CONTRACT 4887C Other Agreement No. 4887C
JOINT USE AGREEMENT BETWEEN
WISEBURN UNIFIED SCHOOL DISTRICT
AND
CITY OF EL SEGUNDO
FOR THE USE OF AQUATICS CENTER
THIS JOINT USE AGREEMENT ("Agreement") is approved and entered into
as of this 10`x' day of January, 2019 ("Effective Date"), by and between the WISEBURN
UNIFIED SCHOOL DISTRICT, a California public school district duly organized and
existing under Chapter 1 of Division 3 of Title 2 of the Education Code of the State of
California (the "District") and the CITY OF EL SEGUNDO, a general law city and
municipal corporation ("City"). District and City may be referred to individually as a
"Party" and collectively as"Parties."
RECITALS
WHEREAS, District is the owner of certain real property located at 201 N.
Douglas, El Segundo, CA 90245, commonly known as the Wiseburn High School Home
of the Da Vinci Schools campus, as more particularly described in Exhibit "A," attached
hereto and incorporated herein by this reference (the"Property"); and
WHEREAS, pursuant to that First Amended and Restated Settlement Agreement
between the Parties dated January 19, 2016 ("Settlement Agreement"), the Parties agreed
that the District would construct an Aquatics Center, to be known as the City of El
Segundo-Wiseburn Unified School District Aquatics Center (which may be renamed
upon subsequent mutual written agreement by the District and City pursuant to the
Settlement Agreement) on a portion of the Property, which would be jointly used by the
Parties; and
WIIEREAS, the Settlement Agreement (Section 4.A.) requires City and District
desire to enter into a joint use agreement for the use of the Aquatics Center located on the
Property designated in Exhibit "A" ("Aquatics Center") in accordance with the terms and
conditions of this Agreement; and
WHEREAS, the City Council of the City has authorized execution of a joint use
agreement with EI Segundo Unified School District as allowed by Section 4 of the
Settlement Agreement and such Section 4 also sets forth the. scheduling considerations
that will be applicable to such use during such times that there is a joint use agreement
between the City and EI Segundo Unified School District; and
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Agreement No. 4887C
WHEREAS, the Parties desire by this Agreement to provide for the terms and
conditions for the use of the Aquatics Center.
AGREEMENT
NOW, THEREFORE, the Parties hereto for the consideration hereinafter
expressed, covenant and agree as follows:
Section 1. Kir it of Licei,isem„Alli, ,,,,,,,[,N�,. ,oaf... clLiatics Cent i:. District grants a
non-exclusive license to City to use the Aquatics Center for the purpose of operating and
maintaining the Aquatics Center, pursuant to the terms set forth herein.
Section 2. tM."eli(ff (°ommittoo. A committee ("Aquatics Center
Committee") shall be established by the District and City to implement the terms of this
Agreement. The City and District shall each appoint three (3) members to the Aquatics
Center Committee, for a total of six (6) members. Each Party shall appoint one (1)
member from their respective maintenance departments, one (1) member from their
respective finance departments and one (1) member from their respective parks and
recreation/athletic departments. The Aquatics Center Committee shall meet at least four
(4) times per year, generally prior to the beginning of each sports season, at a date, time,
and location convenient to both Parties. Either Party may request additional meetings,
and/or the Aquatics Center Committee may establish a schedule of more frequent
meetings. The purview of the Aquatics Center Committee shall be to: in accordance with
Section 3 below, schedule the dates and times for the District's and City's use of the
Aquatics Center; discuss exclusive and compatible uses as well as shared use; plan for
any significant construction or maintenance to be performed; discuss, plan and
recommend allocation of funds from the Replacement Reserves (defined below) toward
capital improvements at the Aquatics Center; and discuss any other issues regarding the
shared use of the Aquatics Center. The Aquatics Center Committee shall implement the
terms of the Settlement Agreement, for scheduling purposes as stated in the Recitals.
