessee.
b. Exercise by Lessee. Lessee shall have a period of thirty (30) days after receiving such copy of the Acceptable Offer within which to notify Lessor that Lessee elects to purchase the Premises (or the portion thereof covered by the acceptable offer). Any such notice from Lessee shall be accompanied by any earnest money required under the terms of the Acceptable Offer and shall then constitute a contract between Lessee and Lessor. A sale of Premises to other than Lessee shall be subject to this Agreement.
c. Waiver by Lessee. If Lessee does not notify Lessor within the thirty (30) day period mentioned in this Section [6] (b) of Lessee’s election to purchase such property, Lessor shall be free to sell the Premises to the person submitting the acceptable offer on the terms specified therein
d. Notices. Any notice required or permitted to be given under this Section [6] shall be in writing and shall be deemed given upon personal delivery or on the second business day after mailing by registered or certified United States mail, postage prepaid, to the appropriate party at its address stated in Section [25][e] of this Agreement setting forth parties to be notified.
7. TAXES. The term "Real Property Taxes" shall include any form of assessment, license, fee, license tax, business license fee, commercial rental tax, levy, charge, penalty, tax or similar imposition, imposed by any authority having the direct power to tax, including any city, county, state, or federal government, or any school, agricultural, lighting, drainage, or other improvement or special assessment district thereof, as against any legal or equitable interest of Lessor in the Premises.
a. Property Taxes. Lessor and Lessee recognize that as long as the use of Premises is for educational purposes, Lessor may claim an exemption from property taxes for any and all space leased by Lessee. Lessor’s exemption claim form is attached hereto as Exhibit "C". Pursuant to Revenue and Taxation Code section 202.2, any and all reduction or refund in property taxes shall inure to the benefit of Lessee. This benefit to Lessee is reflected in the terms of this Agreement. If at any time Lessor does not claim the exemption available on Premises, Lessee pursuant to Revenue and Taxation Code section 5096, may file a claim of refund.
b. Personal Taxes . Lessee shall pay, or cause to be paid, before delinquency any and all taxes levied or assessed and which become payable during the term hereof upon all Lessee’s leasehold improvements, equipment, furniture, fixtures, and any other personal property located in the Premises.
8. COMPLIANCE WITH LAW. Lessee shall not use the Premises, or permit anything to be done in or about the Premises, which will in any way conflict with any law, statute, applicable ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Lessor and Lessee shall each do all acts required to comply with all applicable laws, applicable ordinances, regulations and rules of any authority relating to their respective maintenance obligations as set forth herein. Any cost associated with compliance shall be paid by the Lessor.
9. MAINTENANCE AND REPAIR. Lessee shall provide usual and customary care to the Premises including custodial and maintenance. Lessee shall be responsible for any repairs or replacements, excepting normal wear and tear, which are the result of or made necessary by Lessee’s use of the Premises or its agents or its employees. Lessee shall not be responsible for damage to the Premises resulting from natural disaster or act of God or the elements.
10. DESTRUCTION OR PARTIAL DESTRUCTION OF PREMISES In the event the Premises are damaged by fire or other perils covered by insurance, Lessor agrees to forthwith repair same, and this Agreement shall remain in full force and effect, except that Lessee shall be entitled to a proportionate abatement of the Base Monthly Rent set forth in Section [4] of this Agreement from the date of damage and while such repairs are being made.
In the event the Premises are damaged as a result of any cause other than the perils covered by insurance, then Lessor shall forthwith repair the same, provided the extent of the destruction be less than ten (10%) percent of the then full replacement cost of the Premises. In the event the destruction of the Premises is to an extent of ten (10%) percent or more of the full replacement cost then Lessor shall have the option: (1) to repair or restore such damage, this Agreement continuing in full force and effect, but the Base Monthly Rent to be proportionately abated as hereinabove in this Section [10]; or (2) give notice to Lessee at any time within sixty (60) days after such damage, terminating this Agreement as of the date specified in such notice, which date shall be no less than thirty (30) days after the giving of such notice. In the event of giving such notice, this Agreement shall expire and all interest of the Lessee in the Premises shall terminate on the date so specified in such notice and the Base Monthly Rent, reduced by a proportionate reduction, based upon the extent, if any, to which damage interfered with the business carried on by the Lessee in the Premises, shall be paid up to date of said such termination.
