HomeMy WebLinkAboutCC AG PKT 2008-09-08 #IAGENDA STAFF REPORT
DATE: September 8, 2008
TO: Honorable Mayor and City Council
THRU: David Carmany, City Manager
FROM: Patrick Importuna, Assistant City Manager
Andrew J. Tse, Personnel Manager
SUBJECT: APPROVE MASTER JOINT-USE AGREEMENT
WITH THE LOS ALAMITOS UNIFIED SCHOOL
DISTRICT
SUMMARY OF REQUEST:
Staff is requesting City Council approval of the Master Joint-Use Agreement for
Use of Shared Sites with the Los Alamitos Unified School District.
BACKGROUND:
The City of Seal Beach and the Los Alamitos Unified School District shares
certain properties for general educational and recreational programs. The
approval of this agreement memorializes the shared use of these facilities which
include the McGaugh Pool, McGaugh Gymnasium, McGaugh Field, McGaugh
Tennis Courts, and the Seal Beach Tennis Center, and sets forth procedures,
cost sharing, and mutual indemnification clauses for the City and the School
District.
FINANCIAL IMPACT:
The fiscal impact is budgeted at $78,000 per fiscal year.
RECOMMENDATION:
It is recommended that the City Council. adopt Resolution No. 5785 authorizing
approving the Master Joint-Use Agreement for Use of Shared Sites with the Los
Alamitos Unified School District.
SUBMITTED BAY:
Gy .
Patrick Import anager's Office
NOTED AND APPROVED:
~~
David Carmany, City Manager
Attachments:
A. Resolution No. 5785
B. Master Joint-Use Agreement
Agenda Item
RESOLUTION NUMBER 5785
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL
BEACH, CALIFORNIA APPROVING THE MASTER JOINT-USE
AGREEMENT FOR USE OF SHARED SITES BETWEEN THE
CITY OF SEAL BEACH AND THE LOS ALAMITOS SCHOOL
DISTRICT
WHEREAS, the City of Seal Beach and the Los Alamitos School District shares
certain properties for general educational and recreational programs; and
WHEREAS, the approval of this agreement memorializes the shared use of
these facilities which include the McGaugh Pool, McGaugh Gymnasium,
McGaugh Field, McGaugh Tennis Courts; and the Seal Beach Tennis Center;
and
WHEREAS, the agreement sets forth procedures, cost sharing, and mutual
indemnification clauses for the City and the School District.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SEAL BEACH
DOES HEREBY RESOLVE:
Section 1. The Master Joint Use Agreement for the Use of Shared Sites
between the City of Seal Beach and the Los Alamitos School District is
approved.
SECTION 2. The Council hereby authorizes the City Manger to execute the
contract on behalf of the City.
PASSED, APPROVED AND ADOPTED by the City Council of Seal Beach, at a
meeting hereof held on the 8th day of September , 2008 by the following vote:
AYES: COUNCILMEMBERS
NOES: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS
ABSTAIN: COUNCILMEMBERS
ATTEST:
Mayor
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of Seal Beach, California, do hereby certify that the
foregoing resolution is the original copy of Resolution Number 5785 on file in
the office of the City Clerk, passed, approved, and adopted by the City Council of
the City of Seal Beach, at a regular meeting thereof held on the 8th day
of September , 2008.
City Clerk
MASTER JOINT USE AGREEMENT
FOR USE OF SHARED SITES
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
Los Alamitos Unified School District
10293 Bloomfield Street
Los Alamitos, CA 90720
(562) 799-4700
THIS MASTER JOINT-USE AGREEMENT FOR USE OF SHARED SITES
("Agreement") is made as of the day of , 2008 (the "Effective Date") by and
between the LOS ALAMITOS UNIFIED SCHOOL DISTRICT ("District"), a California
public school district duly organized and existing under Chapter 1 of Division 3 of Title 2 of the
California Education Code and the CITY OF SEAL BEACH, a California charter city ("City").