Aquatics Center Committee meetings shall be agendized open public meetings held in
accordance with the Ralph M. Brown Act. Stakeholders and high-school competitive
teams that either the District or City have agreements with regarding use of the Aquatics
Center, shall be invited to attend and participate in Committee meetings. The Aquatics
Center Committee will establish subcommittees to address specific issues and day-to-day
operations, so that the Aquatics Center Committee may focus on business decisions,
long-term planning and broader issues that relate to the Agreement,
Section 3. scNtetls.p:.N..,019.
(a) Lr,trici Use. The District shall have exclusive use of the Aquatics Center
for purposes related to District activities, including both the large pool and therapy pool
for a maximum of three (3) hours per day Monday through Friday, commencing one
week before the start of the District's commencement of regular school year classes
through the date of cessation of such classes ("District's School Year") Any revenues
Agreement No. 4887C
generated from use of the Aquatics Center during the times allowed for by this Section
3(a), except revenues from food or beverage concessions, shall be remitted to the City to
offset routine maintenance and repair, landscaping and custodial services costs. 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) Exclusive Use Days. Additionally, the District and City shall each have
the right to schedule up to six (6) exclusive non-school days per calendar year, for a total
of twelve (12) days ("Exclusive Use Days"). Exclusive Use Days must be scheduled at
least four (4) months in advance of the scheduled date, to allow for coordination between
the Parties and may only be scheduled after 5pm on Fridays, or on Saturdays or Sundays
from 5am. to lOpm. The Parties and the Aquatics Committee may mutually agree to
allow for scheduling uses with less than four (4) months' notice. District shall remit any
revenue received from third-party users to the City to offset routine maintenance and
repair, landscaping and custodial services costs. For clarification, "revenue received
from third-party users" is defined as fees the District may charge and receive from third
party users and does not include funds the third-party user may receive from participants,
such as from the sale of concessions. During its Exclusive Use Days, District may allow
fundraising events by non-profit District support organizations, such as, but not limited
to, booster clubs, educational foundations, etc., and any revenues from those fundraising
events shall be used for these District support organizations purposes and shall not be
required to be remitted to the City. Exclusive Use Days are defined to include exclusive
use of the Aquatics Center (including both the large pool and the therapy pool), Aquatics
Center Parking Lot, District Gym Restrooms and District Gym Parking Lot, as depicted
in Exhibit"A."
(c) Citv Use. City shall have exclusive use of the Aquatics Center at all times
other than the specific hours scheduled for the District's use pursuant to Section 3(a) and
(b) of this Agreement. Additionally, the District may, but shall not be obligated to, allow
City use of other pool areas in the Aquatics Center during the District's use of the
Aquatics Center pursuant to Section 3(a) of this Agreement provided that proper
safeguards, as determined in the District's sole discretion, are implemented by the City to
separate the public from students, and that, notwithstanding any other provision of this
Agreement, the City provides and pays for the cost of a lifeguard, in addition to the
lifeguard supervising the City's use of other pool areas, to supervise the District's use of
the large pool during such times that the City is using the other pool areas. At all times
during which City has use of the Aquatics Center, City may utilize its park permitting
regulations as set forth in El Segundo Municipal Code ("ESMC") §§ 9-8-1 e/ seq. for
purposes of scheduling events at the Aquatics Center, with the understanding that all
persons residing in the District's boundaries and all employees of the District and
DaVinci Schools are considered City residents for purposes of the Aquatics Center only
and are entitled to use the Aquatics Center on the same terms and conditions as residents
of the City.
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Agreement No. 4887C
O IInmitv ai' 1,1s(�. The Aquatics Center Committee is responsible for
scheduling the dates and times for the District's and City's use of the Aquatics Center.
The Aquatics Center Committee shall work cooperatively with both the District and the
City to establish a schedule that accommodates both Parties' needs to the greatest extent
possible.-In the event that after such efforts the Parties reach an impasse the Parties agree
to a rotating priority. The first time the Parties reach a scheduling impasse, first priority
shall go to the District. The second time the Parties reach a scheduling impasse, first
priority shall go to the City. The rotation shall continue in all alternating pattern for the
Term of the Agreement. The Aquatics Center Committee shall keep track by written
documentation of which Party holds the right to first priority.
