CONTRACT 5585 Other Agreement No. 5585
FACILITY USE AGREEMENT
BETWEEN
EL SEGUNDO UNIFIED SCHOOL DISTRICT
AND
THE CITY OF EL SEGUNDO
FOR THE AQUATIC CENTER
THIS AGREEMENT made and entered into this 22nd day of January, 2019, by and
between the El Segundo School District (hereinafter "ESUSD"), a Califoriiia public school district
and the City of El Segundo (hereinafter "City"), a municipal corporation (individually a "Party" and
collectively"the Parties")
RECITALS
WHEREAS, Wiseburn Unified School District ("WUSD") owns a pool facility luiown as
the "El Segundo Aquatics Center" located on a portion of the property 201 N. Douglas, El Segundo,
CA 90245 (depicted on Exhibit A, the "Facilities") which are adjacent to the Da Vinci High
Schools;
WHEREAS, the City entered into a "Settlement Agreement" with WUSD dated May 22,
2013 as amended through the "First Amended and Restated Settlement Agreement" dated January
19, 2016, (collectively, the "Settlement Agreement") establishing the terms and conditions of the
construction, operation and use of the Facilities;
WHEREAS, the Settlement Agreement set forth the terms and conditions regarding the
operation, maintenance and general use of the Facilities and that WUSD will retain and hold title to
the Facilities;
WHEREAS, the Settlement Agreement also sets forth the sum of the terms and conditions
under which the City and WUSD will allow ESUSD to use the Facilities and allows for the City and
ESUSD to enter into separate agreements to establish the specific rights of ESUSD to use the
Facilities;
WHEREAS,pursuant to the Settlement Agreement, the City and WUSD intend to enter into
a Joint Use Agreement ("JUA") which will set forth that both the City and WUSD will agree to
allow ESUSD to use the Facilities for specific times during the term of this Agreement and any
amendments or extensions thereto;
WHEREAS, the Settlement Agreement and the City Joint Use Agreement (collectively the
"WUSD/City Agreements") will establish that the City and WUSD agree to allow ESUSD to use the
Facilities during the term of this Agreement and any amendments or extensions thereto;
WHEREAS,ESUSD desires to use the Facilities for school and recreation activities;
WHEREAS, the City desires to confirm and establish ESUSD's right to use the Facilities
pursuant to the WUSD/City Agreements for purpose of organizing and implementing community
recreation and school activities;
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NOW, THEREFORE, the Parties hereto agree as follows:
Section 1. Dela ipl ion of facilities. The Facilities consist of a swinuning pool and
associated facilities as depicted on Exhibit A.
Section 2. ESUSD Use,. The City, as part of its rights to operate and manage the
Facilities, hereby agrees to allow ESUSD to use the Facilities for conducting school related
activities pursuant to the terms and conditions set forth herein. ESUSD shall have the right to use
the competition pool (large pool) portion of the Facilities for its exclusive use for three (3) hours per
day on Mondays through Fridays starting a week prior to the conunencement of regular school year
classes until the last day of classes ("School Year"). Additionally, ESUSD shall have the right to
one (1) Exclusive Use Day of the Facilities during each School Year. The City shall not charge
ESUSD any fee for use of the Facilities. Upon request by ESUSD. the City may in its sole
discretion grant ESUSD additional use of the Facilities based upon availability. However, in
consideration for the use of the Facilities, ESUSD shall provide Equipment as set forth in Section 3
below.
Section 3. :.gllilr1771t1t. ESUSD confirms that it will reimburse the City within thirty
days of the City's purchase of the actual cost of aquatic-related equipment for use at the Facilities
set forth on Exhibit B in the amount up to, Four Hundred Thousand Dollars ($400,000.00) in value
(the "Equipment"). The City shall store the Equipment at the Facilities provided that the Facilities
include sufficient storage space to house and protect the Equipment from damage and theft. The
City, ESUSD and WUSD shall have the right to use the Equipment at during their respective use of
the Facilities.