Collectively, the District and the City shall be referred to herein as the "Parties" and individually
as a "Party".
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RECITALS
A. WHEREAS, California Education Code Section 10900 et seg. authorizes and
empowers school districts to cooperate with public agencies in organizing, promoting, and
conducting joint programs of recreation as well as education; and
B. WHEREAS, California Government Code Section 6500 et sue,. (the "Joint
Powers Law") provides that two or more public agencies may, by agreement, jointly exercise any
power common to the contracting parties; and
C. WHEREAS, pursuant to the Joint Powers Law, the District and the City are each
a public agency and are authorized and empowered to contract for the joint exercise of powers;
and
D. WHEREAS, the District wishes to share with the City the use of District owned
property for such general educational and recreational objectives of the community and/or to
jointly accomplish various projects related to the joint improvement and/or joint use of property
owned by the District (hereafter referred to collectively as "Individual Joint Use Agreements");
and
E. WHEREAS, the Parties have agreed that the purpose of this Agreement is to
establish a framework setting forth the basic terms applicable to each of the Individual Joint Use
Agreements; and
F. WHEREAS, the provisions of the Individual Joint Use Agreements will set forth
the individuating terms for each of the Individual Joint Use Agreements and that to the extent
that any provision in any of the Individual Joint Use Agreements conflict with any provision in
the Master Joint Use Agreement, the Individual Joint Use Agreement's provision shall prevail;
and
G. WHEREAS, the Individual Joint Use Agreements will be set forth in Exhibit "A"
attached hereto and incorporated herein by this reference; and
H. WHEREAS, the District and the City acknowledge that this Agreement is being
entered into by each Party, as a courtesy between public agencies and for the mutual benefit of
each; and
I. WHEREAS, it is the desire of the District and the City, upon the express terms
and conditions set forth in this Agreement, to utilize the Individual Joint Use Agreements for the
mutual benefit and use of each Party, pursuant to the terms set forth herein.
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AGREEMENT
NOW THEREFORE, in consideration of the foregoing recitals the Parties hereto agree
as follows:
1.0 CIVIC CENTER ACT. Both parties acknowledge that the Sites may be identified as a
"Civic Center" pursuant to Education Code Section 38130 et seg. ("Civic Center Act") and that
subsequent to identification as a Civic Center, the use of any such Site must comply with the
provisions of the Civic Center Act. To the extent permitted by law, and regazdless of whether
the Site is designated as a Civic Center, the Parties shall chazge a fee, as set forth in Article 10.0
of this Agreement, to organizations or persons other than the Parties to cover expenses of the
particular activity or service conducted on the Site.
2.0 TERM OF THE MASTER JOINT USE AGREEMENT. This Agreement shall
commence upon execution by the Parties, and remain in effect for five (5) years and shall have
an option for a five (5) year extension upon mutual agreement of the Parties. Each Individual
Joint Use Agreement shall contain a sepazate provision setting forth the term for that Individual
Joint Use Agreement.
3.0 EARLY TERMINATION OF AGREEMENT. Recognizing that unforeseen
circumstances outside of the control of either party may necessitate the termination of one or
more of the Individual Joint Use Agreements or all of the Individual Joint Use Agreements and
the Master Joint Use Agreement, the following procedures shall apply.
3.1 In the event that either Party wishes to terminate one or more of the Individual
Joint Use Agreements or all of the Individual Joint Use Agreements and the Master Joint Use
Agreement, the terminating Party shall notify the other Party in writing six (6) months in
advance of the intended date of termination.
3.2 "Unforeseen Circumstances" shall be defined as dire financial conditions for
either Party, City or District loss of revenue or funding, or District's need for exclusive use of the
facility.
3.3 Notwithstanding the foregoing, the Parties may agree to extend or otherwise
waive any termination right, upon mutual approval by the Parties' respective governing boazds,
in order to maximize any applicable State, Federal, or local public agency grant fund
requirements, which State, Federal, or local public agency grant applications aze approved by the
District, prior to application by the City.
