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HomeMy WebLinkAbout25R - LEASE TENNIS COURT SAUSDREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: NOVEI~IDER 17 , 2 0 0 8 TITLE: ~~ Education 18r CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 151 Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For_ AGREEMENT FOR LEASE OF TENNIS COURT FACILITIES AT FIRST AND FLOWER STREETS WITH SANTA ANA UNIFIED SCHOOL DISTRICT /". CI MANAGER RECOMMENDED ACTION Authorize the City Manager attached agreement with the lease of the tennis court Streets for a 10-year term, subject to non-substantive City Attorney. CONTINUED TO FILE NUMBER and Clerk of the Council to execute the Santa Ana Unified School District for the facilities located at First and Flower with the option for two, 10-year renewals, changes approved by the City Manager and SANTA ANA UNIFIED SCHOOL DISTRICT BOARD OF EDUCATION RECOL~IlI~NDATION On October 14, 2008 the Board unanimously approved the lease agreement by a vote of 5:0. DISCUSSION In 1971, the Parks, Recreation and Community Services Agency and the Santa Ana Unified School District entered into a 25-year lease agreement for the site located at First and Flower Streets, known as the Neal Machander Tennis Center. The property, which abuts Santa Ana High School, sits on top of the Walnut Street Reservoir that is owned and operated by the City of Santa Ana. The original agreement granted the School District authority to construct 11 tennis courts at the site, free of charge, for the recreational use and enjoyment of the high school. In exchange for the City paying the cost to install lighting at the facility, the School District granted the City free use of the tennis court facilities for its after-school recreational programs. As a continuation of the existing lease agreement, the City and the School District are proposing an additional 10-year term with two 10- year options for renewal. No money exchange is required as the consideration provided is the enjoyment and usage of the property for Santa Ana residents. In addition, the School District will hold the City harmless from all liability or claims that may arise at the property during the term of the~a~~=~nt . Agreement for Lease of First and Flower Street Tennis Courts November 17, 2008 Page 2 FISCAL IMPACT There is no fiscal impact associated with the proposed action. ~~~~ ~~ Gerardo Mouet Executive Dire for Parks, Recreation and Community Services Agency 25R-2 DRAFT: FOR DISCUSSION PURPOSES DO NOT RECORD LEASE AND JOINT USE AGREEMENT ["Neal Machander Tennis Center"] BETWEEN THE CITY OF SANTA ANA AND THE SANTA ANA UNIFIED SCHOOL DISTRICT This Lease and Joint Use Agreement ("Agreement") is made and entered into this _ day of 2008, by and between the City of .Santa Ana, a charter city and municipal corporation, duly organized and existing under the constitution and laws of the State of California, herein referred to as "Landlord" or "City" and the Santa Ana Unified School District herein referred to as "Tenant" or "District." RECITALS A. On October 4, 1971, the City and District entered into long term lease agreement for the use of the property formerly known as the "Waterworks Park Site," and now commonly known as the "Neal Machander Tennis Center," for use as a Tennis Court facility. A graphical description of said property is attached hereto as Exhibit 1. B. On the same date, October 4, 1971, the City and District entered into long term lease agreement for the use of the property formerly known as "McKinley Elementary School" and now commonly known as "Angel Park." C. Both the Angel Park and Neal Machander Tennis Center leases were drafted and intended to be mutually dependent on each other. D. Prior to this Agreement, the City and District cooperated in the construction, maintenance, operation and use of the Tennis Court facility at the Neal Machander Tennis Center. E. Education Code §§ 10900, et seq. and Education Code §10905, specifically, authorizes the District to cooperate with the City to carry out its purposes in promoting and preserving the health and general welfare of the people of the state and to cultivate the development of good citizenship by providing for adequate programs of community recreation for children and adults. These Education Code sections authorize the District to enter into agreements and to do any and all things necessary or convenient to aid and cooperate in carrying out that purpose. F. Pursuant to its Charter, the City is authorized to convey and lease real property and to enter into cooperative agreements that further the interests of the City. G. This Agreement is intended to continue the lease in place between the City and District in order for the District to be able to maintain the use of the Neal Machander Tennis Center as a Tennis Facility for use by Students and the public. Page 1 of 7 11 /4/2008 25R-3 DRAFT: FOR DISCUSSION PURPOSES DO NOT RECORD H. The City and District desire hereby to delineate their respective rights and duties regarding use, maintenance, and operation of the Neal Machander Tennis Center. NOW, THEREFORE, the City and the District hereby agree as follows: AGREEMENT 1. Premises and Use. Landlord owns the real property located at the corner of First Street and Flower, Santa Ana, California and commonly known as Neal Machander Tennis Center (the "Premises" or "Joint Use Property"). Landlord hereby leases to Tenant the Premises for continued use as a Tennis Facility. Landlord and Tenant intend that the Premises remain subject to Joint Use as specifically described herein. Tenant hereby accepts the Premises in their condition existing as of the Commencement Date of this Agreement. 2. Definitions: The following definitions shall apply to the terms as used in this Agreement: A. "Premises" or "Joint Use Property" shall mean that certain real property and improvements described in Exhibit 1 attached hereto. B. "Joint Use Facilities" shall mean the tennis courts currently on the Joint Use Property including but not limited to the: public restrooms and parking lot. A graphical depiction of the Joint Use Facilities is attached hereto as Exhibit 1. The Joint Use Facilities specifically excludes that portion of the Premises identified as the Reservoir Service Area in Exhibit 1. C. "Technical Advisory Committee" shall mean that certain committee created and appointed by the City Manager of the City and the Superintendent of the District pursuant to the Joint Use Agreement between the parties pertaining to Godinez High School at Centennial Park. The Technical Advisory Committee shall be responsible for resolving conflicts in scheduling of the Joint Use Property or other implementing provisions of this Agreement at the Waterworks Parksite. D. "Regular School Hours" shall mean 6:00 am through 6:00 pm, Monday through Friday (excluding state and national holiday observed by the District) unless changed by agreement of the parties. E. "District Time" shall mean the time during Regular School Hours, when the District shall have the right to schedule use of the Joint Use Facilities. F. "City Time" shall mean those days and hours, outside of Regular School Hours, when the City shall have the right to schedule use of the Joint Use Facilities. 