11. INSPECTION BY LESSOR. Lessor reserves and shall in any emergency have the right to enter the Premises to inspect the same, to submit following a mutually agreeable time, said Premises to prospective purchasers or Lessees, to post notices of non-responsibility, to repair the Premises and any portion of the Premises of which the Premises are a part that Lessor may deem necessary or desirable and may for that purpose erect scaffolding and other necessary structures where reasonably required by the character of the work to be performed, always providing that the entrance to the Premises shall not be blocked thereby for any reason, and further providing that the educational program of the Lessee shall not be interfered with for any reason. Lessor acknowledges that the Lessee has records of a confidential nature and Lessor and its agents shall refrain from disturbing such records for any reason.
Lessor agrees that Lessor will submit before entry the necessary documentation to the California Department of Justice as required by California Education Code § 45125.1 or any other applicable law addressing third party access to Lessee’s minor students for any person entering the premises for the above stated purposes who will be in contact with the Lessee’s minor pupils.
12. DEFAULT BY LESSEE. The occurrence of any one or more of the following events shall constitute a default and breach of this Agreement by Lessee.
a. The vacating or abandonment of the Premises by Lessee before the expiration of the Agreement term set forth in Section [3] of this Agreement;
b. The failure by Lessee to make any payment of rent or any other payment required under Section [4] of this Agreement to be made by Lessee hereunder, as and when due, where such failure shall continue for a period of twenty (20) days after written notice thereof by Lessor to Lessee.
c. The failure by Lessee to observe or perform any of the express covenants, conditions or provisions of this Agreement to be observed or performed by the Lessee, other than described in Section [12][b], where such failure shall continue for a period of thirty (30) days after written notice hereof by Lessor to Lessee; provided, however, that if the nature of Lessee's default is such that more than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commences such cure within said thirty (30) days period and thereafter diligently prosecutes such cure to completion.
In the event of any material default or breach by Lessee, Lessor may at any time thereafter, in its sole discretion, with written notice or demand and without limiting Lessor in the exercise of a right or remedy which Lessor may have by reason of such default or breach:
a. Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Agreement shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. Upon termination of this Agreement or of Lessee’s right to possession, pursuant to applicable law, Lessor has the right to recover from Lessee (i) the worth of the amount of unpaid rent that had been earned at the time of such termination; (ii) the worth of the amount of unpaid rent that would have been earned after the date of such termination until the time of award exceeds the amount of such rental loss that the Lessor proves could be reasonably avoided or six (6) months worth of unpaid rent, whichever is less; and (iii) any other amount, including reasonable court, attorney, and collection costs, costs and expenses incurred in re-letting all of any part of the Premises, including, but not limited to, brokers fees and commissions, and the costs of repairs necessary to re-let all or any portion of the Premises necessary to compensate Lessor for all detriment proximately caused by Lessee’s default. Such costs shall not include costs normally paid for by a new Lessee and in no case shall include costs beyond restoring the Premises to a vanilla shell. In the event Lessor elects not to terminate the Agreement but takes legal action to collect any sums due hereunder, Lessor shall be entitled to reasonable attorney fees and costs associated with any and all successful collection action(s). Unpaid installments of rent or other sums shall bear interest from the date due at the minimum legal rate; or
b. Maintain Lessee's right to possession, in which case this Agreement shall continue in effect whether or not Lessee shall have abandoned the Premises. In such event Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Agreement, including the right to recover the rent and any other charges and Adjustments as may become due hereunder.
