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CONTRACT 5760 OtherAgreement No. 5760 AGREEMENT BETWEEN EL SEGUNDO UNIFIED SCHOOL DISTRICT AND CITY OF EL SEGUNDO FOR THE USE OF PARKING LOT PROPERTY GREEMENT ("Agreement") is approved and entered into as of this��day of (°`Bffective Date"), by and between the EL SEGUNDO UNIFIED SCHOOL Dl fRI(.T (the "District") and the City of El Segundo ("City") (collectively, District and City are referred to as the "Parties"). RECITALS WHEREAS, District is the owner of certain real property, consisting of approximately 15,356 square feet of land located near Richmond Street Elementary School, 615 Richmond Street, El Segundo, Ca 90245 (the "Land"); WHEREAS, District plans to construct a parking lot on the Land as more particularly identified and described in Exhibit "A", attached hereto and incorporated herein by this reference (the "Property"); WHEREAS, District is willing to grant to City a license for the non-exclusive use of that portion of the Property as designated in Exhibit "A" ("Licensed Area") in accordance with the terms and conditions of this Agreement; and WHEREAS, City desires to use the Licensed Area for the purpose set forth herein. AGREEMENT NOW, THEREFORE, the parties hereto for the consideration hereinafter expressed, covenant and agree as follows: Section 1. Grant of License and Use of Licensed Area. In consideration of the Use Fee, as defined below, District grants a non-exclusive license to City to use the Licensed Area for public Parking Use, as defined in subsection (a) below, upon completion of the Parking Lot Project, as set forth below. (a) Parkins Use. The License Area consists of the Parking Lot spaces that are not marked as reserved for District use, as shown in Exhibit A. The City may use the Licensed Area at the dates and times set forth herein for public parking, which consists solely of allowing the general public to temporarily park regular sized vehicles in the parking stalls designated in the Licensed Area (the "Parking Use"). The District, at its sole discretion, may reserve the Licensed Area and the entire Property for District events throughout the Term upon providing written notice to the City which shall identify the date and time of the event which may include, but are not limited to, District -sponsored events such as Back to School Night, Family Nights, Book Fairs, or Open House (collectively "District Events"). After notice to the City, the District may take all actions necessary to reserve the License Area and the entire Property for District use and prevent public use during the District Events. The Parking Use shall be subject to any and all rules adopted by the District relating to parking, including, but not limited to, prohibiting overnight parking, loitering, or vehicles that exceed a specified size or weight requirements. The District, at its sole discretion, may enforce its Parking Use rules through towing or ticketing violating vehicles. The District and the City shall Agreement No. 5760 work together to establish and install signs and other postings necessary to inform the public about the Parking Use including the specific spaces available for Parking Use, the times during which the public can use the Licensed Area for Parking Use, and any rules that apply to the Parking Use. The City may not conduct any activity that changes, alters, or otherwise disturbs the Licensed Area and many not use the Licensed Area for any other purpose except the Parking Use set forth herein unless the District provides prior written approval. If the District believes any specific action or activity conducted on the Licensed Area does not relate to the Parking Use, the District will issue a written notice to City requiring such action or activity to cease immediately and City will take any action necessary to address the District's stated concern. (b) Common Areas. During the Parking Use, the Parties recognize that the District may be using other portions of the Property for District -related parking. Thus, the Parties shall work together collectively to ensure full and complete access to the Property is granted throughout the Term of this Agreement including, but not limited to, ensuring all entrances and exits to the Property remain open and unobstructed and no use of the Property blocks or otherwise impedes access and use of the Property by the public or the District. The District, at its sole discretion, may take any action necessary to address or remove any impediment to access or use of the Property, including towing or otherwise removing or ending any specific use of the Licensed Area. In no event shall the public or the City be allowed to access or use the portion of the Property that is not included in the Licensed Area and therefore, reserved solely for District use. Nothing in this Agreement shall be construed as limiting the District's right to use the area of the Property that is not part of the Licensed Area which the District may reserve for parking by District staff, students, and/or guests or any other use authorized by applicable law. Section 2. Use Fee. In consideration for the Parking Use, City shall pay the District a total fee of City Three Hundred Seven Thousand Two Hundred Six Dollars ($307,206) ("Use Fee") which shall be paid to the District in total within thirty (30) days of the Effective Date of this Agreement. The