A. Datna<Lye./Stolen , :Uipmei% The City shall repair or replace any Equipment
that is damaged as a result of the City's use of the Equipment,
B. EQ11iPQe11t, .ig1its. The City, at its sole discretion, may decide to temporarily
remove the Equipment from the Facilities to clean, repair or maintain the Equipment as the
City deems necessary. The City shall provide prior written notice to ESUSD and WUSD
before it removes the Equipment and will work with both ESUSD and WUSD to schedule
the removal at a time convenient for all parties. The City shall not be subject to any cost or
penalty for temporarily removing the Equipment other than the cost to repair or maintain the
Equipment.
Section 4. Term. Subject to Section 9 of this Agreement, the term of this Agreement
shall be from the Effective Date through that date which is ten (10) years from the Effective Date
("Tenn"). This Agreement may be extended for up to four (4) separate ten (10) year renewal
periods which must be approved in writing and which is subject to each Party's sole discretion.
Upon the expiration or termination of this Agreement, at any time or upon any grounds provided
herein, ESUSD shall vacate the Facilities by removing the Equipment and any other personal
belongings or accessories owned by ESUSD, or its employees and students. If the Agreement is
terminated prior to the end of the Tenn for any reason, the Parties shall establish a mutually
convenient time to allow ESUSD to enter the Facilities to remove the Equipment and all remaining
personal property,if necessary.
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A. WLR Sl)/CiIy t,,,reeinelris dwim, the Terni. The use rights of the Facilities
granted to ESUSD pursuant to this Agreement is provided in conjuncture with the rights
granted to the City in the WUSD/City Agreements. Should the WUSD/City Agreement
terminate before the end of the term set forth in Section 4 above, ESUSD may terminate this
Agreement pursuant to Section 9 and be entitled to reimbursement in accordance with that
Section. Furthermore, in the event WUSD no longer owns the Facilities at any time during
the Agreement but the City still retains the same legal rights to use the Facilities as set forth
in the WUSD/City Agreement, ESUSD's rights under this Agreement shall rernain
unchanged.
Section S. Conditions to Use.
A. E,SUSD {:iC110r I CI'lrWILIl). ESUSD shall be responsible for General Cleanup
during its use of the Facilities as set forth in this Agreement. As used herein, the tend
"General Cleanup" shall mean putting away any and all Equipment and supplies used,
picking up trash and similar related activities after every period of Facilities use by ESUSD.
B. City lel rinte ranee/1 wgir. The City shall ensure the Facilities are kept in
good repair and appearance, except for ordinary wear and tear, and will, with reasonable
promptness, ensure all necessary actions are taken to ensure the Facilities are operational
maintained in good condition to ensure the Facilities can be used by ESUSD as intended.
C. Conduct of, F.nlpj.��r,��rc�,s and Invitees. Each Party shall insure that all of its
employees, invitees, and all its other users of the Facilities will adhere to proper standards of
public conduct. If the City has specific rules or regulations applicable to the use of the
Facilities (the "Rules"),the City shall make such rules available to ESUSD in writing.
D. Utilities,. In no event shall ESUSD be responsible for payment of any utilities
associated with operation and use of the Facilities throughout the Term, including any and all
utilities used during ESUSD's use. The City shall take reasonable steps necessary to ensure
the Facilities receive complete and uninterrupted utilities during any and all scheduled
ESUSD use.
E. Access. The City shall provide ESUSD with access to the Facilities during
the times that the Facilities are scheduled for ESUSD's use.
F. Par ina), ESUSD shall be entitled to shared use of parking available at the
Facilities during its scheduled use.
Section 6. Insurance.