13. DEFAULT BY LESSOR. Lessor shall be in default if Lessor fails to perform any express or implied obligation required by this Agreement within a reasonable time, but in no event later than thirty (30) days after notice by Lessee to Lessor specifying wherein Lessor has failed to perform such obligation; provided, however, that if the nature of Lessor's obligation is such that more than thirty (30) days are required for performance, then Lessor shall not be in default if Lessor commences performance within such thirty (30) day period and thereafter diligently pursues the same to completion, which completion shall be not more than ninety (90) days after such written notice. In the event of any such default or breach by Lessor, Lessee may, without limiting Lessee in the exercise of any right or remedy at law or in equity which Lessee may have by reasons of such default or breach, perform work as would have been done by Lessor, applying the cost for such work as an offset to the Base Monthly Rent payment along with adequate evidence of costs incurred. In the event Lessee takes legal action to enforce its rights under the Agreement, Lessee shall be entitled to reasonable attorney fees and costs associated with any successful legal action.
14. QUIET ENJOYMENT. Lessor warrants that Lessee, so long as no event of default has occurred and is then continuing under this Agreement, shall have peaceful possession and quiet enjoyment of the Premises during the term of this Agreement, and that Lessee may use the same for a charter school or for any related purposes. Lessee’s use of the Premises shall not violate any applicable ordinance, law, or regulations of any Governmental Authority.
15. TERMINATION
a. Loss of Charter or Decrease in Student Enrollment. Upon written notice to Lessor given not later than thirty (30) days prior to the end of any fiscal year of Lessee, Lessee may terminate this Agreement in its entirety if Lessee fails to appropriate funds for the subsequent year’s rental payment(s) because (1) Lessee suffers revocation of its charter from its granting authority or (2) Lessee suffers a loss on student enrollment of thirty (30) percent or more. Lessee shall exercise reasonable efforts to appropriate funds from any of its legally available sources. Upon termination of the Agreement due to Lessee’s failure to budget and appropriate funds, Lessee, at its expense, shall redeliver the premises to the Lessor in as good as condition as when received, normal wear and tear excepted.
b. Destruction of Premises. In the event of destruction or partial destruction as described in Section [10] of the leased Premises, Lessee shall be entitled, at its election, to terminate the Agreement and all liability of Lessee for rent accruing subsequent to the date of destruction shall cease.
c. Eminent Domain. If more than twenty-five (25%) percent of the Premises shall be taken or appropriated by any public or quasi-public authority under the power of eminent domain, either party hereto shall have the right, at its option, within thirty (30) days after said taking, to terminate this Agreement upon thirty (30) days written notice. If either less than or more than twenty-five (25%) percent of the Premises are taken (and neither party elects to terminate as herein provided), the Base Monthly Rent thereafter to be paid shall be equitably reduced.
16. UTILITIES. Lessor agrees to furnish or cause to be furnished to the premises the utilities and services described below. Lessor’s failure to furnish or cause to be furnished any of the foregoing items when such failure is caused by (1) acts of God, accident, breakage or repairs; (2) strikes, lockouts, or other labor disturbance or labor dispute of any kind; (3) any laws, rules, orders, ordinances, directions, regulations, requirements, or any other action by federal, state, county or municipal authority; (4) inability despite the exercise of reasonable diligence by Lessor to obtain electricity, water, or fuel; or (5) any other unavoidable delay, shall not cause Lessor to be in default and shall not result in any liability of Lessor.
a. Heating, Air Conditioning, Ventilation ("HVAC"). Lessor shall provide HVAC, ventilation, and heating to the Premises. Lessor agrees to abide with all reasonable rules Lessor may prescribe for the efficient and safe use of the air conditioning system.
b. Electricity. Lessor shall provide to the Premises electric current as required by the Building standard office lighting and fractional horsepower office business machines in an amount sufficient for use of the Premises as an educational facility.
Water. Lessor shall provide water for drinking and lavatory purposes.
Cable Service. Lessor shall provide to the Premises coaxial cable service connected to Cox Cable Network.
Lessee shall pay for gas, heat, light, power, telephone service and all other services and utilities supplied by Lessor to the Premises and not directly metered to Lessee.
