HomeMy WebLinkAboutCC AG PKT 2009-01-12 #KAGENDA STAFF REPORT
DATE: January 12, 2009
TO: Honorable Mayor and Ciry Council
THRU: David Carmany, City Manager
FROM: Jill R. Ingram, Assistant to the City Manager
SUBJECT: APPROVAL OF INDIVIDUAL JOINT-USE AGREEMENT
FOR SEAL BEACH TENNIS CENTER
SUMMARY OF REQUEST:
Adopt Resolution No. 5828, A Resolution of the City Council of the City of Seal
Beach, California, Approving the Individual Joint-Use Agreement for Seal Beach
Tennis Center, between the City of Seal Beach and the Los Alamitos Unified
School District, effective January 12, 2009.
BACKGROUND:
On November 10, 2008, the City Council adopted Resolution Number 5810,
approving and authorizing the City Manager to executive a Tennis Center
Management Services Agreement between the Ciry of Seal Beach and First
Serve Tennis, Inc. regarding the Seal Beach Tennis Center. The tennis courts at
Los Alamitos High School are in disrepair, and the City and Los Alamitos Unified
School District have a mutual interest in entering into an Individual Joint-Use
Agreement to work together to support afirst-class competitive high school
tennis program to meet the recreation needs of the community. The purpose of
the Agreement is to provide for the cooperative use and scheduling of the Seal
Beach Tennis Center tennis courts.
Additionally, on October 13, 2008, the City Council adopted Resolution Number
5785, approving a Master Joint-Use Agreement for Use of Shared Sites between
the City of Seal Beach and Los Alamitos Unified School District. The proposed
Individual Joint-Use Agreement for Seal Beach Tennis Center would be subject
to all terms and conditions set forth in the Master Joint-Use Agreement.
The proposed Individual Joint-Use Agreement will be for a period of five years
from the date of execution and can be renewed by mutual agreement. Under
terms of the Agreement, the City will allow all members of the Los Alamitos High
School boys' and girls' tennis teams and their coaches to use the tennis courts at
Agenda Item K
Page 2
the Tennis Center without charge. Such use shall be for practice and/or
tournaments, Monday through Friday, after school until 5:00 p.m., or later if need
be on tournament days. The Girls' team season is currently August through
November. The Boys' team season is currently February through May. The Los
Alamitos High School Athletic Director shall coordinate schedules and use with
the City's Tennis Center Manager.
FINANCIAL IMPACT:
As per Section 5.4 of the Individual Joint-Use Agreement, there will be no charge
for all members of the Los Alamitos High School boys' and girls' tennis teams
and their coaches to use the tennis courts for individual practice, team practice,
or team tournaments.
RECOMMENDATION:
Adopt Resolution No. 5828, A Resolution of the Ciry Council of the City of Seal
Beach, California, Approving the Individual Joint-Use Agreement for Seal Beach
Tennis Center, between the City of Seal Beach and the Los Alamitos Unified
School District, effective January 12, 2009.
SUBMITTED BY: NOTED AND APPROVED:
~~ ~• 2
JiI~R. Ingram,
ssistant to the City anager
~~..Q~~
David Carma ,City Manager
Attachments:
A. Resolution No. 5828
B. Individual Joint-Use Agreement for Seal Beach Tennis Center
C. Tennis Center Management Services Agreement
D. Master Joint-Use Agreement for Use of Shared Sites
RESOLUTION NUMBER SBZB
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL
BEACH, CALIFORNIA, APPROVING THE INDIVIDUAL JOINT-
USE AGREEMENT FOR SEAL BEACH TENNIS CENTER
BETWEEN THE CITY OF SEAL BEACH AND LOS ALAMITOS
UNIFIED SCHOOL DISTRICT
THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY
RESOLVE:
SECTION 1. The Ciry Council hereby approves an Individual Joint-Use
Agreement for Seal Beach Tennis Center between The City of Seal Beach and
Los Alamitos Unified School District.
SECTION 2. The City Council hereby directs the City Manager to execute
the Individual Joint-Use Agreement for Seal Beach Tennis Center.
PASSED, APPROVED AND ADOPTED by the City Council of Seal Beach, at a
meeting hereof held on the 12th day of January , 2009 by the following vote:
AYES: COUNCILMEMBERS
NOES: COUNCILMEMBERS
ABSENT: COUNCILMEMBERS
ABSTAIN: COUNCILMEMBERS
Mayor
ATTEST.
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 5828 on file in
the office of the City Clerk, passed, approved, and adopted by the City Council of
the Ciry of Seal Beach, at a regular meeting thereof held on the 12th day
of January , 2009
City Clerk
INDIVIDUAL JOINT USE AGREEMENT
FOR SEAL BEACH TENNIS CENTER
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 Ii~1DIVIDUAL JOINT-USE AGREEMENT for the use of Seal Beach Tennis Center
("Tennis Center Agreement") is entered into this 12th day of January , 2009, by and
between the LOS ALAMrl'OS UNIFTED SCHOOL DTSTRICT, a California public school
distract duly organized and existing under Chapter I of Division 3 of Title 2 of the Education
Code of the State of California ("District"), and the CITY OF SEAL BEACH, a Califomia
Municipal Corporation ("City") (collectively, the District and the City shall be referred to herein
as the "Parties" and individually as a "Party").