Section 4. Term. The term of thi's Agreement shall be for twenty-five (25)
years from the issuance of the Certificate of Occupancy for the Aquatics Center
("Term"). The Parties may mutually agree to extend the Terns for an additional twenty-
five (25) year term ("1st Extension"), and the City shall have the sole right to extend the
Term for a third twenty-five (25) year term ("2"d Extension") The Term, and any
extensions thereto will be referenced to collectively as the Term. City may terminate
upon two (2) years' written notice; however, City must continue to maintain and repair,
as described in Section 5(a) of this Agreement, the competition pool and therapy pool for
a minimum of five (5) years from the issuance of the Certificate of Occupancy for the
Aquatics Center,
Section 5. Conditions to Use
(a) Maintenance„and R, 1 lirm_I stn l rppji s!.....and C leat�-Up 0 ___q, .1atiesCenter.
City shall provide at its own cost the routine maintenance and repair,
landscaping and custodial services for the competition pool, therapy pool
and adjacent areas within the fenced in portion of the AC Property during
the Tenn of the Agreement. Notwithstanding the above, and subject to
subsequent approval by the District Board and the City Council, the City
and District may agree to have the District perform the routine
maintenance and repair, landscaping and custodial services subject to
reimbursement of direct costs by the City. Failure to perform routine
maintenance and repair to ensure adequate upkeep of facilities (e.g. failing
to repair a minor visible leak that results in the need for a new roof) shall
be considered negligence or misuse for purposes of this Agreement.
(b) and C ap►ta,al Ilmp!,o,vernoiits. The Aquatics Center
Committee, or the "Operations Subcommittee” formed in accordance with
Section 2, may recommend which Party performs the major maintenance
and/or capital improvements on an annual basis for budgeting purposes, as
well as a case-by-case or as-needed basis to provide flexibility for
unforeseen circumstances. For purposes of this section, "major
maintenance" includes but is not limited to the major repair or
replacement of plumbing, heating, pumps, filtration, and electrical,
systems and hardscape and pool replacements, which will be funded by
the Replacement Reserves (defined below). All other kinds of
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Agreement No. 4887C
maintenance and repairs shall be considered routine maintenance and
repair and shall be the responsibility of the City, or if mutually agreed, the
District, as noted in Section 5(a) above.
(c) )„ „t?.;lllaulrlili .:. Each Party shall be responsible for and shall pay for any
major maintenance of any character whatsoever which is occasioned or are
made necessary by reason of the negligence or misuse of the Property or
Aquatics Center by said Party.
(e) I lazz rdotru� faJrttari°als. Under no circumstances during the term of this
Agreement shall City use or cause to be used in the Aquatics Center any hazardous or
toxic substances or materials, and under no circumstance during the term of this
Agreement shall any Party store or dispose of any such substances or materials in the
Aquatics Center. Notwithstanding the foregoing, either Party may use, at its own risk, in
compliance with any applicable laws and District policies, any ordinary and customary
materials reasonably required to be used in the normal course of use for pool facilities.
(f) Non-Inter)erence with ),\c11vities. This Agreement shall not grant either
Party, its employees, contractors, volunteers or invitees the right to interfere with any
activities of the other Party, except to the extent necessary to conduct activities
contemplated by Section 5 of this Agreement_
(g) ..a. t1.Iuw�;�of..�''..M�l��d�:�.�:°.t'�� .. +"011011te IS 1111d Invitees. Each Party shall insure
that all employees, contractors, volunteers, invitees, and all others in attendance have
background and medical clearance as required by law, as applicable, and will adhere to
proper standards of public conduct and comply with all applicable policies. There is to
be no consumption or possession of alcohol or other controlled substances, smoking,
gambling, quarreling, fighting, use of profane language, or indecent exposure on or near
the Property, including the Aquatics Center.
(h) Insurance.
(i) Llluulphc I.,ur.ulailM aild.I'u.�,1 cu.gW,..�w>apwbi.g9pe. Both Parties agree
to maintain in full force and effect throughout the duration of the Agreement a suitable
policy or policies of public liability and property damage insurance, insuring against all
bodily injury, property damage, personal injury, and other loss or liability caused by or
connected with their use of the Aquatics Center under this Agreement. Such insurance
shall be in amounts not less than $5,000,000 per occurrence; $10,000,000 for general
aggregate and $1,000,000 for property damage.