17. CONDITION OF PREMISES. Lessor agrees that the Premises shall remain tenantable throughout the Lease Term specified in Section [2] of this Agreement. Lessor shall ensure that:
a. The Premises are weather protected with effective waterproofing and weatherproofing of roof and exterior walls, including unbroken windows and doors;
b. The Premises are equipped with plumbing and gas facilities that conform to state and local law at the time of installation and are in good working order;
c. The premises are equipped with a water supply approved under applicable law, which is under the control of the Lessee, capable of producing hot or cold running water, or a system that is under the control of the Lessor, which produces hot or cold running water and connected to a sewage disposal system approved under applicable law;
d. The Premises have heating facilities that conformed with applicable law at the time of installation, maintained in good working order.
e. The Premises have electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order;
f. The Premises, common areas, and appurtenances are clean and sanitary and free from all accumulations of debris, filth, rubbish, garbage, rodents and vermin, and all areas under control of the Lessor are free of accumulations of debris, filth, rubbish, garbage, rodents and vermin;
g. The Premises are equipped with an adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the Commencement Date provided for in Section [2] of this Agreement, with Lessee providing appropriate serviceable receptacles thereafter, and being responsible for the clean condition and good repair of such receptacles under Lessor’s control
h. That all floors, stairways, and railings are maintained in good repair.
18. ALTERATIONS. Lessee shall not make or allow to be made any alterations, additions or improvements to or of the Premises or any part thereof without first obtaining the consent of Lessor. In the event Lessor consents to the making of any alterations, additions or improvements to the Premises by Lessee, the same shall be made by Lessee at Lessee's sole cost and expense unless otherwise agreed.
Any alteration, additions or improvements to or of the Premises or any part thereof after the Commencement Date, unless otherwise agreed, shall be designed, installed, constructed and completed by Lessee at Lessee's sole cost and expense with reference to the requirements of and in full compliance with the ADA. On and after the Commencement Date of this Agreement, Lessee, at Lessee's sole cost and expense, shall promptly make any and all alterations, improvements, additions and/or repairs (whether structural or nonstructural) to the Premises from time to time necessary to bring the Premises and the use thereof by Lessee in compliance with the ADA, provided these requirements are a direct result of Lessee’s conduct within the Premises after commencement, subject to Lessor's approval and other rights of Lessor provided in this Agreement.
19. ASSIGNMENT. Lessee shall not either voluntarily, or by operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Agreement or any interest therein, and shall not sublet the Premises or any part thereof, or any right or privilege thereto or allow any other person (the employees, agents, servants, and invitees of Lessee excepted) to occupy or use the Premises, or any portion thereof, without first obtaining the written consent of Lessor, which consent shall not be unreasonably withheld. A consent to one assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Any such assignment or subletting without such consent shall be void, and shall, at the option of the Lessor, constitute a default under the terms of this Agreement.
If at any time during the term of this Agreement, Lessee desires to assign this Agreement or sublet all or any part of the Premises, Lessee shall give Lessor notice setting forth the terms and provisions of the proposed assignment or sublease, and the identity of the proposed assignee or sublessee. Lessee shall provide Lessor with any information that Lessor may reasonably request. Lessor shall then have twenty (20) days after Lessee’s notice is given to either sublet at the rental and on the other terms set forth in this Agreement for the term set forth in this Agreement for the term set forth in Lessee’s notice, or, in the case of an assignment, to terminate this Agreement. If Lessor does not exercise such option, Lessee may assign the Agreement or sublet the Premises to such proposed assignee or sublessee.
20. INDEMNIFICATION. Lessee shall indemnify and hold harmless Lessor against and from any and all claims arising from Lessee's use of the Premises or from the conduct of its business or from any activity, work, or other things done, permitted or suffered by the Lessee in or about the Premises, and shall further indemnify and hold harmless Lessor against and from any and all claims arising from any breach or default in the performance of any obligation on Lessee's part to be performed under the terms of this Agreement, or arising from any act or negligence of the Lessee, or any officer, agent, employee, guest, or invitee of Lessee, and from all costs, attorney's fees, and liabilities incurred in or about the defense of any such claim or any action or proceeding brought thereon and in case any action or proceeding is brought against Lessor by reason of such claim, Lessee upon notice from Lessor shall defend the same at Lessee's expense. Lessee shall give prompt notice to Lessor in case of casualty or accidents in the Premises.