005591 00007/1108291 v2 revised U I-05-09
RECITALS
A. WHEREAS, Ctty is charged with the responsibility of providing public facilities for the
purpose of leisure time and recreation activities and health enrichment for general public
wellness and fitness; and
B. WHEREAS, District is dedicated to a culture of high student achievement and integrity,
where students thrive in a caring, respectful, and encouraging environment where they
are physically and emotionally safe to focus on learning; and
C. WHEREAS, tennis is a practical, accessible and lifelong sport critical to Los Alamitos
High School's extracumcular goals; and
D. WHEREAS, the courts at Los Alamitos High School are in disrepair and the Parties
desire to work together to support afirst-class competitive student athletic program; and
E. WHEREAS, the Parties have mutual interest in the accomplishment of the following
goals:
1. To provide wholesome, high-quality sports programming for youth; and
2. To provide a competitive high school tennis program to meet the recreation needs
of the community; and
3. To ensure that children of all economic levels are provided with the opportunity
to enjoy and have access to athletic programs and proper facilities; and
4. To ensure that operation of the community's tennis program is operated in the
most responsible, cost-effective and efficient manner possible; and
F. WHEREAS, the Parties wish to enter into an agreement to accotiunodate the District's
use of the City's tennis courts ("Tennis Courts") on property owned by the City at its Seal
Beach Tennis Center, located at 3900 Lampson Ave., Seal Beach, CA 90740, a
description of which is set forth in Exhibit "A" of this Tennis Center Agreement and
incorporated herein by this reference; and
G. WHEREAS, the Parties have mutually agreed that this Tennis Center Agreement is
subject to the Master Joint Use Agreement between the Parties dated October 14.2008
(the "Master Joint Use Agreement");
1108291 v2 2 of 5
AGREEMENT
NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants,
and conditions stated herein, the Parties hereto agree as follows:
1.0 CONTROLLING AGREEMENT. This Tennis Center Agreement is an Individual Joint
Use Agreement as that term is defined in the Master Joint Use Agreement and is subject
to all terms and conditions set forth therein. In the event that any provision in this Tennis
Center Agreement conflicts with the Master Joint Use Agreement, the Master Joint Use
Agreement shall prevail.
2.0 TERM OF AGREEMENT. The duration of thts Tennis Center Agreement shall be for a
period of five (5) years from the date of execution and can be renewed by mutual
agreement. This Tennis Center Agreement can be terminated as provided for in the
Master Joint Use Agreement.
3.0 PURPOSE. The purpose of this Agreement is to provide for the Parties' cooperative use
and scheduling of the Tennis Courts.
4.0 TENNIS COURT MAINTENANCE AND REPAIR.
4.1 City: The City shall be responsible for al] routine and extraordinary maintenance
of the Tennis Courts.
4.2 District. The District shall respect the other users of the Tennis Courts by
requiring its employees, student team members to pick up after themselves leave
the premises m good condition.
4.3 Inspection. Each Party shall inspect the Tenors Courts for dangerous conditions
prior to its use of the property. If such inspection reveals any dangerous
conditions, that Party shall: (1) promptly notify the other Party of the existence of
the condition; and (2) refrain from using any portions the Tennis Courts affected
by the dangerous condition until it ~s cornected. The City shall post adequate
wammg signs on the property.
5.0 TENNIS COURT USE AND SCHEDULING.
5.1. This District shall be allowed to use the Tenors Courts for District purposes,
subject to this Tennis Center Agreement. The Parties shall each act in good faith
to accommodate use of the Tennis Center by the other Party in accordance with
the terms of this agreement. The Parties shall meet on an annual basis to establish
an annual schedule for the District's Use of the Tennis Courts.
5.2 Maintenance and Renovation Schedule. The Parties shall meet on an annual basis
to establish an annual schedule for maintenance and renovations of the Tennis
iiosz9~~z 3 of 5
Court. The Parties shall attempt to reasonably accommodate the needs of al]
persons and groups using the Tennis Courts, but priority in scheduling shall be
given to maintenance and renovations.
5.3. Tennis Court Closures. The City may in its sole discretion close the Tennis
Courts to use by the public, the District, or anyone else. Whenever possible, the
City shall provide the Distnct with advance notice of any unscheduled closures.
Closures will be kept to a rmnimum when Tennis Courts are in usable condition.
Reasons for the closure of the Tennis Courts may include, but are not limited to,
the following:
5.3.1 Scheduled or unscheduled maintenancc, repair, or renovation of the
Tennis Courts.
5.3.2 Any condition posing a threat to the public health, including but not
limited to, heavy rains, dense fog, smog alerts, pesticide spraying,
herbicide spraying, and natural disasters.
5.4 School Tenors Teams. City will allow all members of the Los Alamitos high
School Boys' and Girls' tennis teams and their coaches to use the tennis courts at
the Tennis Center without charge. Such use shall be for practice and/or
tournaments, Monday through Friday, after school until 5:00 p.m., or later if need
be on tournament days. The Girls' team season is currently August through
November. The Boys' team season is currently February through May.
5.4.1 The Los Alamitos High School Athletic Director shall coordinate
schedules and use with the City's Tennis Center Manager.
5.4.2 The Los Alammtos High School Athletic Director shall provide the City
with a roster of students and coaches entitled to use the Tennis Center
pursuant to this Section, and shall promptly notify the City of any changes
to the roster or coaching staff.
5.4.3 All students and coaches entitled to use the Tennis Center pursuant to this
Section must present a valid Los Alamitos High School identification card
and sign in at the Tennis Center office prior to use.
5.4.4 Students shall dress and act appropriately. The City may within its sole
discretion revoke any student's privileges if he or she fails to act
appropriately at the Tennis Center.
IN WITNESS WHEREOF, Los Alamitos Unified School District and the City of Seal Beach
have entered into this Tennis Center Agreement as of the Effective Date.
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CITY OF SEAL BEACH,
a California Charter City
By:
Its: David N. Carmany. City Manager
Attest:
By:
Linda Devine, City Clerk
APPROVED AS TO FORM:
B y:
Quinn Barrow, City Attorney
LOS ALAMITOS UNIFIED SCHOOL
DISTRICT, a California public school district
Its:
APPROVED AS TO FORM:
By:
Andreas C. Ch>altas, Esq.
Atkinson, Andelson, Loya, Ruud & Romo
005591 00007/110829tv2
TENNIS CENTER MANAGEMENT SERVICES
AGREEMENT
between
City of Seal Beach
211 - 8th Street
Seal Beach, CA 90740
First Serve Tennis, Inc.
1040 Park Avenue
Long Beach, CA 90804
(562)425-0553
This Professional Service Agreement ("the Agreement's is made as of November 11,
2008 (the "Effective Date"), by and between First Serve Tennis, Inc., a California
Corporation (CONTRACTOR), and the CITY OF SEAL BEACH, a California Municipal
Corporation ("CITY°) (collectively, the CONTRACTOR and the CITY shall be referred to
herein as the "Parties" and individually as a "Party").