A. District's Duty to Insure;. District must keep in frill force and effect during the
term of this Agreement public liability insurance, insuring and protecting City, WUSD and
District from and against any and all liability of WUSD and City for damages arising out of
or connected with use by District, its agents, employees, permittees, and students of the
Facilities or any building, facility or equipment located thereon. All public liability insurance
required hereunder must be in the minimum amount of Ten Million Dollars ($10,000,000)
and a certificate of such insurance showing City and WUSD as additional insured must be
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provided to City, Said certificate must provide. that City will receive thirty (30) days' notice
of cancellation of said policy.
B. Ci_t1P'm in),uivto P isUlle. City must keep in full force and effect during the term
of this Agreement public liability insurance, insuring and protecting City and ESUSD from
and against any and all liability of ESUSD for damages arising out of or connected with use
by City, its agents, employees, and permittees of the Facilities or any building, facility or
equipment located thereon. All public liability insurance required hereunder must be in the
minimum amount of Ten Million Dollars ($10,000,000) and a certificate of such insurance
showing ESUSD as additional insured must be provided to ESUSD. Said certificate must
provide that ESUSD will receive thirty (30) days' notice of cancellation of said policy.
Section 7. Indemnification.
A. ESUSD's Indemnification. ESUSD shall defend, indemnify, and hold
harmless the City, its city council, officials, officers, agents and employees, from any cost,
expense, liability, loss, damage, injury or death to persons, or damage to or loss of property,
including City property arising out of District's use of the Facilities or any building, facility
or equipment located thereon.
B. C tv's lndelmifflc:ation. City shall defend, indemnify, and hold harmless the
District, its Governing Board, officials, officers, agents and employees, from any cost,
expense, liability, loss, damage, injury or death to persons, or damage to or loss of property,
including District property arising out of City's use of the Facilities or any building, facility
or equipment located thereon.
The provisions of this Section shall survive the termination or expiration of this Agreement.
Section 8. Scheduliiwz. In accordance with the terms and conditions of the WUSD/City
Agreements, representatives of WUSD, the City and ESUSD shall meet four times per year to
establish schedules for use of the Facilities ("Scheduling Meetings"). At each Scheduling Meeting,
WUSD, the City and ESUSD shall agree upon a schedule, in writing, for the upcoming six (6)
month term with respect to the use of the Facilities for purposes of coordinating use schedules
between WUSD, ESUSD and the City on week days during the School Year with regard to the
Competitive Pool and Exclusive Use Days located on the Facilities ("Master Calendar"). The
Therapy Pool (smaller pool), shall be open for public use or other scheduled use as determined by
the City in its sole discretion and no rights to use such pool are granted to ESUSD by this
Agreement or otherwise. The Therapy Pool shall be separated by appropriate barriers from the
Competitive Pool during those times that ESUSD is scheduled to use the Competitive Pool in
accordance with applicable state laws.
Once the Master Schedule is established as set forth herein, the Parties shall take all reasonable
actions necessary to avoid and prevent interference with any activity conducted by the Party using
the Facilities.
Section 9. Termination. Either Party may terminate this Agreement upon one (1) year's
prior written notice. If the City terminates the prior to the ten(10)year term set forth in Section 4 of
this Agreement, the City shall reimburse ESUSD on a pro-rata basis (based upon the number of that
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have elapsed under the Agreement compared to a 120 months) that amount paid by ESUSD to the
City pursuant to Section 3 of this Agreement.
Except as a result of an act of God, circumstances beyond the reasonable control of the City, the
actions of ESUSD and/or the involuntary destruction of the Facilities, if ESUSD is prevented from
using the Facilities pursuant to this Agreement at the times reserved for ESUSD pursuant to the
Master Agreement,including, but not limited to, any act that blocks or limits ESUSD's use or leaves
the Facilities in a state of disrepair that prevents ESUSD from Ailly using the Facilities, the Parties
will each use reasonable efforts to work collaboratively, and with WUSD, to provide an alternative
time to ESUSD to use the Facilities in addition to the times set forth in the Master Agreement, in
order to ensure ESUSD uses and programs are not unreasonably impacted.