Lessee shall indemnify, defend and hold harmless Lessor from and against any and all losses, costs, damages, suits, claims, causes of action, liabilities, and expenses incurred by Lessor arising from Lessee's failure to cause the Premises or Lessee's use of and operations on the Premises to comply with and satisfy the requirements and provisions of the Americans with Disabilities Act ("ADA").
Lessor shall indemnify and hold Lessee harmless from and defend Lessee against any and all claims of liability for any injury, death, or damage to any person or property occurring in, on or about the Premises when such injury, death or damage is caused in part or in whole by the act, neglect, fault or omission of any duty with respect to the same by Lessor, its agents, contractors, employees or invitees. Lessor shall further indemnify and hold Lessee harmless from and against any and all claims arising from any breach or default in the performance of any obligation on Lessor's part to be performed under the terms of this Agreement, or arising from any act or negligence of Lessor, or any of its agents, contractors, employees and from and against all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon.
INSURANCE. Commencing as of the delivery of the Premises to Lessee and continuing during the Term, Lessee shall, at its sole cost and expense, procure, pay for and keep in full force and effect for Lessor’s benefit the following types of insurance:
a. Lessee’s Liability Insurance. Comprehensive general liability insurance with coverage limits in the amounts required by Lessor’s Lender for bodily injury, personal injury, death, hazard and property damage liability, insuring against any and all liability of the insureds with respect to the Premises or arising out of the operations, use, occupancy and maintenance of the Premises.
b. Lessee’s Workers Compensation Insurance. Workers Compensation Coverage is required by law, together with employer liability coverage.
c. Policy Requirements. All policies of insurance required to be carried by Lessee pursuant to subsections (a) and (b) of this Section shall be written by responsible insurance companies authorized to do business in the State of California. Lessee may provide this insurance under a blanket policy, provided that said insurance shall have a Lessor's protective liability endorsement attached thereto. Lessee shall deliver to Lessor, prior to right of entry and upon renewals, copies of policies of liability insurance required herein or a Certificate of Insurance evidencing the existence and amounts of such insurance and containing the provisions specified herein, with loss payable clauses satisfactory to Lessor. The limit of any such insurance shall not, however, limit the liability of the Lessee hereunder. The proceeds from any such insurance must be used by Lessee to restore or replace any such trade fixtures, equipment and merchandise in the Premises.
22. LIENS. Lessee shall keep the Premises and the Property in which the Premises are situated free from any liens arising out of any work performed, materials furnished or obligations incurred by or on behalf of Lessee.
23. HOLDING OVER. If Tenant remains in possession of the Premises or any part thereof after the expiration of the Term hereof with the express written consent of Landlord, such occupancy shall be a tenancy from month to month at a rental rate in the amount of the last Monthly Base Monthly Rent, plus all other charges payable hereunder, and upon all the terms hereof applicable to a month to month tenancy.
24. GENERAL PROVISIONS.
a. Waiver. The waiver by Lessor and Lessee of any term, covenant or condition herein contained shall not be deemed to a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Lessor or payment of rent by Lessee shall not be deemed to be a waiver or any preceding default by Lessee or Lessor of any term, covenant or condition of this Agreement, other than the failure of the Lessee to pay the particular rental so accepted, regardless of Lessor's knowledge of such preceding default at the time of the acceptance of such rent.
b. Marginal Headings. The marginal headings and article titles to the articles of this Agreement are not a part of the Agreement and shall have no effect upon the construction or interpretation of any part hereof.
c. Successors and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply and bind the heirs, successors, executors, administrators and assigns of the parties hereto.
d. Prior Agreements. This Agreement contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Agreement, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose. No provision of this Agreement may be amended or added to except by an agreement in writing signed by the parties hereto to their respective successors in interest. This Agreement shall not be effective or binding on any party until fully executed by both parties hereto.
e. Severability. Any provision of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, impair or invalidate any other provision hereof and such other provision shall remain in full force and effect.