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RECITALS
A. WHEREAS, the Parties have mutual interest in the accomplishment of the
following goals:
a. To provide wholesome, high-quality sports programming in proper facilities
for athletes of all abilities; and
b. To provide afirst-class competitive and recreational tennis program to
meet the recreation needs of the community; and
c. To ensure that the community's tennis center is operated in the most
responsible, cost-effective and efficient manner possible; and
B. WHEREAS, tennis is a practical, accessible and lifelong sport critical to the
CITY's recreational program; and
C. WHEREAS, CITY is charged with the responsibility of providing public facilities
for the purpose of leisure time and recreation activities and health enrichment for
general public wellness and fitness; and
D. WHEREAS, CITY is the owner of the Seal Beach Tennis Center ("TENNIS
CENTER"), located at 3900 Lampson Avenue, Seal Beach and desires to
contract for the management of the TENNIS CENTER.
E. WHEREAS, CONTRACTOR is dedicated to promoting high athletic achievement,
good sportsmanship, and integrity; and
F. WHEREAS, Both CONTRACTOR and its Chief Executive Officer Cathy
Jacobson-Gury ("Jacobson-Gury") represent that CONTRACTOR and Jacobson-Gury
are qualified and able to provide CITY with such services. Jacobson-Gury represents
that she is fully qualified to pertorm the professional services required by this
Agreement, by virtue of her experience, training, education, and expertise.
NOW THEREFORE, in consideration of the Parties' performance of the
promises, covenants, and conditions stated herein, the Parties hereto agree as follows.
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AGREEMENT
1.0 Scope of Services
1.1. CONTRACTOR shall provide professional management services for the
TENNIS CENTER. Specifically, CONTRACTOR shall:
1.1.1. Actively promote the sport of tennis and the TENNIS CENTER for
the City of Seal Beach; enforce all rules and regulations for public use of the TENNIS
CENTER, including but not limited to regulating play and conduct of players; preserving
order, and providing safety for the TENNIS CENTER and its guests.
1.1.2. Provide courteous and informative tennis instruction and all
services customarily provided by a tennis professional. Ensure that qualified instructors
teach private, semi-private and group lessons for all ages and all skill levels.
1.1.3. Take reasonable steps to improve the TENNIS CENTER; be a
good steward of it; monitor, inspect and properly manage the facilities and grounds;
maintain tennis courts in good playing condition; on a daily basis sweep and clean the
tennis courts; repair and replace court nets and windscreens as required. The City shall
be responsible for the cost of replacing court nets and windscreens in accordance with
Section 2.1.
1.1.4. Schedule tournaments and other tennis activities with special
interest groups, private groups, tennis clubs, school interests, or any of these to assure
the best overall, well-rounded tennis program for the community while incorporating
public play and use of facilities in the overall program.
1.1.5. Maintain, sell, and rent merchandise, supplies, and equipment to
meet customer demand and suitable for use at the TENNIS CENTER. Operate,
manage and supervise a fully stocked pro shop, with services including but not limited
to a complete selection of top of the line tennis equipment and attire for men, women
and juniors. Operate, manage and supervise the sale and repair of tennis rackets and
other tennis related equipment.
1.1.8. Operate, manage and supervise the clubhouse, which services
may include but not be limited to food and beverage service or catering as permitted by
the CITY, the County of Orange Health Care Agency and the California Department of
Alcoholic Beverage Control
1.1.7. Run the TENNIS CENTER in an ethical fashion; Be dedicated to
the highest ideals of honor and integrity in all relationships so that operation of the
TENNIS CENTER may merit the respect and confidence of the City Manager, and of
the public. Maintain proper financial records and procedures. Conduct criminal
background checks and fingerprinting of all employees who contract for or provide
tennis instruction to any person under the age of 18.
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1.1.8. Organize and operate recreational and competitive tennis
programs, including, for example, singles and doubles nights, recreation and
competitive ladders, age and/or gender-specific activities, instructional clinics and
academies.
1.1.9. Promote and market the TENNIS CENTER, include the tennis
courts, clubhouse, pro shop and other pertinent areas, in a manner calculated to
enhance revenue flow to the CITY and in a manner that will. provide quality service for
public and private use. Such efforts may include outreach and advertising efforts,
subject to CITY approval. .
1.1.10. Gather information about program participants and facility
user satisfaction, and share such information with CITY on a regular basis.
1.1.11. Manage the TENNIS CENTER so that all facilities, buildings,
structures, improvements, fixtures, trade fixtures, equipment, and utility systems are in
good, safe, operating, usable and sanitary order and condition.
1.1.12. Promptly notifir the CITY when TENNIS CENTER facilities
require repair, replacement, rebuilding, or restoration.
1.1.13. Keep interiors of all buildings including restrooms,
furnishings, and fixtures in a safe and sanitary condition.
1.1.14. Keep the TENNIS CENTER clear of trash, debris, and
graffiti.
1.1.15. Provide and maintain court cleaning equipment, empty trash
receptacles on individual courts, and place trash bins in suitable locations for waste
removal services.
1.1.16. Use reasonable efforts to prohibit intoxicated persons,
profane or indecent language, or boisterous or loud conduct in or about the TENNIS
CENTER and will call upon the aid of the CITY police department to assist in
maintaining peaceful conditions.
1.2. CONTRACTOR hereby designates Jacobson-Gory as the Principal
Operator for purposes of this Agreement. Jacobson-Gory shall be primarily responsible
for the day-to-day management of the TENNIS CENTER in accordance with the terms
and conditions set forth in this Agreement. CITY is retaining CONTRACTOR based on
and for Jacobson-Gury's special expertise and experience. Thus, Jacobson-Gory shall
personally perform or supervise all of the services required under this Agreement, and
CONTRACTOR agrees that it will not hire any subcontractor or third party to provide or
pertorm the services required under this Agreement, except tennis pros, office
personnel, and such personnel as required.
1.3. CONTRACTOR must maintain the following operating hours for the
TENNIS CENTER: 7:30 a.m, to 9:30 p.m., Monday through Friday; and 7:30 a.m. to
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5:30 p.m. on Saturdays and Sundays. Prior to December 15 of each year,
CONTRACTOR and CITY will develop a holiday schedule for the following year.
1.4. CONTRACTOR must not permit any children under the age of 16 to use
the fdness center, lockers, spa, or sauna, except that members the Los Alamitos High
School may use the TENNIS CENTER in accordance with Section 3 of this Agreement.