4.0 EMERGENCY NEED. In the event that the District determines that an emergency need
requires the use of any Site, the District shall have the unlimited right to make use of all or any
portion of any Site for the entire time that such emergency need exists as approved by the
District's Board of Education. For purposes of this Agreement, an emergency is any
circumstance or event that poses an actual or potential danger to life or property.
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5.0 DESCRIPTION OF INDIVIDUA__L JOINT USE AGREEMENTS.
5.1 Descriptions of each individual joint use project are set forth in the Individual
Joint Use Agreements.
5.2 To the extent that any provision in any of the Individual Joint Use Agreements
conflicts with any provision in the Master Joint Use Agreement, the Individual Joint Use
Agreement's provision shall prevail.
5.3 The Parties agree that additional Individual Joint Use Agreements may be entered
into between the District and the City and, at the Parties discretion, such future joint use projects
shall be subject to all provisions in this Agreement and incorporated herein by this reference.
5.4 At the time of entering into this Agreement, this Master Joint Use Agreement is
intended to serve the following sites:
5.4.1 Individual Joint Use Agreement, No. 1, for the McGaugh Pool.
5.4.2 Individual Joint Use Agreement, No. 2, for the McGaugh Gymnasium.
5.4.3 Individual Joint Use Agreement, No. 3, for the McGaugh Field.
5.4.4 Individual Joint Use Agreement, No. 4, for the McGaugh Tennis Courts.
5.4.5 Individual Joint Use Agreement, No. 5, for the Seal Beach Tennis Center.
Each of the above referenced sites shall have a separate agreement. The Parties may include
additional sites by mutual agreement.
6.0 BI-ANNUAL COMMITTEE MEETING. A committee shall be established consisting
of equal representatives from the District and the City with the total number of committee
members to be between 6 and 10. Each party shall appoint board/council members to serve, and
by definition the Superintendent and City Manager or their designees shall be ex officio
members. The committee shall meet bi-annually for the purpose of discussing issues regarding
the Sites connected to the Individual Joint Use Agreements. Such issues include, but are not
limited to, scheduling, repairs, and maintenance.
7.0 OWNERSHIP OF THE SITES, FACILITY. FURNISHINGS, AND EQUIPMENT.
7.1 The underlying fee title to the land, building, and improvements existing at the
time of this Agreement for each Site shall be owned by the District. Personal property, trade
fixtures, furnishings, or equipment provided or paid for by the District and the City shall remain
the property of the District and the City respectively. Upon the expiration or termination of one
or more of the Individual Joint Use Agreements, the City shall have the option of removing or
leaving any personal property, trade fixtures, furnishings, or equipment belonging to the City. In
the event that the City leaves any personal property, trade fixtures, furnishings, or equipment
belonging to the City, such property shall become the sole property of the District. In the event
that the City removes any personal property, trade fixtures, furnishings, or equipment belonging
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to the City, the City shall return to its original condition that portion of the Site affected by such
removal.
No past, present, or future use of any of the Sites shall be interpreted as conveying any
ownership or other property interests in any of the Sites.
8.0 PROJECT FUNDING. Funding shall be in accordance with the provisions set forth in
the Individual Joint Use Agreemtns.
9.0 CAPITAL COSTS. Capital costs shall be shared in accordance with the applicable
provisions set forth in the Individual Joint Use Agreements.
10.0 DONATIONS. For the purpose of this Agreement, donations include any gift, present,
grant, or contributions of any monetary value receive by the City that is related to a Site, or
related to the use of a Site, including those from user groups, ("Donations"). Grants received by
the City from the State shall be used for the purpose for which they were received with prior
authorization from the District. AlI Donations of goods and/or services must be pre-approved by
the District. Disclosure an use of Donations must be made as follows:
10.1 Disclosure. The City and the District shall mutually disclose all Donations
received. Such disclosure shall be made within thirty (30) days after receipt of Donation. All
Donations shall be placed into a separate financial account. Bi-annual reviews shall be
scheduled with the District.
