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HomeMy WebLinkAboutCC AG PKT 2008-10-13 #YAGENDA STAFF REPORT DATE: October 13, 2008 TO: Honorable Mayor and City Council THRU: David Carmany, City Manager FROM: Patrick Importuna, Interim Assistant City Manager Prepared by: 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 BY: _ NOTED AND APPROVED: ©--~ Patrick Importuna, David Carmany, ity Manager Interim Assistant City Manager Attachments: A. Resolution No. 5785 B. 2008 Master Joint Use Agreement Agenda Item Y 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 13th day of October , 2008 by the following vote: AYES: COUNCILMEMBERS NOES: COUNCILMEMBERS ABSENT: COUNCILMEMBERS ABSTAIN: COUNCILMEMBERS ATTEST: City Clerk Mayor 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 13th day of October , 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". Page 1 of 14 57296-0001\10661Q3v6.doc final version 10/01/08 RECITALS A. California Education Code Section 10900 et sec .authorizes and empowers school districts to cooperate with public agencies in organizing, promoting, and conducting joint programs of recreation as well as education. B. California Government Code Section 6500 et sec . (the "Joint Powers Law") provides that two or more public agencies may, by agreement, jointly exercise any power common to the contracting parties. C. 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. D. The District and City wish to share with each other the use of their separately owned property (collectively "the Property") for the common general educational and recreational objectives of the community and to jointly accomplish various projects related to the improvement and use of the Property. E. The purpose of this Agreement is to establish a framework setting forth the basic terms applicable to the Parties' joint use of the Property. 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. F. 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. NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants, and conditions stated herein, the Parties hereto agree as follows: (Intentionally Left Blank) Page 2 of 14 S7296~0001\1066103v6.doc final version 10/01/08 AGREEMENT 0.0 DEFINITIONS. For purposes of this Agreement, the following terms mean: 0.1 "Annual Committee": the committee created pursuant to Section 6.0 of this Agreement. 0.2 "Donation": any gift, present, or contribution of any monetary value, including those from user groups, except Government Grants, received by either party that is related to a Site or its use pursuant to any Individual Joint Use Agreement. 0.3 "Government Grant ": a monetary grant from any local, state or federal governmental entity. 0.4 "Individual Joint Use Agreement" or ")<TUA": any separate agreement entered into by the Parties to govern the joint use of a specific Site. 0.5 "Owner": the Party who owns a particular Site. 0.6 "Site": a specific property and its associated facilities subject to this Agreement. 1.0 CIVIC CENTER ACT. The District may identify any Site it owns as a "Civic Center" pursuant to Education Code Section 38130 et sec . ("Civic Center Act"). 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 the property is under the control of the District. To the extent permitted by law, and regardless of whether the Site is designated as a Civic Center, the Parties shall charge a fee for its use, as set forth in the Individual Joint Use Agreements, 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 TOINT USE AGREEMENT. This Agreement shall commence upon the Effective Date, and remain in effect for five (5) years. The Parties may upon mutual written agreement extend the term for an additional five (5) years. Each Individual Joint Use Agreement shall contain a separate provision setting forth the term for that IJUA. 3.0 EARLY TERMINATION OF AGREEMENT. 3.1 In the event of unforeseen circumstances, either Party may terminate this Agreement or any or all IJIJA's upon six (6) months written notice to the other Party. For these purposes, "unforeseen circumstances" means dire financial conditions for either Party, City or District loss of revenue or funding, or the terminating Party's need for the exclusive use of the facility or Site identified in the IJUA. 3.2 Notwithstanding the foregoing, in order to maximize any applicable Government Grant fund requirements, the Parties may agree to extend or otherwise waive any termination right, upon mutual approval by the Parties' respective governing boards. Any Party's application Page 3 of 14 57296-0001\1066103v6.doc final version 10/01/08 for any such Government Grant must be approved in advance by the other Party, which approval shall not be unreasonably withheld. 4.0 EMERGENCY NEED. Nothing in this Agreement or any IJUA shall limit either Owner's right to make unlimited use of all or any portion of its Sites during an emergency. For purposes of this Agreement, an emergency is any circumstance or event that the Owner deems to pose an actual or potential danger to life or property. 5.0 INDIVIDUAL JOINT USE AGREEMENTS. 5.1 Descriptions of each individual joint use project are set forth in the LTUA's attached hereto as Exhibit A. To the extent that any provision in any of the IJiJA's conflicts with any provision in this Agreement, this Agreement shall prevail unless modifications are mutually agreed upon in each IJUA. 5.2 Upon the effective date of this Agreement, this Agreement shall govern the following LTLJA's and property identified therein: 5.2.1 Individual Joint Use Agreement, No. 1, for the McGaugh Pool. 5.2.2 Individual Joint Use Agreement, No. 2, for the McGaugh Gymnasium. 5.2.3 Individual Joint Use Agreement, No. 3, for the McGaugh Field. 5.2.4 Individual Joint Use Agreement, No. 4, for the McGaugh Tennis Courts. 5.2.5 Individual Joint Use Agreement, No. 5, for the Seal Beach Tennis Center. 5.3 The Parties may enter into additional LT[TA's, and any such IJUA's shall be subject to all provisions in this Agreement as if expressly stated in that IJUA. 6.0 ANNUAL COMMITTEE. The Parties shall establish a committee to meet annually to discuss issues regarding the Sites, this Agreement, and the IJUA's, including, but not limited to, scheduling, repairs, and maintenance of the Sites. The committee shall be comprised of 6, 8 or 10 members, divided equally between the Parties, and appointed by the Party's respective governing bodies. The District Superintendent and the City Manager or their respective designees shall be ex officio members of the committee. 