1.5. CONTRACTOR shall pay all costs and expenses related to staffing and
employee payroll, office and athletic supplies and inventory, accounting, telephone
service, bank charges on credit card transactions, and license fees, as set forth in
Exhibit B (Management Proposal). CONTRACTOR will deduct such costs and
expenses from revenue prior to disbursing the revenue to the CITY pursuant to 1.7(1)
below.
1.8. CONTRACTOR must collect all usage fees required by the CITY for use
of the TENNIS CENTER, including but not limited to membership fees, rental fees, pay-
to-play fees, and tournament fees in accordance with the CITY's adopted fee schedule,
based on costs reasonably borne. CONTRACTOR shall not charge any fee in excess
of the fees established by the CITY Council nor shall CONTRACTOR waive fees for any
person or organization without the CITY's prior written approval. Nothing in this
Agreement shall be construed as limiting the CITY's ability to establish and alter usage
fees for the TENNIS CENTER.
1.7. On the 15th day of every month, CONTRACTOR must deliver to CITY: (1)
all revenues from membership fees and dues, tournament fees, pay-to-play fees, facility
leasing, personal training, and vending machines that were generated during the
previous month, less the costs and expenses deducted pursuant to 1.5 above; (2) 10%
of the gross receipts from pro shop sales and food and beverage sales; and (3) an
itemized statement of TENNIS CENTER revenues and expenses from the previous
month.
1.8. CONTRACTOR must maintain complete and accurate records of TENNIS
CENTER revenues and expenses for the term of this Agreement, inclusive of any
extensions, and for one year thereafter. All such records must be clearly identified as
being associated with this Agreement. CONTRACTOR must meet on a monthly basis
with the CITY or its designated representative, during normal business hours, to
examine, audit, and make transcripts or copies of such records. CONTRACTOR must
allow CITY or its designated representative to inspect during normal business hours, all
work, data, documents, proceedings, and activities related to this agreement during the
term of this Agreement, and for a period of one year thereafter.
1.9. CONTRACTOR must perform all Services under this Agreement in a
skillful and competent manner, in accordance with the standard of care generally
exercised by like professionals under similar circumstances and in a manner reasonably
satisfactory tc CITY. CONTRACTOR represents and warrants that it has all licenses,
permits, qualifiptions and approvals of whatever nature that are legally required to
practice its profession and to perform the work hereunder. CONTRACTOR further
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represents and warrants that it shall keep in effect all such licenses, permits, and other
approvals during the term of this Agreement, including, without limitation, any liquor
license obtained by CONTRACTOR.
1.10. In performing this Agreement, CONTRACTOR must comply with all
applicable provisions of federal, state, and local law.
1.11. CONTRACTOR will not be compensated for any work performed not
specified in the Agreement unless the CITY authorizes such work in advance and in
writing.
2.0 CITY's Responsibilities
2.1. CITY shall be responsible for the paying all costs and expenses related to
water, gas and electric, janitorial services and supplies, landscaping, facility
maintenance and repair, security, and pest control, as set forth in Exhibit B.
2.2. CITY shall pay CONTRACTOR $5,000 per month, due on the 15th of
every month.
2.3. If the number of TENNIS CENTER members exceeds 175 persons, CITY
shall pay CONTRACTOR 10% of the membership fees generated by the number of
members in excess of 160 persons. If the number of TENNIS CENTER members
exceeds 190 persons, CITY shall pay CONTRACTOR 15°h of the membership fees
generated by the number of members in excess of 190 persons. If the number of
TENNIS CENTER members exceeds 210 persons, CITY shall pay CONTRACTOR 20%
of the membership fees generated by the number of members in excess of 210
persons. For these purposes, TENNIS CENTER membership does not include
members of the fitness club.
2.4. Upon consulting with CONTRACTOR, CITY shall establish fees and rates
for the use the TENNIS CENTER facilities by CITY Council resolution.
2.5. CITY agrees that ff during the course of the Agreement, CONTRACTOR
identifies new revenue streams, the CITY will, upon CONTRACTOR's request, entertain
negotiations regarding additional compensation for CONTRACTOR for the provision of
additional services.
2.6. CITY may in its sole discretion close the TENNIS CENTER to use by the
public. Whenever possible, the CITY shall provide CONTRACTOR with advance notice
of any unscheduled closures. Closures will be kept to a minimum when the TENNIS
CENTER is in usable condkion. Priority will be given to maintenance needs and
renovation periods.
3.0 Use By Los Alamitos High School Tennis Teams
3.1. Unless otherwise directed by CITY, CONTRACTOR shall allow all
members of the Los Alamitos High School boys' and girls' tennis teams (either being a
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"Team") and the Teams' coaches to use the tennis courts at the TENNIS CENTER
without charge for individual practice, team practice, or team tournaments between the
hours of 1:00 p.m. and 5:00 p.m., Monday through Friday during their respective high
school tennis seasons, subject to the terms of any joint-use agreement between CITY
and the Los Alamitos Unified School District related to the use of the TENNIS CENTER.
Girls' team members and coaches may use the TENNIS CENTER during its season,
currently September through November. Boys' team members and coaches may use
the TENNIS CENTER during its season, currently March through May. CONTRACTOR
shall require all students and coaches entitled to use the TENNIS CENTER pursuant to
this Section 3.0 to present a valid Los Alamitos High School identification card and sign
in at the TENNIS CENTER office prior to use.
3.2. CONTRACTOR shall consult with CITY and representatives of the Los
Alamitos Unified School District to coordinate and schedule use of the TENNIS
CENTER by the Los Alamitos High School boys' or girls' tennis team.
4.0 Term
This term of this Agreement shall commence January 1, 2009 and continue until
December 31, 2014 unless previously terminated as provided by Section 6.0 of this
Agreement. By written amendment, the Parties may extend the Agreement for up to 2
addftional 5-year terms, and exercised upon giving 90 days written notice prior to the
end of each 5-year term. Each such extension will be subject to re-negotiation of all
terms and conditions of this agreement.
5.0 Biannual Consu{tation
The Parties shall meet at least twice a year to discuss the status and crondition of
the TENNIS CENTER and the performance of this Agreement.
6.0 Termination
6.1. Either party may terminate this Agreement without cause upon 90 days
written notice.