10.2 Use of Donations. The City's use of Donations shall be subject to the following
provisions:
10.2.1 To the extent that the total of the Donations received by the City during
any calendar year, for any of the Sites, exceeds the total cost of the maintenance and
operations of that Site, the City agrees to use the excess amounts for expenses related to the
maintenance and operations of that Site.
10.2.2 In the event that either Party received a donation that requires recurring
costs or maintenance, the Party not in receipt of such donation shall have full discretion as to
whether to contribute to such recurring costs or maintenance related to the donation. In no
event shall either Party be required to accept, participate in, or share in the costs related to a
donation.
11.0 CONSIDERATION. In consideration for the District entering into this Master Joint Use
Agreement and the Individual Joint Use Agreements, the City agrees to pay the following items
as indicated:
11.1 Valuable Consideration. Upon signature of this document, valuable
consideration is considered received.
12.0 IMPROVEMENTS. Improvements may be undertaken by the City subject to the
District's advance approval and in accordance with the following conditions:
Page 5 of 15
12.1 The District's Board of Education shall approve the following:
12.1.1 For any improvements, the District's Board of Education shall approve the
concept, the plans, and the project. Such approval shall occur prior to the City's application
for the grant or acceptance of a donation.
12.1.2 All building/construction plans must receive approval from the District's
Board of Education prior to commencement of construction.
12.2 The District's Superintendent or designee shall approve the following:
12.2.1 The District shall have final approval of all vendors and/or contractors.
The District shall have the right to review and approve all project planning, design, and
construction.
12.2.2 The District shall have final approval of all contracts related to any
improvements.
12.2.3 The District shall have final approval of all schedules related to any
improvements.
12.3 All construction services are to be performed by a properly licensed architect,
engineer, contractor, or inspector including construction management services which shall be
provided by a licensed contractor, architect or engineer, and shall comply with all public works
labor requirements, including the payment of prevailing wages, as required of school districts
under state law and as approved by the required State agencies.
12.4 The City shall be responsible for all costs associated with any improvements to
the Sites when initiated by the City unless otherwise determined and agreed to by the District and
the City.
12.5 All contractors and subcontractors, and their employees and agents who enter
onto the Site for any reason or at anytime subscribed herein, shall submit or have submitted their
fingerprints, without exception, as proscribed by Education Code Section 45125.1. Prior to the
issuance of keys to any third party, including contractors and sub-contractors, the District and the
City shall each require said third party, contractor or sub-contractor to acknowledge that he/she
has been informed that California Penal Code § 469 provides that any person who "knowingly
makes, duplicates, causes to be duplicated, or uses," or attempts to do same, or possesses any key
to a public building, without authorization and with knowledge of the lack of such authorization,
is guilty of a misdemeanor; and that said third party, contractor or sub-contractor further
specifically acknowledges that he/she shall be responsible for any such duplication or
unauthorized use of said keys, whatsoever.
13.0 UTILITY COSTS. Utility costs for the Individual Joint Use Agreements shall be shared
as follows unless otherwise specified in the Individual Joint Use Agreements.
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13.1 Electricity. The Parties shall pay their percentage of the electrical usage at the
Sites and each party shall be responsible for its sepazate use and the City shall pay such utility
invoice upon receipt.
13.2 Water. The Parties shall pay their percentage of the water usage at the Sites and
each party shall be responsible for its separate use and the City shall pay such utility invoice
upon receipt.
13.3 Telephone. The Parties shall be responsible for its sepazate use of telephone
service provided to the Sites and pay such utility bills directly to the service provider.
13.4 Trash. The Parties shall be responsible for collection of its garbage at the Sites.
13.5 Gas. The Parties shall pay their percentage of the gas usage at the Sites and each
party shall be responsible for its sepazate use and the City shall pay such utility invoice upon
receipt.
14.0 MAINTENANCE. Cleaning, repair, maintenance, and all other custodial services for
the Sites shall be shazed in accordance with the applicable provisions set forth in the Individual
Joint Use Agreements.