7.U OWNERSHIP OF THE SITES, FACILITY, FURNISHINGS, AND EQUIPMENT. 7.1 Each Owner shall retain its existing ownership interest in and to its Sites and any land, building, or improvement existing thereon as of the effective date of the applicable IJUA. No past, present, or future use of any of the Sites pursuant to this Agreement shall be interpreted as conveying any ownership or other property interests in any of the Sites. 7.2 Personal property, trade fixtures, furnishings, or equipment installed or placed on a Site by a Party after the effective date of the applicable LTUA shall remain that Party's separate property. Page 4 of 14 57296-0001\1066103v6.doc final version 10/01/08 7.3 Upon the expiration or termination of a LTCTA, the Party who is not the Owner shall remove from the Site its personal property, trade fixtures, furnishings, or equipment within 90 days or longer by mutual agreement of the parties or else such personal property, trade fixtures, furnishings, or equipment shall become the sole property of the Owner. If a Party removes any personal property, trade fixtures, furnishings or equipment from a Site of which it is not the Owner, that Party must return to its original condition that portion of the Site affected by such removal. 8.0 PROJECT FUNDING AND CAPITAL COSTS. The terms under which the joint use of any Site is to fund and the terms for sharing any associated capital costs shall be set forth in the applicable IJIJA's. 9.0 DONATIONS. All Donations received specific to one of the parties site's under this agreement, shall be used as deemed appropriate by the recipient. However, if the donation will in any way affects the other parties' physical property or financially impacts them in anyway then the acceptance and usage of the donation must be mutually agreed and accepted by both parties. 10.0 GOVERNMENT GRANTS. Any Government Grant received by either Party shall be used in accordance with the terms and provisions of that grant. 11.0 IMPROVEMENTS. The City may make improvements to any Site owned by the District in accordance with the conditions set forth in this Section. 11.1 The City shall be responsible for all costs associated with any improvements unless otherwise determined and agreed to by the District and the City. 11.2 The District shall have the right to review and approve all project planning, design and construction, and shall have final approval of all contracts and schedules related to any City improvements. 11.3 The District's Board of Education must approve all building plans and construction plans for every City improvement in advance. 11.4 The District's Superintendent must approve in advance all vendors and contractors employed for City improvements. 11.5 All construction services for City improvements shall be performed by a properly licensed architect, engineer, contractor, or inspector. All construction management services 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. 11.6 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 Page 5 of 14 57296-0001\1066103v6.doc final version 10/01/08 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. 12.0 UTILITY COSTS. Utility costs for the IJLJA's shall be shared as follows unless otherwise specified in the IJUA's. 12.1 Electricity, Water, and Gas. Each Party shall pay a share of the electrical, water, and gas actual usage for each Site in proportion to its use of the Site. The Owner of the Site shall present the other Party with an invoice for electrical, water, and gas usage and such invoice must be paid within thirty (30) days of receipt. 12.2 Telephone. Each party shall be responsible for its separate use of telephone service provided to the Sites and pay such utility bills directly to the service provider. 12.3 Trash. Each Owner shall be responsible for collection of garbage at its Sites. 13.0 MAINTENANCE. Cleaning, repair, maintenance, and all other custodial services for the Sites shall be shared in accordance with the applicable provisions set forth in the IJUA's. 14.0 USE SCHEDULING. The City shall, in conjunction with the District, develop and administer the scheduling for use of the Sites unless otherwise mutually agreed in the applicable IJUA. 15.0 USE OF SITES. 15.1 Each Site shall be used to the maximum extent possible for both school and community purposes to the extent that such does not interfere with the Owner's schedules for maintenance, repair, or use of the Site, which schedules shall have priority over any use of the Site by the Party who is not its owner. 15.2 The Parties shall utilize the Sites in conformance with all applicable Federal, state, and local laws, as well as any applicable administrative regulations and policies adopted by either Party. 15.3 The Parties shall hold any third party user who fails to comply with established guidelines liable to pay for all damages caused thereby to the Site. 15.4 Disputes under this section shall be resolved pursuant to Sections 24.2 and 24.3 of this Agreement. 15.5 Advertising on any Site shall be in accordance with the policies established by the Owner's governing body. Page 6 of 14 57296-0001\1066103v6.doc final version 10/01/08 16.0 FIELD USE; PRIORITY, ALLOCATION, FEES, AND PERIVIITS. The use of any fields owned by the District shall be subject to the District's Schedule of Charges, Field Use, and Field Schedule, which shall be subject to annual review and revisions. 17.0 INDEMNIFICATION. 17.1 No Party or 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 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 party, its 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. 17.2 Each Party agrees to require all third party organizations that it 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. 17.3 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. Page 7 of 14 S7296-0001\1066103v6.doc final version 10/01/08 18.0 INSURANCE. 