6.2. CITY may terminate this Agreement:
6.2.1. Upon 30 days written notice to CONTRACTOR in the event of
substantial breach of the Agreement by CONTRACTOR. CONTRACTOR shall
discontinue all services within 10 days of receipt of such notice, unless otherwise
instructed by CITY in writing, and CONTRACTOR shall be liable to CITY for any
reasonable additional costs incurred to correct or cure unsatisfactory work pertormed by
CONTRACTOR which, at CITY's discretion, must be revised, in part or in whole, to
complete services that were to be performed by CONTRACTOR hereunder.
6.2.2. Upon 10 days written notice to CONTRACTOR if CONTRACTOR
fails to provide satisfactory evidence of renewal or replacement of comprehensive
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general liability insurance as required by this Agreement at least 20 days before the
expiration date of the previous policy.
7.0 Party Representatives
7.1. The City Manager is CITY's representative for purposes of this
Agreement.
7.2. Jacobson-Gury is CONTRACTOR'S sole representative for purposes of
this Agreement.
8.0 Notices
8.1. Ali notices permitted or required under this Agreement shall be deemed
made when personally delivered or when mailed 48 hours after deposit in the U.S. Mail,
first class postage prepaid and addressed to the party at the following addresses:
To CITY: City of Seal Beach
211 8th Street
Seal Beach, California 90740
Attn: City Manager
Wdh a copy to: Seal Beach City Attorney
355 S. Grand Avenue
40th Floor
Los Angeles CA 90071-3101
To CONTRACTOR: First Serve Tennis, Inc.
1040 Park Avenue
Long Beach, CA 90804
Attn: Cathy Jacobson-Gury
8.2. Actual notice shall be deemed adequate notice on the date actual notice
occurred, regardless of the method of service.
9.0 Independent contractor
9.1. CONTRACTOR is an independent contractor and not an employee of the
CITY. All services provided pursuant to this Agreement shall be performed by
CONTRACTOR or under its supervision. CONTRACTOR will determine the means,
methods, and details of performing the services. Any additional personnel performing
services under this Agreement on behalf of CONTRACTOR shall also not be employees
of CITY and shall at all time be under CONTRACTOR'S exclusive direction and control.
CONTRACTOR shall pay all wages, salaries, and other amounts due such personnel in
connection with their performance of services under this Agreement and as required by
law. CONTRACTOR shall be responsible for all reports and obligations respecting such
additional personnel, including, but not limited to: social security taxes, income tax
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withholding, unemployment insurance, disability insurance, and workers' compensation
insurance.
9.2. CONTRACTOR shall indemnify and hold harmless CITY and its elected
officials, officers and employees, servants, designated volunteers, and agents serving
as independent contractors in the role of CITY or agency officials, from any and all
liability, damages, claims, costs and expenses of any nature to the extent arising from
CONTRACTOR'S alleged violations of personnel practices. CITY shall have the right to
offset against the amount of any fees due to CONTRACTOR under this Agreement any
amount due to CITY from CONTRACTOR as a result of CONTRACTOR'S failure to
promptly pay to CITY any reimbursement or indemnification arising under this Section 9.
10.0 Assignment
CONTRACTOR must not assign or transfer any interest in this Agreement
whether by assignment or novation, without the prior written consent of CITY. Any
purported assignment without such consent shall be void and without effect.
11.0 Insurance
11.1. CONTRACTOR must not commence work under this Agreement until it
has provided evidence satisfactory to the CITY that CONTRACTOR has secured all
insurance required under this Section in the form attached hereto as Exhibit A.
CONTRACTOR must furnish CITY with original certificates of insurance and
endorsements effecting coverage required by this Agreement on forms satisfactory to
the CITY. The certificates and endorsements for each insurance policy must be signed
by a person authorized by that insurer to bind coverage on its behaff, and must be on
forms provided by the CITY if requested. All certificates and endorsements must be
received and approved by the CITY before work commences. The CITY reserves the
right to require complete, certified copies of all required insurance policies, at any time.
11.2. CONTRACTOR must, at its expense, procure and maintain for the
duration of the Agreement, insurance against claims for injuries to persons or damages
to property that may arise from or in connection with the performance of this Agreement.
Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:
VIII, licensed to do business in California, and satisfactory to the CITY. Coverage must
be at least as broad as the latest version of the following: (1) General Liability:
Insurance Services Office Commercial General Liability coverage (occurrence form CG
0001); and (2) Automobile Liability: Insurance Services Office Business Auto Coverage
form number CA 0001, code 1 (any auto). CONTRACTOR must maintain limits no less
than: (1) General Liability: $1,000,000 per occurrence for bodily injury, personal injury
and property damage and ff Commercial General Liability Insurance or other form with a
general aggregate limit is used, either the general aggregate limit shall apply separately
to this Agreement/location or the general aggregate limit shall be twice the required
occurrence limk; and (2) Automobile Liability: $1,000,000 per accident for bodily injury
and property damage.
-9-
11.3. The insurance policies must contain the following provisions, or
CONTRACTOR must provide endorsements on forms supplied or approved by the
CITY to state: (1) coverage shall not be suspended, voided, reduced or canceled except
after 30 days prior written notice by certified mail, return receipt requested, has been
given to the CITY; (2) any failure to comply with reporting or other provisions of the
policies, including breaches of warranties, shall not affect coverage provided to the
CITY, its directors, officials, officers, (3) coverage must be primary insurance as
respects the CITY, its directors, officials, officers, employees, agents and volunteers, or
if excess, must stand in an unbroken chain of coverage excess of the CONTRACTOR's
scheduled underlying coverage and that any insurance or self-insurance maintained by
the CITY, its directors, officials, officers, employees, agents and volunteers shall be
excess of the CONTRACTOR'S insurance and must not be called upon to contribute
with it; (4) for general liability insurance, that the CITY, its directors, officials, officers,
employees, agents and volunteers shall be covered as additional insureds with respect
to the services or operations performed by or on behalf of the CONTRACTOR, including
materials, parts or equipment famished in connection with such work; and (5) for
automobile liability, that the CITY, its directors, officials, officers, employees, agents and
volunteers shall be covered as additional insureds with respect to the ownership,
operation, maintenance, use, loading or unloading of any auto owned, leased, hired or
borrowed by the CONTRACTOR or for which the CONTRACTOR is responsible.