Should such alternative scheduling not satisfy ESUSD's rights under this Agreement, or if this
Agreement or the WUSD/City Agreements are terminated or amended for any reason, the Parties
will each use reasonable efforts to coordinate and reschedule any ESUSD uses at the Facilities as
originally established in the Scheduling Meetings to the separate pool facility known as the "Urho
Saari Swim Stadium" or "The Plunge" located at 219 West Mariposa Avenue, El Segundo, CA
90245 (the "Plunge") in order to compensate for such disruption If ESUSD's use rights under this
Agreement are not met due to insufficient available time at the Facilities or the Plunge for a period
of thirty days or more, ESUSD may terminate this Agreement immediately, and shall be entitled to
reimbursement as set forth in this Section 9.
Section 10. l.e�_,al lnteniretatlon n; f::..:Insltrunient. This Agreement shall be governed by the
laws of the State of California.
Section 11. o.ti„cel. Any notice, request, information or other document to be given
hereunder to any of the Parties by any other Parties shall be in writing and shall be deemed given
and served upon delivery, if delivered personally, or three (3) days after mailing by United States
mail as follows:
If to ESUSD: EL SEGUNDO UNIFIED SCHOOL DISTRICT
Attn: Melissa Moore,Ed.D. Superintendent
641 Sheldon St.
El Segundo,CA 90245
Telephone: (310) 615-2650
Email:mmoore@esusd.kl2.ca.us
If to CITY: CITY OF EL SEGUNDO
City Clerk
350 Main Street
El Segundo, CA 90245
Any Party may change the address or persons to which notices are to be sent to it by giving the
written notice that such change of address or persons to the other Parties in the manner provided for
giving notice. The Parties will provide each other after-hours emergency contact phone numbers of
appropriate supervisory staff which shall be periodically updated.
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Section 12. t-iorne,s' Fees: lJOLuition. In the event any action or suit is brought by a
Party against another Party by reason of the breach of any of the covenants or agreements set forth
in this Agreement or any other dispute between the Paries concerning this Agreement. each Party
shall be responsible for its own attorney's fees and costs.
Section 13. Agreement Terms.
A. Si ns. The Parties shall both be allowed to hang or set up signage of
reasonable size and colors for events and to recognize the achievements of their student
athletes during their hours of use only. Such signage must be removed after use.
B. ,verability, 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.
C. 'Ent.ire. Avreement., WaiYers and Aniendnients. This Agreement incorporates
all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all
negotiations and previous agreements between the Parties with respect to all or part of the
subject matter thereof. All waivers of the provisions of this Agreement must be in writing
and signed by the appropriate authorities of the Party to be charged. Any amendment,
extension or modification to this Agreement must be in writing, authorized by the City
Council and ESUSD Board and executed by ESUSD and the City.
D. Execution in C.ountc��-nart. This Agreement may be executed in several
counterparts, and all so executed shall constitute one agreement binding on all Parties hereto,
notwithstanding that all Parties are not signatories to the original or the same counterpart.
E. Effect of Recitals. The Recitals above are deemed true and correct, are hereby
incorporated into this Section as though fully set forth herein, and ESUSD and the City
acknowledge and agree that they are each bound by the same.
P. Exhibits. Exhibit "A" attached to this Agreement are incorporated herein by
this reference and made a part hereof.
G. Cooperation. Both the City and ESUSD hereby agree to cooperate with each
other by executing such other documents or taking such other actions as may be reasonably
necessary to complete this transaction in accordance with this Agreement.
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IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the date
first above written.
CITY OF EL SEGUNDO
El SEGUNDO UNIFIED SCHOOL
DISTRICT
��. . Drew Boyles
Mayor
Melissa Moore,
Superintendent
Tracy Weaver,
City Cleric
APPROVED AS TO FORM:
...
City Attorney
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EXHIBIT "A"
DESCRIPTION AND MAP OF FACILITIES
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