(ii) AUtomoblle Lid-bihi y,. Each Party also agrees to maintain
in full force and effect with regard to any owned vehicles which the respective Party
brings onto the Property, including the Aquatics Center, a suitable policy or policies of
automobile liability insurance with a combined single limit of $5,000,000 per accident
throughout the duration of the Agreement.
(iii) Wa11l«r:.,. t°��u���n�tu� utn�Muu. Each Party shall also maintain, in
full force and effect throughout the term of this Agreement, Workers' Compensation
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Agreement No. 4887C
insurance in accordance with the laws of California, and employers' liability insurance
with a limit of not less than $1,000,000 per employee and $1,000,000 per occurrence.
(iv) lQ�ice ._ a�dWida,o,mil Named Insured . All insurance required
under this Agreement shall be issued as a primary policy and contain an endorsement
requiring thirty (30) days written notice from the insurance company to both Parties
hereto before cancellation or change in coverage, scope or amount of any policy. Each
Party, its directors, officers, agents, employees and volunteers, shall be designated as
additional named insureds on the other Party's policies.
(v) Insurance Endorsernents. Concurrent with the execution of
the Agreement, each Party will provide the other Party with an endorsement(s) verifying
such insurance and the terms described herein.
(vi) �Iotni I°'ower:s Aulharorily. These insurance requirements may
be satisfied through a joint powers agency, or similar entity, formed for the purpose of
providing self-insurance to public entities.
(i) I11derni7i 111crati011.
With the exception of any liability, claims, or damages caused by the negligence
or willful misconduct of the District, its board members, officers, agents, employees,
volunteers, students and invitees ("District Parties"), the City shall indemnify, hold
harmless, and defend the District Parties against and from any and all claims, demands,
actions, causes of action, suits, losses, liability, expenses, penalties, obligations, errors,
omissions and costs, including legal costs, attorney's fees and expert witness fees,
whether or not suit is actually filed, and/or any judgment rendered against the District
Parties, that may be asserted or claimed by any person, firm or entity for any injury, death
or damage to any person or property occurring in, on or about the Property, including the
Aquatics Center, after the Effective Date, arising from, or in connection with, the City's,
its agents, officers, employees, contractors, volunteers, guests or invitees ("City Parties")
use of the Aquatics Center, or from the conduct of its business or from any activity, work,
or other things done, permitted or suffered by the City Parties in or about the Property,
including the Aquatics Center. The City's obligation to defend the District Parties is not
contingent upon there being an acknowledgement or determination of the merit of any
claims, demands, actions, causes of action, suits, losses, liability, expenses, penalties,
obligations, errors, omissions and/or costs.
With exception of any liability, claims or damages caused by the negligence or
willful misconduct of the City Parties, the District shall indemnify, hold harmless, and
defend the City Parties against and from any and all claims, demands, actions, causes of
action, suits, losses, liability, expenses, penalties, obligations, errors, omissions, and
costs, including legal costs, attorney's fees and expert witness fees, whether or not suit is
actually filed, and/or any judgment rendered against the City Parties, that may be asserted
or claimed by any person, firm or entity for any injury, death or damage to any person or
property occurring in, on or about the Property, including the Aquatics Center, after the
Effective Date, arising from, or in connection with, the District Parties' use of the
Property, including the Aquatics Center, or from the conduct of its business, or frown any
Agreement No. 4887C
activity, work, or other things done, permitted or suffered by the District Parties in or
about the Property, including the Aquatics Center. The District's obligation to defend the
City Parties is not contingent upon there being an acknowledgement or determination of
the merit of any claims, demands, actions, causes of action, suits, losses, liability,
expenses, penalties, obligations, errors, omissions and/or costs.
Tile provisions of this Section shall survive the termination or expiration of this
Agreement.