Parties acknowledge and agree that the Use Fee is not a rental or lease payment for the Licensed Area but instead constitutes a fee solely for the right to use the Property for the Parking Use as set forth herein. The Use Fee shall be received by the District at the address provided below. Section 3. Term. The District plans to construct a fully -functional parking lot on the Property, which shall include specified parking lot spaces in the Licensed Area (the "Parking Lot Project"). The Parking Lot shall include at least 30 parking spaces which shall be 8.5' deep by 18' wide except handicap spaces which shall be of dimensions as required by law. other necessary utilities, signs, and markings, including spaces designed for loading zones. The District anticipates completing the Parking Lot Project on or before January 31, 2020. However, the District provides no guarantee regarding the completion of the Parking Lot Project or the specific date by which the Licensed Area will be available for public parking. The District shall provide written notice to the City when the Licensed Area is finished and available for the public Parking Use as set forth herein (the "District Notice"). The City's use of the Licensed Area for the Parking Use shall commence upon the date specified in the District Notice and continue for a period of ten (10) years. (a) Schedule of Use. Throughout the Term, the Licensed Area shall be available for public parking Monday through Friday, 5:00 am through 9:00 pm and Saturday and Sunday, 5:00 am through 9:00 pm. The District, at its sole discretion, may limit public use for, or access to, the Licensed Area for specific days and/or times as necessary to conduct repairs, cleaning or other activities to maintain the Property or if the Licensed Area is needed for an event or other use of the District (the "Restricted Access Periods"). The District shall provide written notice to the City as soon as possible establishing Restricted Access Periods and the District, at its sole discretion, may 2. Agreement No. 5760 take any action necessary to enforce the Restricted Access Periods including, but not limited to, blocking access to the Licensed Area or Property, installing signs limiting access, and removing any unauthorized vehicle or property on the Licensed Area. (b) Termination. In the event the District either (i) decides, at its sole discretion, that it cannot or will not complete the Parking Lot Project, or (ii) the Parking Lot Project is not complete by March 31, 2020, the District will return the Use Fee to the City and this Agreement shall automatically terminate, with no additional cost or penalty incurred by either Party. Further, in the event the District decides to discontinue use of the Property for parking lot purposes during any time during the Term, the District shall return a prorated share of the Use Fee to the City based on the number of months the Licensed Area was made available for public use. Thus, nothing in this Agreement shall be construed as requiring or obligating the District to complete the Parking Lot Project or reserve the Licensed Area for public parking use except as otherwise stated herein. Section 4. Conditions to Use. (a) Repair of Licensed Area. The District shall provide routine maintenance and cleaning for the Licensed Area during the Term. However, City shall be responsible for and shall pay for any and all extraordinary damage, cleaning, or repairs which are occasioned or are made necessary by use of the Licensed Area or the Common Area by City or the public, excluding only those caused by the sole active negligence or willful misconduct of the District. District shall notify City immediately of any extraordinary maintenance or cleaning required to be addressed by the City pursuant to this Section. In the event that City fails to make repairs or replacement to the Licensed Area due to any such damage, District may, at District's sole discretion, undertake such repair or replacement of the Licensed Area and City shall reimburse District for the costs of such repairs or maintenance within thirty (30) days of invoice by District. (b) public Relations. The City and the District shall work together to inform the public of the terms and conditions of the public use of the Licensed Area including, but not limited to, providing adequate signage identifying the Licensed Area and the specific spaces available for public use, ensuring all City rules and regulations applicable to the Licensed Area and the Parking Use are established and complied with, and providing City services to the Licensed Area, such as security monitoring, emergency service access, and towing services, as applicable. (c) Hazardous Materials. The District and the City shall take all action necessary to ensure the Licensed Area is kept free and clear of any and all hazardous or toxic substances or materials ("Toxic Substances"). The City shall take no action to bring or allow the use of Toxic Substances on the Licensed Area. (d) Non-Intcrfercnce with District Activities. This Agreement shall not grant City or the public the right to interfere with any activities of District on the Property, as determined by the District at its sole discretion. The District, at its sole discretion, may take any action necessary to prevent or eliminate any activity that threatens to interfere with District's activities