15.0 USE SCHEDULING. Scheduling for use of the Sites shall be administered by the City
unless otherwise mutually agreed.
16.0 USE OF SITES. The Site shall be used to the maximum extent possible for both school
and community purposes to the extent that such use by the City does not interfere with the
District's schedules.
16.1 No person or organization shall be permitted to use the Sites where such use is
inconsistent with provisions of the Education Code or the State of California or inconsistent with
education programs and activities of the District and the City, provided such programs and
activities are in accordance with this Agreement. Any user failing to comply with established
guidelines are subject to pay for all damages caused to the facility and termination of use permit.
Each Party agrees to utilize the Sites in conformance with Federal and State law as well as the
District and the City administrative regulations and/or boazd policies. Disputes under this
section shall be resolved pursuant to Sections 25.2 and 25.3 of this Agreement.
16.2 Advertising on any Site shall be iri accordance with the District's Board policy
17.0 FIELD USE; PRIORITY, ALLOCATION, FEES, AND PERMITS. Use of any fields
connected to any of the Individual Joint Use Agreement shall be subject to the Schedule of
Chagges, Field Use, and Field Schedule which shall be subject to annual review and revisions.
(See Schedule of Charges, Exhibit B.)
18.0 INDEIVIlVIFICATION.
18.1 No Party nor any of its officers, agents, volunteers, contractors, or employees
shall be responsible for any damage or liability occurring by reason of any acts or omissions on
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the part of another Party under or in connection with any obligation delegated to the Parties
under this Agreement. Each Party shall indemnify, defend, and hold harmless the other parties,
their officers, agents, volunteers, contractors, and employees from any and all liability, loss,
expense (including reasonable attorneys' fees and other defense costs), or claims imposed for
damages of any nature whatsoever, including but not limited to, bodily injury, death, personal
injury, or property damage occurring by reason of any acts or omissions on the part of the Party's
own officers, agents, contractors, or employees under or in connection with any obligation
delegated to such Party under this Agreement. This indemnity shall survive termination of this
Agreement.
18.2 Each Party agrees to require all third party organizations which each Party
authorizes to use or enter the Site, to execute a document stating the following:
[Name of Organization] agrees to hold harmless, defend, and
indemnify the Los Alamitos Unified School District and the City
of Seal Beach, their respective Board members, agents, officers,
employees and representatives against all actions, claims, or
demands for injury, death, loss or damages, regardless of fault or
cause, by anyone whomsoever (except where such injury, death,
loss, or damage was solely due to the willful acts or omissions of
the Los Alamitos Unified School District and the City of Seal
Beach, and/or their respective Board members, agents, officers,
employees and representatives), whenever such injury, death, loss,
damage or claim is a consequence of, or arises out of the use of or
access to the Site known as [name of Site], by [name of
organization] or its agents, officers, employees and
representatives.
18.3 Tort Liability. Government Code Section 895.2 imposes certain tort liability
jointly upon public agencies solely by reason of such public agencies being parties to an
agreement as defined in Government Code Section 895. Therefore, the Parties hereto, as
between themselves, pursuant to the authorization contained in Government Code Sections 895.4
and 895.6, each assumes the full liability imposed upon it or any of its officers, agents,
representatives or employees by law for injury caused by a negligent or wrongful act or omission
occurring in the performance of this Agreement, to the same extent that such liability would be
imposed in the absence of Government Code Section 895.2. To achieve this purpose, each Party
indemnifies and holds harmless the other Party for any loss, cost, or expense, including
reasonable attorneys' fees, that may be imposed upon or incurred by such other Party solely by
virtue of Government Code Section 895.21.
19.0 INSURANCE.
19.1 General Insurance Requirements: For each of the Individual Joint Use
Agreements, without limiting the indemnification provision and during the term of this
Agreement, the Parties shall provide and maintain, and shall require their subcontractors to
maintain, the insurance programs set forth in Section 20.0. Each Party's insurance shall be
Page 8 of 15
primary to and not contributing with any other insurance or self-insurance programs maintained
by the other Party, and shall be provided and maintained at the insured Party's own expense.