�) Sl iR„c°jicsls. Furnishills's..and d 1,qc�r��^din. Each Party, at its own cost, shall
provide all materials, furnishings and equipment to be used for its respective uses.
(j) SupcnvI,,I0n and `ec°uri'1 . Each Party shall provide all necessary
supervision of its employees, students, contractors, volunteers and invitees while using
the Property, including the Aquatics Center. Each Party is solely responsible for the
safety and security of its employees, students, contractors, volunteers and invitees at all
times.
(k) 1,ocks - K-e ,iris „a;gi A..,:Ac;cessAlwtho riza.ntion. The lock style, types of gates,
and key/code authorization to be utilized at the Aquatics Center will be coordinated in
such a manner as to allow access to necessary City and District personnel while
maintaining the safety and security of people and property.
(1) :
Agreement No. 4887C
and capital improvements. City is not entitled to reimbursement of any Replacement
Reserves if it terminates the Agreement, or the Agreement expires, before the
expenditure of such funds. For the initial Tenn of the Agreement, District must
contribute the sum of Forty Thousand Dollars ($40,000) annually to the Replacement
Reserves. If the I" Extension of the Agreement is exercised, District will annually
contribute Forty Thousand Dollars ($40,000) to the Replacement Reserves. If the 2"d
Extension of the Agreement is exercised, and in any subsequent terns of the Agreement,
District and City must each annually contribute Twenty Thousand Dollars ($20,000) to
the Replacement Reserves. Such contributions are due on or before the anniversary of
the Effective Date each year.
(0) VV,1110111S.
(i) No person, including a lifeguard, may enter the pool
without another person present.
(ii) Whenever the pool is in use, the Party using the Pool is
responsible for ensuring that a minimum of one (1) appropriate individual who possess,
as minimum qualifications, current certificates from an American Red Cross or YMCA
of the U.S.A. lifeguard training program and who are trained to administer first aid,
including, but not limited to, cardiopulmonary resuscitation, must be on duty, present in
the pool area and solely serving as a lifeguard, during that period, rather than involved in
instruction and/or maintenance. City and District may agree to have City personnel
perform lifeguard duties during District use, subject to reimbursement of direct costs by
the District.
(iii) Each Parry is responsible for compliance with all codes and
regulations governing use of public swimming pools during their respective hours of use.
(iv) Each Party is responsible for providing or confirming the
presence of a cardiopulmonary resuscitation sign, emergency phone numbers and any
other signage required to be posted in the vicinity of a pool, as well as a phone, life hook,
life ring and first aid kit in a readily accessible location during their respective hours of
use.
(v) Each Party must completely remove the entire pool cover,
regardless of whether the Party only uses a portion of the pool during their respective
hours of use.
(vi) At the conclusion of each period of use, each Party is
responsible for properly securing the pool covers of each pool used.
(p) I l'so p'a°mw!,1. The District and City may require third party users to submit
use permits established by the respective Party. Use Permits must conform to the terms
and conditions of this Agreement and must include language that requires the third-party
user to indemnify both the District and City from claims resulting from the third parties'
use of the Aquatic Center.
Agreement No. 4887C
Section 6. Q:"c. ll�l;..�mx,mkaa�w With 1,4.b„��. Both Parties shall comply with all laws,
ordinances, zoning, rules, and regulations applicable to the Property, including the
Aquatics Center, enacted or promulgated by any public or governmental authority or
agency having jurisdiction over the Property, including the Aquatics Center. Both Parties
shall be responsible for obtaining and maintaining throughout the Term of the Agreement
all permits, licenses and approvals, from any local, state or federal agency necessary for
the use of the Property, including the Aquatics Center. Both Parties shall comply with
requirements of state law regarding fingerprinting, background checks, and health
screening, as applicable.