including, but not limited to, removing public vehicles or individuals from the Licensed Area, temporarily blocking access to the Property, or calling law enforcement to take action with respect to any interference. The District may also take any action necessary to eliminate improper activities on the Licensed Area, including the consumption of intoxicating liquors or other controlled substances, smoking, gambling, quarreling, fighting, use of profane language, or indecent exposure. In the event the District determines, in its sole and absolute discretion, that any person is failing to adhere to proper 3 Agreement No. 5760 standards of public conduct, the District reserves the right to remove said individual, and/or require City to remove said individual from the District's Property and prohibit future access to the Property. Section 5. Indemnification. (a) Citv's Indemnification !f bli at�n. The District is providing the City access to the Licensed Area for public parking purposes and in no event is accepting responsibility for the public's use of the Licensed Area. City shall be responsible for, and District, its board members, officers, agents, employees, and students ("District Parties") shall not be answerable or accountable in any manner for any loss or expense by reason of any damage or injury to person or property, or both, arising out of the acts, omissions, and/or negligence of City or the public, who are not using the Parking Lot or Common Area for District purposes, arising out of or in connection with this Agreement or any other use of the Licensed Area, except to the extent such claims arise out of the sole active negligence or willful misconduct of District Parties. City shall indemnify and defend District Parties against and will hold and save them and each of them harmless from any and all actions, claims, liens, damages to persons or property, penalties, obligations or liabilities, including attorneys' fees, arising out of or in connection with City's or public's activities on the Licensed Area, this Agreement, and any other use of and operations at the Licensed Area by the City or the public pursuant to this Agreement, excluding such actions, claims, damages to persons or property, penalties, obligations or liabilities arising from the sole active negligence or willful misconduct of District Parties. (b) District's Indemnification Dbliation. District shall be responsible for, and City, its board members, officers, agents, and employees ("City Parties") shall not be answerable or accountable in any manner for any loss or expense by reason of any damage or injury to person or property, or both, arising out of the acts, omissions, and/or negligence of District arising out of or in connection with this Agreement or any other use of the Property and the Licensed Area by the District, except to the extent such claims arise out of the sole active negligence or willful misconduct of City Parties. District shall indemnify and defend City Parties against and will hold and save them and each of them harmless from any and all actions, claims, liens, damages to persons or property, penalties, obligations or liabilities, including attorneys' fees, arising out of or in connection with District's activities at the Property including the Licensed Area, this Agreement, and any other use of and operations of the District at the Property including the Licensed Area, pursuant to this Agreement, excluding such actions, claims, damages to persons or property, penalties, obligations or liabilities arising from the sole active negligence or willful misconduct of City Parties. Section 6. lmmovements. (a) City shall have no right to make any additional changes, alterations or improvements to the Property or Licensed Area, unless District provides written permission to make such changes, alterations or improvements, which permission may be granted and conditioned in the sole discretion of the District ("Improvements"). City shall provide written notice to the District of any Improvements made necessary by any City code, ordinance or regulation applicable to the Licensed Area throughout the Term of the Agreement and will work with the District to implement any Improvement needed to ensure the Licensed Area complies with all applicable requirements. (b) Notwithstanding anything to the contrary stated or implied herein, City shall not take any action or give any approval that will result in a change in the zoning of the Property that will be binding on the Property or impact or affect District's use of the Property as a parking lot or alter, eliminate or in any way modify any of the entitlements for the Property in any manner that will 4 Agreement No. 5760 be binding on the Property or District after the expiration or earlier termination of this Agreement, in each case without prior written consent of the District. Section 7. Comnliance With Law. (a) City shall ensure the public use of the Licensed Area complies with all laws, ordinances, zoning, rules, and regulations applicable to the Licensed Area, enacted or promulgated by any public or governmental authority or agency, including without limitation the City, having jurisdiction over the Licensed Area. City shall be responsible for obtaining and maintaining throughout the Term of the Agreement all permits, licenses, and approvals, if necessary, from any local, state or federal