11.4. All insurance required by this Section must contain standard separation of
insureds provisions and must not contain any special limitations on the scope of
protection afforded to the CITY, its directors, officials, officers, employees, agents, and
volunteers.
11.5. Any deductibles or self-insured retentions must be declared to and
approved by the CITY. CONTRACTOR guarantees that, at the option of the CITY,
either: (1) the insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the CITY, its directors, officials, officers, employees, agents, and
volunteers; or (2) the CONTRACTOR shall procure a bond guaranteeing payment of
losses and related investigation costs, claims and administrative and defense expenses.
12.0 Indemnification, Hold Harmless, and Duty to Defend
12.1. CONTRACTOR must indemnify, and hold the CITY, its officials, officers,
employees, volunteers and agents (collectively "CITY'S Indemnitees") free and harmless
from any and all claims, demands, causes of action, costs, expenses, liability, loss,
damage or injury, in law or equity, to property or persons, including wrongful death, in
any manner arising out of or incident to any acts or omissions of CONTRACTOR, its
employees, or its agents in connection with the performance of this Agreement,
including without limitation the payment of all consequential damages and attorneys
fees and other related costs and expenses. With respect to any and all such aforesaid
suits, actions, or other legal proceedings of every kind that may be brought or instituted
against CITY'S Indemnitees, CONTRACTOR must defend CITY'S Indemnitees, at
CONTRACTOR'S own cost, expense, and risk, and must pay and satisfy any judgment,
award, or decree that may be rendered against CITY's Indemnitees. CONTRACTOR
-10-
must reimburse CITY and its directors, officials, officers, employees, agents and/or
volunteers, for any and all legal expenses and costs incurred by each of them in
connection therewith or in enforcing the indemnity provided by this Section 12.1.
CONTRACTOR'S obligation to indemnify shall not be restricted to insurance proceeds, if
any, received by the CITY, its directors, officials, officers, employees, agents or
volunteers. All duties of CONTRACTOR under this Section 12.1 shall survive
termination of this Agreement.
12.2. CITY must indemnify, and hold CONTRACTOR, its officials, officers,
employees, volunteers and agents (collectively "CONTRACTOR'S Indemnitees' free
and harmless from any and all claims, demands, causes of action, costs, expenses,
liability, loss, damage or injury, in law or equity, to property or persons, including
wrongful death, in any manner arising out of or incident to any acts or omissions of
CITY, its employees, or its agents in connection with the performance of this
Agreement, including without limitation the payment of all consequential damages and
attorneys fees and other related costs and expenses. With respect to any and all such
aforesaid suits, actions, or other legal proceedings of every kind that may be brought or
instituted against CONTRACTOR'S Indemnitees, CITY must defend CONTRACTOR'S
Indemnitees, at CITY's own cost, expense, and risk, and must pay and satisfy any
judgment, award, or decree that may be rendered against CONTRACTOR'S
Indemnitees. CITY must reimburse CONTRACTOR and its directors, officials, officers,
employees, agents and/or volunteers, for any and all legal expenses and costs incurred
by each of them in connection therewith or in enforcing the indemnity provided by this
Section 12.2. CITY's obligation to indemnify shall not be restricted to insurance
proceeds, if any, received by the CONTRACTOR, its directors, officials, officers,
employees, agents or volunteers. All duties of CITY under this Section 12.2 shall
survive termination of this Agreement.
13.0 Equal Opportunity
CONTRACTOR affirmatively represents that it is an equal opportunity employer.
CONTRACTOR must not discriminate against any subcontractor, employee, or
applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, sexual orientation, or age. Such non-discrimination includes, but is not
be limited to, all activities related to initial employment, upgrading, demotion, transfer,
recruitment or recruitment advertising, layoff, or termination.
14.0 Labor Certification
By its signature hereunder, CONTRACTOR certifies that it is aware of the
provisions of Section 3700 of the California Labor Code that require every employer to
be insured against liability for Worker's Compensation or to undertake self-insurance in
accordance with the provisions of that Code, and agn:es to comply with such provisions
before commencing the performance of the Services,
-11-
15.0 Entire Agreement
This Agreement contains the entire Agreement of the parties with respect to the
subject matter hereof, and supersedes all prior negotiations, understandings, or
agreements. This Agreement may only be modified by a writing signed by both parties.
16.0 Severability
The invalidity in whole or in part of any provisions of this Agreement shall not
void or affect the validity of the other provisions of this Agreement.
17.0 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
18.0 No Third Party Rights
No third party shall be deemed to have any rights hereunder against either Party
as a result of this Agreement.
19.0 Waiver
No waiver of any default shall constitute a waiver of any other default or breach,
whether of the same or other covenant or condition. No waiver, benefit, privilege, or
service voluntarily given or performed by a Party shall give the other Party any
contractual rights by custom, estoppel, or otherwise.
20.0 Prohibited Interests
CONTRACTOR maintains and warrants that it has not employed nor retained
any company or person, other than a bona fide employee working solely for
CONTRACTOR, to solicit or secure this Agreement. Further, CONTRACTOR warrants
that it has not paid nor has it agreed to pay any company or person, other than a bona
fide employee working solely for CONTRACTOR, any fee, commission, percentage,
brokerage fee, gift or other consideration contingent upon or resulting from the award or
making of this Agreement. For breach or violation of this warranty, CITY has the right to
rescind this Agreement without liability. For the term of this Agreement, no member,
officer or employee of CITY, during the term of his or her service with CITY, shall have
any direct interest in this Agreement, or obtain any present or anticipated material
benefit arising therefrom.
21.0 Attorneys' Fees
If either Party commences an action against the other Party, either legal,
administrative or otherwise, arising out of or in connection with this Agreement, the
prevailing Party in such litigation shall be entitled to have and recover from the losing
Party all of its attorney's fees and other costs incurred in connection with such action.
-12-
22.0 Corporate Authority
The persons executing this Agreement on behalf of the parties hereto warrant
that they are duly authorized to execute this Agreement on behalf of said parties and
that by doing so, the parties hereto are formally bound to the provision of this
Agreement.
23.0 Exhibits
23.1. All exhibits referenced in this Agreement are hereby incorporated into the
Agreement as if set forth in full herein. In the event of any material discrepancy
between the terms of any exhibit so incorporated and the terms of this Agreement, the
terms of this Agreement shall control.