19.1.1 Evidence of Insurance: Each Party shall provide a letter or certificate of
insurance, or self-insurance, satisfactory to the other Parties prior to commencing services
under each of the Individual Joint Use Agreements. Such evidence shall identify the
applicable Individual Joint Use Project and the required coverages, and provide that the other
Parties receive written notice by mail at least thirty (30) days in advance of cancellation for
all required coverages.
19.2 Insurer Financial Ratings and Self-Insurance: If commercial insurance is used, it
shall be provided by an insurance company with an A.M. Best rating of not less than A:VII, or as
otherwise mutually agreed to by the Parties. In lieu of commercial insurance, each Party shall
retain the right to self-insure all or any portion of its insurance obligations herein.
19.2.1 Notification of Incidents. Claims or Suits: The Parties mutually agree to
notify one another of any accident or incident relating to services performed under this
Agreement, which involves injury or property damage which may result in the filing of a
claim or lawsuit against any of the Parties, and, of any actual third party claim or lawsuit
arising from or related to services under this Agreement.
19.3 Insurance Coverage Requirements: For each of the Individual Joint Use
Agreements, each Party shall maintain the following programs of insurance coverage:
19.3.1 General Liability insurance with limits of not less than the following,
and naming the other Party as an additional insured:
General Aggregate: $2S million
19.3.2 Automobile Liability insurance with a limit of liability of not less than
$1 million for each accident. Such insurance shall include coverage for all "owned," "hired"
and "non-owned" vehicles, or coverage for "any auto."
19.3.3 Workers Compensation and Employers' Liability insurance providing
workers compensation benefits, as required by the State of California, and for which each of
the Parties' contractor and/or subcontractors shall be responsible. This insurance shall
include Employers' Liability coverage with limits of not less than the following:
Each Accident or Occurrence: $1 million
20.0 NON-DISCRINIINATION. The Parties agree that in providing use of the Sites
pursuant to the Individual Joint Use Agreements, the hiring of staff, and the selection and use of
volunteers, all persons will be treated equally and without regazd to or because of race, color,
religion, ancestry, national origin, sex, age, sexual orientation, marital status or disability, and in
compliance with all anti-discrimination laws of the United States of America and the State of
California.
Page 9 of 1 S
21.0 REVIEW AND MODIFICATION PROCESS. Each Party shall designate a
representative as the contact liaison in connection with any and all issues pertaining to this
Agreement. The terms and conditions of the Agreement may be revised or amended in writing
as may be necessary from time to time and as mutually agreed by the Parties provided that any
such amendment is consistent with the original intent of the Agreement.
22.0 NOTICES.
22.1 Mailed Notice: Any notice required or desired to be served by any Party shall be
personally delivered or delivered by United States Mail, postage-prepaid, certified, return receipt
requested, or by reputable document delivery service that provides a receipt showing date and
time of delivery. Notices delivered by mail shall be effective at 5:00 p.m. on the second calendar
day following dispatch. Notices personally delivered or delivered by document delivery service
shall be effective upon receipt. Notices shall be delivered to the Parties at the following
addresses:
To District: Los Alamitos Unified School District
10293 Bloomfield Street
Los Alamitos, CA 90702
Attn: Assistant Superintendent, Business Services
Telephone: (562) 799-4700
Facsimile: (562) 799-4711
With a copy to: Atkinson, Andelson, Loya, Ruud and Romo
17871 Park Plaza Drive, Suite 200
Cerritos, CA 90703
Attn: Andreas C. Chialtas, Esq.