agency necessary for the Parking Use and/or use of the Licensed Area. (b) Escept as to construction warranties through the contractor for the Parking Lot Project, District makes no representation or warranty as to the suitability of the Property and/or the Licensed Area for City's Parking Use, and City waives any implied warranty that the Property and/or the Licensed Area are suitable for City's intended purposes. Prior to the commencement date of the Agreement, City shall have taken the appropriate steps and made the appropriate inquiries to confirm that City is or will be as of the commencement date of the Agreement in compliance with all laws, ordinances, zoning, rules, and regulations applicable to the Parking Use and City's operation of the Parking Use, enacted or promulgated by any public or governmental authority or agency and will maintain compliance throughout the duration of the Term. Section 8. Legal InterDretation of Instrument. The parties expressly understand and agree that this Agreement constitutes a non-exclusive license for use of the Licensed Area. 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. City acknowledges 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. Section 9. Attornevs' Fees. 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. Section 10. Entire Agreement; Amendment. This Agreement constitutes the entire understanding between the parties with respect to the subject matter hereof, superseding all negotiations, prior discussions and preliminary agreements made prior to the date hereof. This Agreement may not be changed unless in writing executed by both parties. Section 11. Notices. 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: 5 Agreement No. 5760 If to City: CITY OF EL SEGUNDO City Clerk 350 Main Street El Segundo, CA 90245 If to District: EL SEGUNDO UNIFIED SCHOOL DISTRICT Attn: Melissa Moore, EdD Superintendent 641 Sheldon Street El segundo, CA 90245 Telephone (310) 615-2650 extn. 1405 Email: mmoore@esusd.net 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. Official Reoresentatives. The official representative for District shall be the Superintendent. The official representative for City shall be the City Clerk. Section 13. Ea�vees/IndWendent 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. Section 14. No Transfer or Assi rn!j e� . City, as City, acknowledges that the rights conferred herein are personal to City and do not operate to confer on or vest in City any title, interest, or estate in the Licensed Area or any part thereof, and therefore, City shall not assign hypothecate or mortgage the Licensed Area or any portion thereof, by, though or pursuant to this Agreement. Section 15. Nondiscrimination. In utilizing the Agreement, City 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 Licensed Area are licensed in as -is condition and District makes no representation or warranty, except construction warranties by the contractor of the Parking Lot Project, of any kind regarding the character of the Licensed Area. 6 Agreement No. 5760 Section 17. Exhibits. The following appendix which is attached hereto is incorporated herein and made a part of this Agreement: Exhibit A: Location and Description of Property and Licensed Area Section 18. Recitals. The Recitals are incorporated into this Agreement as though fully set forth herein. Section 19. Joint Venture. 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 parry hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder. Section 20. Ambiguities not to be Construed against Drafting art , 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. Section 21. Days/Holidays. 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. 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. Section 23. Third Partv Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not signatory to this Agreement. Section 24. Signs. City shall not have the right to place, construct or maintain any sign, advertisement, awning, banner, or other external decorations on the improvements that are a part of the Licensed Area without District's prior written consent, which consent is at the District's sole discretion. Section 25. Time of the Essence. Time is of the essence with respect to each of the terms, covenants, and conditions of this Agreement. Section 26. 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. Section 27. No District Affiliation/Endorsenient. City shall not imply, indicate or otherwise suggest that City's use and/or any related activities are connected or affiliated with, or are endorsed, favored or supported by, or are opposed by the District. No signage, flyers or other material may reference the District, any school name, logo or mascot without the District's prior written consent. 7 Agreement No. 5760 Section 28. Board Approval. 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. Date. IN WITNESS WHEREOF, the parties have entered into this Agreement as of the Effective District: EL SEGUNDO UNIFIED SCHOOL DISTRICT y. .. Name: Melissa Moore, EdD. Title: Su tend Date: City: CITY OF EL SEGUNDO By: �.. Name: Drew 40 es Title: Mayor Date: /0-1 -1 9 Attest: By: Name: Tracy Weaver Title: City Clerk Approved as to form: By: �P nD(Z, Name: Mark D. Hensley Title: City Attorney H.' Agreement No. 5760 Exhibit "A" Description of Propertv and Licensed Area Agreement No. 5760 00: PtL IXaaw% I II I i'. ,, , hC �,.ro�� ST