18.1 General Insurance Requirements: For each of the IJUA's, 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 this Section. Each Party's insurance shall be 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. 18.2 Insurance Coverage Requirements: For each of the IJUA's, each Party shall maintain the following programs of insurance coverage: 18.2.1 General Liability insurance with limits of not less than the following, and naming the other Party as an additional insured: General Aggregate: $25 million 18.2.2 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." 18.2.3 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: $1 mullion 18.3 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 IJUA's. 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. 18.4 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. 18.5 Notification of Incidents, Claims or Suits: Each Party must notify the other of any accident or incident relating to its use of the Site pursuant to 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. 19.0 NON-DISCRIMINATION. The Parties agree that in providing use of the Sites pursuant to the IJUA's, the hiring of staff, and the selection and use of volunteers, all persons will be treated equally and without regard to or because of race, color, religion, ancestry, national Page 8 of 14 S7296-0001\1066103v6.doc final version 10/01/08 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. Z0.0 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. 21.0 NOTICES. 21.1 Notice: Notices 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 Facsimile: (562) 493-9857 Page 9 of 14 57296-0001\]066103v6.doc final version 10/01/08 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 21.2 Emergency Contact Numbers: The Parties will provide and periodically update each other after-hours emergency contact information for appropriate supervisory staff. Such information must include emergency contact numbers for other facilities that may be utilized in the event of a community emergency. 22.0 PARTY EMPLOYEES. 22.1 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. 22.2 Cit~plo~es: 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. 23.0 MISCELLANEOUS. 23.1 Attorneys' Fees; Liti ag tion: In the event of a dispute under this Agreement, each Party shall bear its own attorneys' fees and costs. 23.2 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 calendar 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. 23.3 Arbitration of Disputes. In the event that the Parties are unable to timely resolve the dispute through mediation, the issues in dispute shall be submitted to arbitration pursuant California Code of Civil Procedure, Part 3, Title 9, §1280 et sec,., or its successor statute. For such purpose, an agreed arbitrator shall be selected, or in the absence of agreement, each Party Page 10 of 14 57296-0001\]066103v6.doc final version 10/01/08 shall select an arbitrator 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 arbitrator, or three arbitrators 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 award 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. 23.4 Assi nom: 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 written notice to all Parties to carry out and observe each applicable Party's agreements hereunder. 23.5 Binding on Heirs: This Agreement shall be binding upon the Parties hereto and their respective heirs, representatives, transferees, successors, and assigns. 23.6 Time of the Essence: Time is of the essence with respect to each of the terms, covenants, and conditions of this Agreement. 23.7 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. 23.8 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. 23.9 Exhibits. All exhibits and attachments to which reference is made are deemed incorporated in this Agreement, whether or not actually attached. 23.10 Intemretation: 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. 23.11 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. Page 11 of 14 S7296-0001\1066103v6.doc final version 10/01/08 23.12 Execution in Counterpart: This Agreement may be executed in several counterparts, and all such executed counterparts shall constitute one agreement binding on all Parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. 23.13 Effect of Recitals: The Recitals and Exhibit(s) herein are deemed true and correct, are hereby incorporated into this Agreement as though fully set forth herein, and the Parties acknowledge and agree that they are each bound by the same. 23.14 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. 23.15 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 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. 23.16 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. 23.17 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. 23.18 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. 23.19 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. 23.20 Third Party Beneficiaries: Nothing in this Agreement shall be construed to confer any rights upon any party not signatory to this Agreement. Page 12 of 14 57296-0001\1066103v6.doc final version 10/01/08 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 DISTRICT, a California public school district CITY OF SEAL BEACH, a California charter city B y: Patricia L. Meyer, Assistant Superintendent, Business Services Attest: By: Gail Dessert, Administrative Assistant Approved as to Form: B y: Andreas C. Chialtas, Esq. Atkinson, Andelson, Loya, Ruud & Romo By: David Carmany, City Manager Attest: B y: Linda Devine, City Clerk Approved as to Form: By: Quinn Barrow, City Attorney Page 13 of 14 S7296-DOOI\1066103v6.doc final version 10/Ol/08 EXHIBIT "A" INDIVIDUAL JOINT USE AGREEMENTS Individual Joint Use Agreement, No. 1, for the McGaugh Pool. - Date of Adoption: Individual Joint Use Agreement, No. 2, for the McGaugh Gymnasium. Date of Adoption: Individual Joint Use Agreement, No. 3, for the McGaugh Field. Date of Adoption: Individual Joint Use Agreement, No. 4, for the McGaugh Tennis Courts. Date of Adoption: Individual Joint Use Agreement, No. 5, for the Seal Beach Tennis Center. Date of Adoption: Page 14 of 14 S729G-0001\]066103v6.doc final version 10/01/08