Telephone: (562) 653-3200
Facsimile: (562) 653-3333
To City: City of Seal Beach
City Hall, 211 Eighth Street
Seal Beach, CA 90740
Attn: City Manager
Telephone: (562) 431-2527 ext. 1300
Facsimile: (562) 493-9857
With a copy to: Richards, Watson & Gershon
355 South Grand Avenue, 40th Floor
Los Angeles, CA 90071-3101
Attn: Quinn M. Barrow
Telephone: (213) 626-8484
Facsimile: (213) 626-0078
22.2 Emergency Contact Numbers: The Parties will provide each other after-hours
emergency contact information for appropriate supervisory staff which shall be periodically
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updated. Such lists will also include emergency contact numbers for other facilities which may
be utilized in the event of a community emergency.
23.0 PARTY EMPLOYEES.
23.1 District Employees: For purposes of this Agreement, all persons employed in the
performance of services and functions for District shall be deemed District employees and no
District employees shall be considered as an employee of the City, nor shall such District
employees have any City pension, civil service, or other status while an employee of the District.
23.2 City Employees: For purposes of this Agreement, all persons employed in the
performance of services and functions for the City shall be deemed City employees and no City
employee shall be considered as an employee of the District, nor shall such City employees have
any District pension, civil services, or other status while an employee of the City.
24.0 MISCELLANEOUS.
24.1 Attorneys' Fees: Liti ation: In the event of a dispute under this Agreement, each
Party shall bear its own attorneys' fees and costs.
24.2 Mediation. In the event any dispute arising under the terms of this Joint Use
Agreement, the Parties shall meet and confer with the objective of resolving such disputes within
seventy-two (72) hours of the request of either Party. If, within seven (7) calendaz days, or such
longer period as may be agreed upon by the Parties, the dispute cannot be resolved by the
Representatives to the Parties' mutual satisfaction, the Parties shall mutually select a mediator,
who is a respected professional with expertise in the area of the dispute, to facilitate the
resolution of the dispute. If the parties are unable to agree on a mediator, the mediation shall be
conducted in accordance with the then current commercial Mediation Rules of the American
Arbitration Association. Absent written agreement of the Parties to the contrary, the mediation
process shall be completed or terminated within forty-five (45) days of the initial request for
mediation.
24.3 Arbitration of Disputes. In the event that the Parties aze unable to timely resolve
the dispute through mediation, the issues in dispute shall be submitted to azbitration pursuant
California Code of Civil Procedure, Part 3, Title 9, §1280 et seg., or its successor statute. For
such purpose, an agreed arbitrator shall be selected, or in the absence of agreement, each Party
shall select an azbitrator and those two arbitrators shall select a third. Discovery may be
conducted in connection with the arbitration proceeding pursuant to California Code of Civil
Procedure § 1283.05. The azbitrator, or three azbitrators acting as a board, shall take such
evidence and make such investigation as deemed appropriate and shall render a written decision
on the matter in question. The arbitrator shall decide each and every dispute in accordance with
the laws of the State of California. The arbitrator's decision and awazd shall be subject to review
for errors of fact or law in the Superior Court for the County of Orange, with a right of appeal
from any judgment issued therein.
24.4 Assi ment: No Party shall assign this Agreement or any right or privilege any
Party might have under this Agreement without the prior mutual written consent of all Parties
hereto, which consent shall not be unreasonably withheld, provided that the assignee agrees in a
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written notice to all Parties to carry out and observe each applicable Party's agreements
hereunder.
24.5 Binding on Heirs: This Agreement shall be binding upon the Parties hereto and
their respective heirs, representatives, transferees, successors, and assigns.
24.6 Time of the Essence: Time is of the essence with respect to each of the terms,
covenants, and conditions of this Agreement.
24.7 Severability: If any provision in this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless
continue in full force without being impaired or invalidated in any way.
24.8 Entire Agreement, Waivers and Amendments: This Agreement incorporates all
of the terms and conditions mentioned herein, or incidental hereto, and supersedes all
negotiations and previous agreements between the Parties with respect to all or part of the
subject matter thereof. All waivers of the provisions of this Agreement must be in writing and
signed by the appropriate authorities of the Party to be charged. Any amendment or modification
to this Agreement must be in writing and executed by all of the Parties hereto.