f. Choice of Law. This Agreement is subject to the laws and jurisdiction of the State of California. In the event that any court action should be brought in conjunction with this Agreement, it shall be subject to interpretation under the laws of the State of California.
e. Notices. All notices and demands which may or are to be required or permitted to be given by either party on the other hereunder shall be in writing. All notices and demands by the Lessor to the Lessee shall be sent by United States Mail, postage prepaid, addressed to the Lessee at the Premises, and to the address herein below, or to such other place as Lessee may from time to time designate in a notice to the Lessor. All notices and demands by the Lessee to the Lessor shall be sent by United States Mail, postage prepaid, addressed to the Lessor at the address set forth herein, and to such other person or place as the Lessor may from time to time designate in a notice to the Lessee.
To Lessor at:
1306 Main St.
Ramona, CA 92065
To Lessee at:
16054 Spangler Peak Rd.
Ramona, CA 92065
LESSOR AND LESSEE have signed this Agreement on the dates set forth below.
Date: March 8, 2002 Date: March 8, 2002
LESSOR: Boardwalk LLC LESSEE: Sun Valley Charter School, Inc.
This is an agreement between the Ramona Unified School District (“District”) and Sun Valley Charter School (“Charter School”) to further implement the delivery of special education services to children enrolled in the charter school.
1. It is agreed that this agreement covers only the delivery of special education services under IDEA and does not cover services or accommodations required under Section 504 of the Rehabilitation Act nor under the Americans with Disabilities Act. More specifically, this agreement has the purpose of clarifying the roles and responsibilities of the parties with regard to students who are enrolled and attend the charter school and are or may be eligible for special education and related services under IDEA. The District's designated representative shall be the Superintendent and shall have the authority on behalf of the District. The Charter School shall designate a representative in writing on an annual basis and this representative shall have the authority to act on behalf of the charter school.
2. This agreement is intended to implement the terms of the existing MOU between the parties and does not act to supercede existing terms of that MOU. For the purposes and term of this agreement only, the parties agree that the Charter School is not an independent local education agency.
3. The Charter school has the responsibility to make referrals of any students enrolled in the charter school who are believed to be eligible for special education assessment and/or services. Prior to making such referral, charter school shall conduct a Student Study Team to determine if alternative interventions are appropriate. A copy of all referrals shall be immediately delivered to the District Superintendent or designee. Prior to making the referral, charter school shall consult with the District Superintendent. Charter school staff shall attend any in-service offered by District or SELPA on the referral system and criteria. Enrolling students must agree to release their cumulative files to the District as part of the enrollment process. The Charter School shall provide copies of such files to the District within ten (10) days of receipt of such records.
4. The District will determine what assessments, if any, are necessary and arrange for such assessments for all referred students, for annual assessments and for tri-annual assessments. The District shall consult with the designated representative of the Charter School prior to offering assessments conducted by individuals outside of the District or the SELPA. Charter school shall not conduct unilateral independent assessments without prior written approval from the District. The Charter School shall facilitate the conduct of District assessments as necessary. The Charter School shall pay all costs associated with initial assessments for those students not currently special education qualified and shall pay all costs associated with any assessments conducted without the District’s written approval.
5. The District shall be responsible for arranging the necessary IEP meetings. The Charter school shall be responsible for having the student’s teacher and designated representative of Charter School (they may be one and the same) in attendance at the IEP meetings in addition to representatives who are knowledgeable about the regular education program at the charter school. District responsibility shall include documentation of the IEP meeting and provision of parent rights.
6. Decisions regarding eligibility, goals/objectives, program, placement and exit from special education shall be the decision of the IEP team. Team membership shall be in compliance with state and federal law and shall include the designated representative of the Charter School (or designee) and the designated representative of the District (or designee). Services and placements shall be provided to all eligible charter school students in accordance with the policies, procedures and requirements of the District and of the Local Plan for Special Education.
7. For students who enroll in the charter school with a current IEP, it is the responsibility of the charter school to implement the existing IEP to the extent possible and to notify the District immediately. For such students who were previously enrolled in the District, the District agrees to forward the student's cumulative file including all special education files to charter school within 10 days. In addition, the District will provide consultative assistance to charter school to help transition the student.
