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CONTRACT 5229 Grant Agreement:. 0) q % GRANT COMMITMENT AGREEMENT SOUTH BAY SPORTS, HEALTH & RECREATION ( "SBS "), a California not - for - profit public corporation, the CITY OF EL SEGUNDO ( "City ") and the WISEBURN UNIFIED SCHOOL DISTRICT ( "WUSD ") enter into this Grant Commitment Agreement ( "Agreement ") as of the day of c�/?�Je"'/'� , 201 ( "Effective Date "). These parties may also be referred to in this Agreement individually as a "Party" and collectively as "Parties." RECITALS WHEREAS, WUSD and the City entered into an agreement on January 19, 2016 entitled "FIRST AMENDED AND RESTATED SETTLEMENT AGREEMENT BETWEEN THE WISEBURN UNIFIED SCHOOL DISTRICT AND THE CITY OF EL SEGUNDO" (the "Settlement Agreement ") whereby the Parties agreed to certain things and WUSD agreed, amongst other things, to construct the City of El Segundo — Wiseburn Unified School District Aquatics Center (the "Project ") on WUSD property located at 300 Duley Road, El Segundo, CA 90245; WHEREAS, under the Settlement Agreement, WUSD agreed to pay $6,000,000 towards the design and construction of the Project and the City agreed to pay $300,000 towards the design of the Project with an option to pay up to an additional $1,500,000 towards the construction of the Project should such funding be necessary for the completion of the Project; WHEREAS, the City and WUSD stipulated in the Settlement Agreement to cooperate in efforts to seek outside funding to help fund the completion of the Project; 1 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.00105Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 WHEREAS, the City is agreeing to exercise its option under the Settlement Agreement to provide an additional $1,500,000 to WUSD, pursuant to the terms and conditions of this Agreement, for the completion of the Project; however, the City and WUSD have determined that the budget to complete the Project, as approved under the Settlement Agreement, will exceed the funding that has been made available by the City and WUSD for the design and completion of the Project; WHEREAS, rather than reducing the cost of the Project though further value engineering, the elimination of elements or otherwise redesigning the Project at this time, the City and WUSD sought additional funding for the Project through grants, donations, and /or corporate sponsorships; WHEREAS, the City and WUSD have had discussions with SBS concerning the additional funding needed to complete the Project as conditionally approved by the City and WUSD; WHEREAS, SBS approves of the current Project design conditionally approved by the City and WUSD under the Settlement Agreement and SBS agrees to pay up to $6,000,000, subject to the terms and the conditions of this Agreement, from funds which have been provided to SBS to be used by WUSD to cover the estimated additional funding needed to construct the Project as currently and conditionally approved by the City and WUSD; WHEREAS, the Parties understand and agree that WUSD only has $6,000,000 available for the design and construction of the Project and WUSD cannot award a contract to any contractor or contractors for the completion of the Project unless all funding necessary to complete the Project, as currently and conditionally approved by the City and WUSD, is in WUSD's 2 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.0010-'Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 possession or is otherwise guaranteed to be paid in accordance with this Agreement to WUSD, in order to pay construction costs as they are incurred by WUSD, and which funds or guarantee must be obtained by WUSD prior to WUSD's issuance of contracts for the Project or applicable portion thereof; WHEREAS, the City and SBS understand and agree, subject to the terms of this Agreement, that WUSD may rely upon the funding that is being granted, provided and approved by SBS and the City for the completion of the Project, and WUSD may proceed with the procurement of all contracts necessary for the design and construction of the approved Project based on the funding being provided by SBS and City; WHEREAS, the Parties agree that all funding granted and approved by SBS and the City under this Agreement shall be timely provided to WUSD as required by this Agreement; WHEREAS, WUSD acknowledges and agrees that all funding provided by the City and SBS shall be expended in the manner provided for in this Agreement; NOW, THEREFORE, in consideration of the mutual terms, promises, covenants and conditions contained herein, the Parties agree as follows: ARTICLE I FUNDING FOR PROJECT 1. The budget for the completion of the Project, as approved by the City and WUSD, has been established to be $13,800,000 ( "Project Budget ") 3 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.0010-'Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 2. WUSD shall pay $6,000,000 for the design, planning, development, A/E oversight, inspection, construction administration and construction of the Project approved under the Settlement Agreement, 3. The City shall pay $1,800,000 to WUSD as required by Article II, Section 1 below for the design, planning, development, A/E oversight, inspection, construction administration and construction of the Project. 