Section 7 Leeal Intelvretaj,,! rn of Instrument. The Parties expressly
understand and agree that this Agreement constitutes a non-exclusive license for use of
the Property, including the Aquatics Center. This Agreement is not intended by the
Parties, nor shall it be legally construed, to convey a leasehold, easement, or other interest
in real property. Both Parties acknowledge that a license is a valid form of agreement
and shall not contest the validity of the form of this Agreement in any action or
proceeding brought by City against the District, or by the District against City. Should
either Party be compelled to institute arbitration, legal, or other proceedings against the
other for or on account of the other Party's failure or refusal to perform or fulfill any of
the covenants or conditions of this Agreement on its part to be performed or fulfilled, the
Parties agree that the rules and principles applicable to licenses shall govern such actions
or proceedings. This Agreement shall be governed by the laws of the State of California
with venue in Los Angeles County, California.
Section 8. Q 1 R osoIoIioI). The Parties agree to submit any dispute
involving the Agreement to arbitration before any Party can file a petition with the Los
Angeles Superior Court. Any dispute must be resolved by arbitration before a retired
judge of the Superior Court of the State of California (the "Arbitrator") under the
auspices of Judicial Arbitration & Mediation Services, Inc. ("JAMS"). The arbitration
must be conducted in Los Angeles County, California. Any Party may be represented by
counsel or other authorized representative. The decision rendered by the arbitrator will
become binding upon the Parties unless appealed to the Los Angeles County Superior
Court within thirty (30) days of the decision. If subsequent litigation results in an award
to the Party appealing the arbitration that is less than or equal to that of the arbitration
decision, or if the litigation results in a decision in favor of the nonappealing Party, then
the Party appealing the arbitration will pay the nonappealing Party's attorney's fees and
court costs. Should a Party timely object to the arbitration decision, it may file a petition
with the Los Angeles County Superior Court in accordance with California Code of Civil
Procedure ("CCP") §§ 1285 et seq. Notwithstanding the limitations set forth in CCP §
1286.2, the court may vacate, correct, or adjust an arbitration award, and enter judgment
in accordance with CCP § 1287.4, for any legal or equitable basis ]Including, without
limitation, error of law. The court will apply the substantial evidence standard of review
when considering the appeal of an objecting Party.
Section 9 I_°'o . If any legal action is necessary to enforce any of
the terms or conditions of this Agreement, each Party shall bear their own attorneys' fees,
except as set forth above
Agreement No. 4887C
Section 10. ["nura This Agreement and the
Settlement Agreement constitutes the entire understanding between the Parties with
respect to the subject matter hereof, and supersede all negotiations, prior discussions and
preliminary agreements made prior to the dates thereof. This Agreement may not be
changed except in writing executed by both Parties.
Section 11. Noliwc s. 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 CITY: City of El Segundo
Attn: City Clerk
350 Main St.
El Segundo, CA 90245
If to DISTRICT: Wisebum Unified School District
Attn: Superintendent
201 N. Douglas St.
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.
Section 12. t)l`llclzd ]Zell ra;sentaliveli.. The official representative for District
shall be Superintendent, or his designee. The official representative for City shall be City
Manager or his/her designee. The Parties will provide each other after-hours emergency
contact phone numbers of appropriate supervisory staff which shall be periodically
updated.
Section 13 ',r°Ind,l�1 !..ILIr int Contractors.
(a) For purposes of this Agreement, all persons employed by City in the
performance of services and functions with respect to this Agreement shall be deemed
employees of City and no City employee shall be considered as an employee of the
District under the jurisdiction of District, nor shall such City employees have any District
pension, civil service, or other status while an employee of the City.
(b) City shall have no authority to contract on behalf of District It is
expressly understood and agreed by both Parties hereto that City, while engaged in
carrying out and complying with any terms of this Agreement, is not acting as an agent,
officer, or employee of District.
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Agreement No. 4887C
(c) For purposes of this Agreement, all persons employed by District in the
performance of services and functions with respect to this Agreement shall be deemed
employees of District and no District employee shall be considered as an employee of the
City under the jurisdiction of District, nor shall such District employees have any City
pension, civil service, or other status while an employee of the City.
(d) District shall have no authority to contract on behalf of City. It is
expressly understood and agreed by both Parties hereto that District, while engaged in
carrying out and complying with any terms of this Agreement, is not acting as an agent,
officer, or employee of City.
Section 14, As, a L,i ini_gw. Neither Party shall assign this Agreement.