23.2. Exhibit B, Management Proposal, delineates the respective financial
obligations of the Parties with respect to the TENNIS CENTER. The numerical figures
included in Exhibit B are included solely for the purpose of illustration and shall not be
construed as a guarantee by either Party of revenue to be generated or imposing on
either party any mandatory level of expenditure.
IN WITNESS WHEREOF, the Parties hereto, through their respective authorized
representatives have executed this Agreement as of the date and year first above
written.
CITY OF SEAL BEACH
By: ~'~~
David Car any,
City Manager
Attest:
By: ate,/
Linda Devine, City Clerk
Approved as to Form:
By:
n Barrow City Attorney
FIRST
By:
Name:Cathy Jackson-Guzy
Its: Chief Executive Officer
-13-
ACORD CERTIFICATE OF LIABILITY INSURANCE
R~~ (510) 547-7400 FAX (510) 547-3159 THIS CERTIFICATE IS ISSUED AS ,
irennan & Associates ONLYAND CONFERS NO RIGHTS
Li tense k 0649629 HOLDER. TNIS CERTIFICATE DOE
T OV E AFFORDE
5001 Airport Plaza Drive, k1ZS
Long Beach, C4 90815 INSURERS AFFORDING COVERAGE
Firt Serve Tennis, Inc.
1040 Park Avenue
Long Beach, CA 90804
INSUREA A:
INSURER B•
INSURER C.
INSURER D
D.TE PGwoirvrn
OF
NAIL k
THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTW ffHSTANDING
ANY REQUIREMEM, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT W f111 RESPECT TO W HICH THIS CERTFICATE MAY BE ISSUED OR
MAY PERTAIN, THE INSURANCE AFFORDED BV THE P'OLN:IEB DESCRIBED HEREIN 18 SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE L1MRS SHOWN MAV HAVE BEEN REDUCED BY PAID CLAIMS.
SR TYPE OF BIBURANCE POLICY NUYBER POLKY EFFECTNE POLICY ENPW/dN1N LIMRf I
GENEAALUAetm PA00000331488400 Ol/DS/2008 01/05/2009 EacNOCCURRENCE e 1 000,00 •
X COMMERCIAL GENERAL WBILITY DAtNGE TO RENTED f 300.00
CWMS MADE OCCUR MED EXP INry arse person) t S DO
\ PERSONALS ADV INIURY f 1,000 O
GENERALAGGREGATE t Non
GENT AGGREWTE LIMn APPLIES PEA: PRODUCTS-rAMP/OP AGG i 2,000 OD
X Poucr ,PIERS LOC
AIIT DMDBEE LWEJTY
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f
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ALIOWNEO NJTOS BODILY INJURY
SGIEOUIID AUTOS IP• PNeoN t
HIRm AUTOS BODILY INILIRr
i
NON-0WN®AUTOS (Pel Ae9tlenU
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m.l.=a.Au
WRAGE LMBLLRY AUTO ONLY-EA ACCIDENT t
ANY AUTO OTHER THAN EA ACC i
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[YCEigNMBREUA WBDJT' EACH OOGURRCNCE i
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VlOP4~CONPiNYTgN ANO WC STATU- OTH-
EfIPLOYPAr W&LITV
ANY PROPRIETORIPARiNEfUE71ECUTNE
EL EACX ACCIDENT
i
OFFICEWMEMBER EXCLIAED7 EL DISEASE - FA EMPLOYE S
H pm, tlnenbF NMe,
SPECIAL PROMSIDN86sbN
EL DISEASE-POLIO-UNIT
t
OTCE
8PP PA00000331488400 01/05/2008 Ol/OS/20D9 15,000
~ l:
c 2: BPP/building 20,000/61,500
ecialFrm Replacement Cost, 52,500 ded
LO DAY$ FOR NON-PAYMENT OF PREMIUM
Evidence Gf Insurance
(CORD 2H (LODT/OB)
BNOULO ANY OFTNE ABDYE PUCRNlED POLICIES BE CANCELLED BEFORE THE
E7fPINATgN GATE TNEIIEOF, THE ISSUING DiSOREA WLLl ENDEAVOR M YALL
3O° DAn vmmeN NOTICE TO THE CE1171PN:ATE NOLOER NAMED TO THE IEFT,
BUT FAIWRE TO MALL BMCN NOTICE 9NpLL DNWSE NO OBLNJITIDN OR LWBfJTY
/~
OACORD CORPORATION 1B8B
EXHIBIT B
MANAGEMENT PROPOSAL
F.irst'Serve`,Res dnsitiilit , Ci 'Re"s ons~bik ';'::~ Re'veriue%lf`,~:''•°a
E`m' 1o°ee"P„„' roll'~r.~".~ $ 62.000.00
Maiketln ~='.w; ~_•'.-~~~ S 3,000.DO
Office;Su lizs~.c=~~~ S 3,SD0.00
Workman s.Corn °' 3 4,000.00
P.bsta"~'~^~.~ S 400.00
P,a ioil:7azes~.~~=.,~.;:.'•~.g S 21 300.00
Acc`ountin Fees~y°:.+"»€;n"i: $ 2000.00
Tele IibneLt'a: S 2 000.00
Facili ";Im rfivements"'I S 12,000.00
Barik;Cha-es~i`''~t~.-'~'.~`- S 3,500.00
License'.Fees'~ii~'^':.=: S 200.00
Auto 8bF6e7~@,~'~',f•"~'-'~ $ 2,000.00
Geneial:L'ia6il '~ S 1 500.00
Ga`3i&iElect~ic~t~~: $ 30 700.00
9Va"ter""'- =}~Sy'~•"':; r
4V S 20 300.00
+ 23 800.00
tlariitoiia"I?Su"' ii:s* r~ S 3,000.00
Land"sca iin ,,,~;~*~e~ft $ 52,800.00
INiscellaneous'.Wridsca`in $ 6,000.00
IiAa`i'ntenance:&?Re air~ivrn*' S 20,000.00
Se`curi ~~f':~il`~ S 700.00
P.estSCoritrol~T~-~'~~ S 1,800.00
1' a ""ers'=Dta'~, v~: x 5 60,000.00
Fi1e`mb`ershi tOu`es~? S 264,OOD.00
:f.•oGinamen'MSocial.Fee~. S 2,500.00
P.ro.Fees`~r:~.'~~'F:F $ 60,000.00
lJleich~hdise~`, S 5,500.00
P,a~&%t?la _~°„$~'~ g 6.000.00
Foodiil?Bevera a ..~ •-
Vendlii MacNines~'
CoiitiactLaGRerital'~ «
Lea'sl'n'Cliibliou's"e°~~„~._~; •«
P.e7sonak.Tiainei~ "~`;
S 117,400.00 S 219 100.00 S 338,000.OD
First Serve Responsibilities S 117,400.00
City of Seal Beach Responsibilfties + $ 219,100.00
Total Cost $ 338,500.00
Revenue $ 338,000.00
Total Cost - S 336,5D0.00
Total Revenue $ 1,500.00
..~
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 vIASTER JOINT-USE AGREEMENT FOR USE OF SHARED SITES
("Agreement") is made as of the 14th day of October , 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
S7?96-0001\1066103v6 doc final version 10/01/08
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RECITALS
A. Califomia Education Code Section 10900 e[ seg. authorizes and empowers school
distncts to cooperate with public agencies in organizing, promoting, and conducting joint
programs of recreation as well as education.