4. SBS shall pay an amount not to exceed $6,000,000 to WUSD as required by Article II, Section 2 below for the design, planning, development, A/E oversight, inspection, purchase of pool components, equipment and materials, construction administration and construction of the Project. 5. WUSD shall only use the funds provided by SIBS and the City pursuant to this Agreement for the design, planning, development, A/E oversight, inspection, purchase of pool components, equipment and materials, construction administration and construction of the Project and for no other purpose whatsoever. ARTICI F n PAYMENT TERMS AND CONDITIONS 1. The City shall pay $1,800,000 to WUSD for the completion of the Project as follows: a. $300,000 has been paid to WUSD by the City for Project design costs pursuant to the Settlement Agreement; 4 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.0010-'Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 b. Notwithstanding Section 7(E) of the Settlement Agreement, $750,000 shall be paid by the City to WUSD within thirty (30) calendar days from the date bids are awarded by WUSD to contractors for the construction of the Project. If the Parties determine that the Project cannot be completed within the Project Budget after bids are opened, then the City shall have no obligation to make this payment unless the Parties in their sole discretion renegotiate this Agreement; C. Notwithstanding Section 7(E) of the Settlement Agreement, $750,000 shall be paid by the City to WUSD within ninety (90) calendar days from the date payment is made by the City to WUSD pursuant to Article II, Section 1(b) above for the construction of the Project. If the Parties determine that the Project cannot be completed within the Project Budget after bids are opened, then the City shall have no obligation to make this payment unless the Parties in their sole discretion renegotiate this Agreement; d. WUSD shall provide written notice to SBS confirming the City's payments to WUSD under this Article II, Section 1. 2. SBS hereby grants and shall pay up to $6,000,000, pursuant to the terms and conditions of this Agreement, to WUSD for the completion of the Project as follows: a. In order to allow WUSD to obtain SBS' full contribution to the Project prior to issuing any construction contracts for the Project, within three business (3) days of the Effective Date, WUSD shall establish the appropriate WUSD interest - bearing school project fund, but not segregated from other WUSD project funds, which shall be named the "SBS Aquatics Center Improvement Escrow Account" ( "SBS Escrow Account ") solely 5 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.0010JAgreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 for the purpose of receiving, holding and disbursing funds deposited by SBS for the design, planning, development, A/E oversight, inspection, purchase of all pool components, equipment and materials, construction administration, and construction of the Project in accordance with this Agreement. All funds deposited by SBS into the SBS Escrow Account shall bear interest, which interest shall be calculated as a pro -rated interest calculation based on all funds held in WUSD's interest - bearing school project fund at the end of each month, within which the SBS Escrow Account is held. The funds held in the SBS Escrow Account, plus any accrued interest thereon, shall ensure that at all times that WUSD has sufficient funds available from SBS, subject to SBS' maximum funding commitment detailed in this Agreement, necessary to cover all amounts to be paid by WUSD, in advance of execution of contracts, for which WUSD has contracted with any entity providing for, and to otherwise make timely payments for the Project as they become due, b. SBS shall pay $500,000 to WUSD within seven (7) calendar days of the Effective Date as partial payment for the purchase of pool components, equipment and materials; C. WUSD shall provide SBS with five (5) business days advance written notice of the Board Meeting date for anticipated consideration and approval, by WUSD's Board, of the lowest responsible and responsive bids required for the completion of the Project. Within seven (7) business days after such Board approval but no earlier than January 19, 2017, SBS shall pay $5,500,000 to WUSD, for deposit into the SBS Escrow Account, as full payment by SBS of its portion of the partial Project costs, as defined in this Agreement, 6 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.00105Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 and for disbursement by WUSD in accordance with this Agreement. In no event shall WUSD's Board be required to approve any construction contracts with any of the approved low bidders for the completion of the Project unless SBS has paid $5,500,000 to WUSD for deposit into the