Section 15. Nondiscrimj!itttio'n'. In utilizing the Agreement, the Parties shall
comply with all applicable non-discrimination laws and shall not discriminate against any
person on account of race, color, religion, age, sex, marital status, mental or physical
disability, gender, gender identity, gender expression, sexual orientation, genetic
information, ethnicity, ethnic group identification, national origin or nationality, ancestry,
or a perception that a person has any of these characteristics or that the person is
associated with a person who has, or is perceived to have, any of these characteristics.
Section 16. As-Is Condition. The Aquatics Center is licensed in as-is
condition and District makes no representation or warranty of any kind regarding the
character of the Aquatics Center. Notwithstanding the above, to the extent any portion of
the Aquatics Center is under warranty from the contractor(s), District will coordinate
with City to utilize any such warranty, as applicable.
Section 17. Exhibits_ The following appendix which is attached hereto is
incorporated herein and made a pail of this Agreement:
Exhibit A: Location and Description of Property and Aquatics
Center
Section 18. Recitals. The Recitals are incorporated into this Agreement as
though fully set forth herein.
Section 19. jlt�ri119y""w°enture. It is not intended by this Agreement to, and nothing
contained in this Agreement shall, create any partnership, joint venture or other
agreement between the District and City. No term or provision of this Agreement is
intended to be, or shall be, for the benefit of any person, firm, organization or corporation
not a party hereto, and no such other person, firm, organization or corporation shall have
any right or cause of action hereunder.
..ra1 �zW�a�ties 110( to be Conso'.u�:. .......M.p�,twAr ,'� 1'tu°;al'°��a:d "The
Section 20 1........:....... ......L.:'.1.91:,ly:..
doctrine that any ambiguity contained in a contract shall be construed against the party
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Agreement No. 4887C
whose counsel has drafted the contract is expressly waived by each of the Parties hereto
with respect to this Agreement.
Section 21. �..�;tgw.s/II loo-(I;,iN' All references to days herein shall refer to
calendar days unless otherwise noted. When performance of an obligation or satisfaction
of a condition set forth in this Agreement is required on or by a date that is a Saturday,
Sunday, or legal holiday, such performance or satisfaction shall instead be required on or
by the next business day following that Saturday, Sunday, or holiday, notwithstanding
any other provisions of this Agreement.
Section 22. Non iabihiy of 01'fidcials. Except as otherwise explicitly provided
by law, 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
Section 23. Third I'amrty Nothing in this Agreement shall be
construed to confer any rights upon any party not signatory to this Agreement
Section 24. Time of the Essence. Time is of the essence with respect to each
of the terms, covenants, and conditions of this Agreement.
Section 25. Severabilitv. If any provision in this Agreement is held by a court
of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions
']1 nevertheless continue in full force without being impaired or invalidated in any way.
Section 26. No Affiliation/Endorsement. Neither Party shall imply, indicate or
otherwise suggest that the other Party's use and/or any related activities are connected or
affiliated with, or are endorsed, favored or supported by, or are opposed by the other
Party.
Section 27, I <m1ell0Aemmmeil Aroyal. This Agreement is not valid or an
enforceable obligation against the District until approved or ratified by motion of the
District's Board of Education duly passed and adopted. This Agreement is not valid or
an enforceable obligation against the City until approved or ratified by motion of the City
Council duly passed and adopted.
Section 28. Scanned
. / Id,t.,dronic ma�mm�mtmmmes. This Agreement may be executed
„m mm
and transmitted to any other Party by PDF, which PDF shall be deemed to be, and
utilized in all respects as, an original, wet-inked document.
IN WITNESS WHEREOF, the; I3arties have entered into this Agreement as of the
Effective Date.
12
Agreement No. 4887C
WISEBURN UNIFIED SCHOOL DISTRICT
AaAnnc Kaneda,
�Iloard President
ATTESTV,
Blake Sil^
Superintendent of Schools
CITY� '11,8VIG11 X)
Drew Boyles,
Mayor i
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A111IR(WED AS TO FORM:
City Attorney
13
Agreement No. 4887C
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