24.9 Exhibits. All exhibits and attachments to which reference is made are deemed
incorporated in this Agreement, whether or not actually attached.
24.10 Interpretation: Governing Law: This Agreement shall be construed according to
its fair meaning and as if prepared by both Parties hereto. This Agreement shall be construed in
accordance with the laws of the State of California in effect at the time of the execution of this
Agreement.
24.11 Authority: The person(s) executing this Agreement on behalf of the Parties hereto
warrant that: (i) such Party is duly organized and existing; (ii) they are duly authorized to
execute and deliver this Agreement on behalf of said Party; (iii) by so executing this Agreement,
such Party is formally bound to the provisions of this Agreement; and (iv) the entering into this
Agreement does not violate any provision of any other agreement to which said Party is bound.
24.12 Execution in Counterpart: This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on all Parties hereto,
notwithstanding that all parties are not signatories to the original or the same counterpart.
24.13 Effect of Recitals: The Recitals and Exhibit(s) herein are deemed true and
correct, are hereby incorporated into this Section as though fully set forth herein, and the Parties
acknowledge and agree that they are each bound by the same.
24.14 Conflicts of Interest: No director, officer, official, representative, agent, or
employee of any Party shall have any financial interest, direct or indirect, in this Agreement.
24.15 Rights and Remedies are Cumulative: Except as may be otherwise expressly
stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise
by any Party of one or more of its right or remedies shall not preclude the exercise by it, at the
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same time or at different times, of any other rights or remedies for the same default or any other
default by another Party or Parties.
24.16 Provisions Required by Law Deemed Inserted: Each and every provision of law
and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein
and the Agreement shall be read and enforced as though it were included herein, and if through
mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon
application of any Party the Agreement shall forthwith be physically amended to make such
insertion or correction.
24.17 Cooperation: The Parties acknowledge that it may be necessary to execute
documents other than those specifically referred to herein in order to complete the objectives and
requirements that are set out in this Agreement. The Parties hereby agree to cooperate with each
other by executing such other documents or taking such other actions as may be reasonably
necessary to complete the objectives and requirements set forth herein in accordance with the
intent of the Parties as evidenced in this Agreement.
24.18 Ambiguities Not to be Construed Against Drafting, Party: The doctrine that any
ambiguity contained in a contract shall be construed against the party whose counsel has drafted
the contract is expressly waived by each of the Parties hereto with respect to this Agreement.
24.19 Nonliability of Officials: No officer, member, employee, agent, or representative
of the Parties shall be personally liable for any amounts due hereunder, and no judgment or
execution thereon entered in any action hereon, shall be personally enforced against any such
officer, official, member, employee, agent, or representative.
24.20 Third Party Beneficiaries: Nothing in this Agreement shall be construed to confer
any rights upon any party not signatory to this Agreement.
(Intentionally Left Blank)
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IN WITNESS WHEREOF, Los Alamitos Unified School District and the City of Seal
Beach have entered into this Agreement as of the Effective Date.
LOS ALAMITOS UNIFIED SCHOOL CITY OF SEAL BEACH,
DISTRICT, a California charter city
a California public school district
By: By:
David Carmany, City Manager
Attest: Attest:
By: By:
Linda Devine, City Clerk
Approved as to Form: Approved as to Form:
By:
By. Quinn Barrow, City Attorney
Andreas C. Chialtas, Esq.
Atkinson, Andelson, Loya,
Ruud & Romo
.p
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EXIiIBIT A
INDIVIDUAL .DINT USE AGREEMENTS
Individual Joint Use Agreement, No. 1, for the McGaugh Pool.
Individual Joint Use Agreement, No. 2, for the McGaugh Gymnasium.
Individual Joint Use Agreement, No. 3, for the McGaugh Field.
Individual Joint Use Agreement, No. 4, for the McGaugh Tennis Courts.
Individual Joint Use Agreement, No. 5, for the Seal Beach Tennis Center.
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