SBS Escrow Account. Failure by SBS to make the timely payment provided by this Section shall result in such proposed construction contracts not being approved by the Board. Should such proposed construction contracts not be approved by the Board for any other reason, despite the timely deposit by SBS, then SBS' payment amount shall be returned by WUSD to SBS within ten (10) business days, unless otherwise agreed to in writing by WUSD and SBS. d. WUSD shall disburse funds from the SBS Escrow Account to pay for Project costs. WUSD shall at all times keep, or cause to be kept, books of account and other records showing the amounts deposited by SBS into the SBS Escrow Account and the amounts paid for Project costs, with reference to invoice numbers or other appropriate information identifying the invoices, draw requests or other documents upon which disbursements from the SBS Escrow Account were based. During regular business hours and after not less than three (3) business days' notice, SBS or its agents shall have access to and the right to inspect WUSD's books and records relating to the SBS Escrow Account, If SBS so requests, it or its designated agent, may make copies of such books or records, at SBS' expense, for audit or other examination. Interest accruing on funds deposited in the SBS Escrow Account shall be for the benefit of SBS. Any funds remaining in the SBS Escrow Account as of the date of approval by the Board of the Notice of Completion for the Project (other than retainages or holdbacks payable to contractors or consultants) 7 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.0010-'Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 Z shall be disbursed to SBS together with all accrued interest within sixty (60) days thereafter. e, If the Parties determine that the Project cannot be completed within the Project Budget after bids are opened, then SBS shall have no obligation to make the payments set forth in this Article II, Section 2, unless the Parties in their sole discretion renegotiate this Agreement. f. WUSD shall provide written notice to the City confirming SBS' payment to WUSD in accordance with this Article II, Section 2. ARTICLE III CONDITIONS FOR USE OF GRANTED AND APPROVED FUNDS 1. Upon WUSD's receipt of the granted funds from SBS under Article II, Section 2(b), WUSD shall use $600,000 of the $6,000,000 committed by WUSD for the completion of the Project to purchase pool components, equipment and materials. Total payment for the purchase of pool components, equipment and materials by WUSD shall be $1,100,000, inclusive of SBS' granted funds of $500,000, and such purchase and payment shall be made by WUSD within seven (7) days of WUSD's receipt of funding from SBS. 2. With the exception of the grant funding provided by SBS in accordance with Article II, Section 2(b) above, WUSD shall expend all funding budgeted for the completion of the Project by WUSD totaling $6,000,000, as well as the $1,800,000 provided by the City, before any SBS Escrow Account funds shall be utilized to cover the remaining design, planning, 8 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.001051greement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 development, A/E oversight, inspection, construction administration and /or construction costs of the Project. 3. Upon WUSD's expenditure of City and WUSD funds totaling $7,800,000, WUSD shall solely use the remaining SBS Escrow Account funds for the construction and completion of the Project, and such amount in excess of the first $7,800,000 spent on the Project shall not exceed $6,000,000, in total, without SBS' written approval. The Project funding paid by SBS to WUSD under this Agreement shall be reduced dollar for dollar to the extent the total Project costs for design, planning, development, A/E oversight, inspection, construction administration and construction are less than $13,800,000, and any funds remaining in the SBS Escrow Account shall be disbursed to SBS pursuant to Article II, Section 2(d) of this Agreement. ARTICLE IV MISCELLANEOUS TERMS AND CONDITION 1. Force Majeure The obligations of any party under this Agreement, and all deadlines by which any Party's obligations hereunder must be performed, shall be excused or extended for a period of time equal to any prevention, delay or stoppage in performance which is attributable to any strike, lock -out or other labor or industrial disturbance, regulatory delay, civil disturbance, act of a public enemy, war, riot, sabotage, blockade, embargo, lightning, earthquake, fire, storm, hurricane, tornado, flood, explosion or other delays not reasonably within the control of the Party performing the subject obligation ( "Force Majeure"). Any Party relying on a Force Majeure shall 9 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.0010-'Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 X229 give the other Parties reasonable notice thereof and the Parties shall use their reasonable, good faith efforts to minimize potential adverse effects from such Force Majeure and shall meet and confer