B. Califomia 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.
iVOW 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
57296-000111066103v6.doc final version 10/01/08
~..
AGREEMENT
../
0.0 DEFINITIONS. For purposes of thts 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 "IJUA": any separate agreement entered into
by the Pames 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 seg. ("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 bIASTER .TOINT USE AGREEMENT. This Agreement shall
commence upon the Effective Date, and rematn in effect for five (5) yeazs. 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 WA'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 to 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
57396-0001\1066103v6.doc final version IOI01/OB
~.. .i
for any such Government Grant must be approved in advance by the other Party, which approval
shall not be unreasonably withheld.
4.0 EiVIERGENCY NEED. Nothing in this Agreement or any WA 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.TOINT USE AGREE1yIENTS.
5.1 Descriptions of each individual joint use project are set forth in the UUA's
attached hereto as Exhibit A. To the extent that any provision in any of the UUA's conflicts with
any provision in this Agreement, this Agreement shall prevail unless modifications are mutually
agreed upon in each UUA.
5.2 Upon the effective date of this Agreement, this Agreement shall govern the
following UUA'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. S, for the Seal Beach Tennis Center.
5.3 The Parties may enter into additional IJUA's, and any such WA's shall be
subject to all provisions in this Agreement as if expressly stated in that WA.
6.0 ANNUAL COMMITTEE. The Parties shall establish a committee to meet annually to
discuss issues regarding the Sites, this Agreement, and the WA'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 respecnve
designees shall be ex officio members of the committee.
7.0 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 UUA.
No pas[, 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 WA shall remain that Party's separate
property.
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57?96.0001\1066I03v6.doc final version 10/(11/08
~ ..i
7.3 Upon the expiration or termination of a UUA, 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 UUA's.
9.0 DONATIONS. All Donations received specific to one of the parties' sites under this
agreement, shall be used as deemed appropriate by the recipient. However, if the donation will
in any way affect the other parties' physical property or financially impact the property in
anyway then the acceptance and usage of the donation must be mutually agreed and accepted by
both parties.
IU.U 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 Educatton 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
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5729(x0001\1066103v6.doc final vernon 10/OI/08
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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 UUA's shall be shared as follows unless
otherwise specified in the IJUA's.
12.1 Electricitv. 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 sepazate 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
UUA.
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.
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57296-0001\1066103v6.doc final version 10/01/OS
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16.0 FIELD USE; PRIORITY. ALLOCATION. FEES. AND PERMITS. The use of any
fields owned by the District shall be subject to the District's Schedule of Chazges, 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 omisstons 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 5ea1 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. Govemment Code Section 895.2 imposes certatn tort liability
jointly upon public agencies solely by reason of such public agencies being parties to an
agreement as defined in Govemment Code Section 895. Therefore, the Parties hereto, as
between themselves, pursuant to the authorization contained in Govemment 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.
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18.0 INSURANCE.
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18.1 General Insurance Requirements: For each of the UUA'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 UUA's, each Pariy 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
31 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 million
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 UUA'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.VI. Best rating of not less than A: VI[, or
as otherwise mutually agreed to by the Parties. In Iteu 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 UUA'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
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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.
20.0 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 Matl,
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) 79914711
With a copy to: Atkinson, Andelson, Loya, Ruud and Romo
17871 Pazk 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
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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 Emaloyees: 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 Citv 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.
23.0 MISCELLANEOUS.
23.1 Attotne s' Fees• Liti anon: 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 Dilutes. 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 azbitrator shall be selected, or in the absence of agreement, each Party
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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 decrsron
on the matter in question. The arbitrator shall decide each and every dispute in accordance with
the laws of the State of Califomia. The arbitrator's decision and award shall be subject to review
for ercors of fact or law in the Superior Court for the County of Orange, with a right of appeal
from anyjudgment issued therein.
23.4 Assienment: 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 Bindine 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 Severabilitv: 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 venting and
signed by the appropriate authonties 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 arc deemed
incorporated in this Agreement, whether or not actually attached.
23.10 Interoretation: 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 Califomia 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
warcant that: (i) such Party is duly organized and existing; (ii) they are duly authorized to
execu[e 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.
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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 onginal 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
outer 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 Ambieuities Not to be Construed Against Draftine 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 Partv Beneficiaries: Nothing in this Agreement shall be construed to confer
any rights upon any party not signatory to this Agreement.
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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
DISTRICT,
a California public school district
By:_
Patricia L. Meyer, A,s ant Su nd t,
Business Services
CITY OF SEAL BEACH,
a California charter city
By: °"'r~lr
David Carmany, City Manager
Attest:
sy: ~_~
Gall Dessert, Administrative Assistant
Approved as
s
dreas C. Chialtas, Esq.
tkinson, Andelson, Loya,
Ruud & Romo
Attest:
By:
Linda Devine, City Clerk
Approved as to Form:
By: ~ .Gl~-
Quinn Barr ,City Attorney
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EXHIBIT "A"
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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 7omt 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:
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