8. It is understood and agreed that all children will have access to charter school and no student shall be denied admission nor counseled out of the charter school due to disability. It is agreed that the Charter School shall include and consult with the District during the admission and evaluation process for purposes of identifying eligibility for special education services. The Charter School agrees to follow all SELPA policies and timeframes as relates to its obligations under this Agreement.
9. To the extent that the agreed upon IEP requires educational or related services to be delivered by staff other than the Charter School staff, the District shall provide and/or arrange for such services in the same manner as it provides services to students in its other District schools. District services shall include consultative services by District staff to charter school staff. The Charter school shall not unilaterally authorize any program or services without prior consent of the District.
10. Parent/Guardian concerns regarding special education services, related services and rights shall be directed by Charter School staff to the designated representative of the District. The District representative in consultation with the Charter School designated representative shall respond to and address the parent/guardian concerns.
11. Complaints: In consultation with charter school, the District shall address/respond/investigate all complaints received under the Uniform Complaint procedure involving special education.
12. Due Process Hearings: In consultation with charter school, the District may initiate a due process hearing on behalf of a student enrolled in the Charter School as the District determines is legally necessary to meet a school agencies responsibilities under federal and state law. In the event that parents/guardians file for a due process hearing, both the Charter School and the District shall be named respondents. The District and Charter School shall work together to defend the case. In the event that the District determines that legal counsel representation is needed, the District/Charter School shall be jointly represented by legal counsel, unless there is a conflict of interest.
13. As part of his District representation duties at all SELPA meetings, the District Superintendent shall represent the Charter School. Reports to the Charter School regarding SELPA decisions policies etc. shall be communicated to Charter School as they are to all other schools within the District. To the extent that the District and/or SELPA provide training opportunities and/or information re special education to site staff, such opportunities/information shall be made available to charter school staff. To the extent that site staff have the opportunity to participate in committee meetings of the SELPA as representatives of their district, such opportunities shall be made available to Charter School staff.
14. Parents of charter school students shall have the opportunity to participate in the CAC to the same extent as parents of students enrolled in the District.
15. Finance: The District shall retain all revenue which is generated by charter school for the delivery of special education and related services and shall be responsible for the financial costs of services and responsibilities as set forth above. On an annual basis, the District shall determine what excess cost contribution shall be made by the Charter School to the District for the service of students who reside within the District. An update shall be provided semi-annually by the District to the Charter School. The Charter School shall make payment beginning on October 1 on a monthly basis for excess cost contribution charges for the current school year based upon District and Charter School estimates for enrollment and the prior year Program Cost Report unless otherwise agreed by the parties. At the end of the fiscal year, the pro-rata share shall be calculated based upon actual numbers and an adjustment shall be given to the District or Charter School as applicable. The excess cost contribution shall be determined as follows:
To the extent that district-wide (including Charter School students who reside within the District), special education and related services costs exceed District-wide (including Charter School) special education funding, the excess cost as shown on the Annual Program Cost Report shall be charged to the Charter School on a prorated basis. The proration shall be based on the number of students who reside within the District enrolled at the Charter School compared to District-wide enrollment. The numbers and calculations shall be reviewed with the Charter School upon request and shall be determined at the end of the fiscal year.
16. Special Day Student: In the event a student in the Charter School requires a special day class, the Charter School shall transfer to the District all ADA apportionment attributable to that student. Additionally, the Charter School shall pay excess costs pursuant to Number 15 or Number 17 of this Agreement as determined by the residence of the pupil.
17. Students Who Reside Outside of the District: To the extent the Charter School enrolls any student who resides outside the District, the Charter School shall be responsible for all costs above and beyond revenue which is generated by charter school for the delivery of special education and related services or the provision of services to those pupils by the District.
18. Risk Pooling: To the extent the District participates in any risk pooling arrangement offered through the SELPA, the Charter School students shall access such arrangement through the District in the same manner as other students of the District
19. Services shall be provided to Charter School students at locations to be determined by the District.