on such issues to resolve the same. 2. Unforeseen Conditions In the event unforeseen conditions occur during the construction of the Project resulting in change orders that cause the Project's costs to exceed the Project Budget, the Parties agree to meet and confer in order to address and resolve the apparent deficiencies in the Project Budget, to approve the deletion of scope from the Project, to value engineer the Project scope, or to otherwise agree on how to complete the Project. Notwithstanding the foregoing, any Party to this Agreement may, but is not required to, fund all or any portion of the amount that the unforeseen condition or other event has caused the Project costs to exceed the Project Budget. The City, WUSD and SBS agree to meet and confer within five (5) business days of any written notice to all Parties by WUSD that an unforeseen condition or event has occurred that will cause the Project's costs to exceed the Project Budget. 3. Notices All notices, requests, consents, approvals, payments in connection with this Agreement, or communications that either Party desires or is required or permitted to give or make to the other Party under this Agreement, shall only be deemed to have been given, made and delivered, when (a) made or given in writing and personally served; or (b) deposited in the United States mail, certified or registered mail, return receipt requested, postage prepaid to the respective addresses of the Party as set forth below; or (c) delivered by a reputable overnight delivery service such as Federal Express, United Parcel Service, or DHL Worldwide Express, with charges 10 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.00105Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 prepaid, notice to be effective on delivery if confirmed by the delivery service. Either Party may from time to time designate other addresses for notice purposes by written notice to the other in accordance herewith. South Bay Sports, Health & Recreation Attention: Richard C. Lundquist, Chief Executive Officer 2041 Rosecrans Avenue, Suite 200 EI Segundo, CA 90245 Wiseburn Unified School District Attention: Tom Johnstone, Superintendent 13530 Aviation Boulevard Hawthorne, CA 90250 City of El Segundo Attention: Greg Carpenter, City Manager 350 Main Street EI Segundo, CA 90245 4. Entire Agreement and Amendments Must Be In Writin This Agreement contains the entire agreement between the Parties respecting all matters covered or mentioned in this Agreement, except with respect to the Settlement Agreement between the City and WUSD, and supersedes any and all prior agreements, arrangements, and /or understandings between the Parties including, but not limited to, any previous versions of this Agreement that may have been approved by the WUSD Board and not executed by the Parties, This Agreement may not be altered, changed or amended except by an instrument in writing specifically designated as an amendment to this Agreement and signed by all Parties hereto. The Parties acknowledge and agree that no prior information provided or statements made by agents of any Party ( "Prior Information "), other than the Settlement Agreement between the City and WUSD, have in any way induced the other Parties to enter into this Agreement. 11 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.00105Agreennent (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 5. Counterpart Language The Parties acknowledge that each has carefully read each and every provision of this Agreement and that each has fully entered into this Agreement as of the date first appearing above of its own free will and volition. Signatures obtained by facsimile or pdf shall be deemed original signatures and shall carry the same full force and effect of original signatures to bind the Parties to the terms and conditions of this Agreement. 6. Effect Of Recitals The Recitals set forth above are expressly incorporated herein to the body of this Agreement and are agreed upon as correctly setting forth the nature and substance of this Agreement. 7. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California. This Agreement shall be construed without the aid of any presumption or other rule of law regarding construction against the party drafting this Agreement or any part of it. In case any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such provision(s) had never been contained herein. 12 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.0010-'Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1 The Parties, through their authorized representatives, have executed this Agreement as of the day and year first written above. BY: SOUTH BAY SPORTS, HEALTH & RECREATION 2Z Name: Richard C. Lundquist Its: Chief Executive Officer Its: BY: CITY OF EL SEGUNDO Name: Its Name: Lawrence R. Mitchell Its: Treasurer P!D AS TO FOR CITY ATTORNEY 13 H: \Aquatics - Wiseburn - 300 Duley Road \South Bay Sports, Health & Recreation - Corporate Docs \SBS -WUSD Second Finalized Grant 005098.0010-'Agreement (With Escrow Account) - rev 2016- 12- 15.docx 14686416.1