3. Term. The term of this Agreement shall be for a period often (10) years with an option to extend the term of the lease upon providing written notice within six (6) months of expiration of lease. Tenant shall have the right to exercise its option to renew the lease for two Page 2 of 7 11/4/2008 25R-4 DRAFT: FOR DISCUSSION PURPOSES DO NOT RECORD (2) additional ten (10) year terms. Upon expiration of the lease period, the lease will become a month-to-month lease. 4. Consideration. No money exchange is required. The Consideration for this lease is execution of the lease entered into this same date between these same parties for use of the City's property known as Angel Park. Said leases are contingent on the other lease being in effect. If either lease is terminated, for any reason, both leases shall be deemed terminated. 5. District Priority. District shall have the right, without prior consent of the City, to schedule use of the Joint Use Facilities during Regular School Hours for both the regular school year and any summer school. In the event that the District desires to use the Joint Use Facilities outside of Regular School Hours, it agrees that it will reserve the Joint Use Facilities ahead of schedule. 6. City Priority. City shall have the right at its discretion to schedule activities at the Joint Use Facilities, without prior consent of the District, provided (1) that the times are not in conflict with District Time or (2) activities previously approved by the Technical Advisory Committee. City regulations shall be in effect for purposes of any public usage of the tennis facilities. 7. Scheduling Conflicts. In the event that a scheduling conflict arises and the District requires use of the facilities during City Time, the District agrees that it will provide a reasonable relocation site for use by the City. 8. Supervision. The District will be responsible for managing the Joint Use Facilities during Regular School Hours and other District Times. Likewise, the City will be responsible for managing the Joint Use Facilities during City Time. The City shall provide a level of supervision and security commensurate with that provided at City-owned facilities at all times while using the Joint Use Facilities. 9. Conflict Resolution. In the event of any conflict with respect to the scheduling of the Joint Use Facilities, or any other implementing provisions in this Agreement, the Technical Advisory Committee shall be consulted to resolve the dispute. 10. Non Recording. Neither party shall record this Agreement. 11. Authority to Seek Grant Funding. The parties agree that Tenant shall have the right to seek grant funding for future projects and rely on its use and lease of the Neal Machander Tennis Center property as a basis for applying for grant funding. 12. Maintenance and Repair. During Regular School Hours for both the regular school year and any summer school, the Tenant shall, at its sole cost and expense, maintain and repair the Premises including, but not limited to, the removal of all trash, debris, graffiti, as well as janitorial services and any necessary special intensive cleaning. If Tenant causes any damage to the Premises, to the Premises or to access roadways or other nearby facilities, it shall properly repair same as specified by Landlord. All court, landscape, irrigation and structural repairs are Page 3 of 7 11 /4/2008 25R-5 DRAFT: FOR DISCUSSION PURPOSES DO NOT RECORD the responsibility of the District. The District further agrees that it will perform all deferred maintenance, including, but not limited to, resurfacing of the Tennis Courts. 13. Utilities. (a) Landlord shall pay for all electricity and water services furnished to the Premises for the use, operation and maintenance of Tenant's premises during the Term of this Agreement, or any extension thereof, and for the removal of trash from the Premises during the Term of this Agreement, or any extension thereof. (b) Tenant shall have the right to improve the present electrical and telecommunication cabling and outlets and any other such infrastructure that would reasonably be associated with Tenant's intended use of the Premises, all at Tenant's sole cost and expense. 14. Indemnity. (a) District shall defend, indemnify and save and hold harmless City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with District's performance of this Agreement or District's failure to comply with any of District's obligations contained in the Agreement caused by District, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of City. In the event City is named as codefendant, District shall notify City of such fact and shall represent City in such legal action unless City undertakes to represent itself as codefendant in such legal action, in which case City shall bear its own litigation costs, expenses and attorney's fees. (b) City shall defend, indemnify and save and hold harmless District, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with City's performance of this Agreement or City's failure to comply with any of City's obligations contained in the Agreement caused by City, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of District. In the event District is named as codefendant, City shall notify District of such fact and shall represent District in such legal action unless District undertakes to represent itself as codefendant in such legal action, in which event District shall bear its own litigation costs, expenses and attorney's fees. 15. Insurance. Both the City and the District shall maintain, for the period covered by this Agreement, at their own respective costs, their own respective policy or policies of general liability insurance and property insurance. Each party waives subrogation of its insurance coverage for the other entity. Self-insurance authorized by state law and/or maintained by the City or the District in the regular course of business for its other activities shall satisfy this requirement. Page 4 of 7 11 /4/2008 25R-6 DRAFT: FOR DISCUSSION PURPOSES DO NOT RECORD 16. Assignment. District shall not, either voluntarily or by operation of law, assign, transfer, mortgage, pledge, or encumber this lease or any interest therein, and shall not sublet said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants, and invitees of District excepted) to occupy or use said Premises, or any portion thereof, without the prior written consent of the City. 17. Construction, Removal and Modification of the Leased Premises. The District shall. first seek written authorization from City to modify, demolish or otherwise alter the improvements on the Leased Premises, or to add any new structures or improvements to the Leased Premises. 18. Termination. In the event of any damage, destruction or condemnation of the Premises, which renders the Premises unusable or inoperable in Tenant's judgment, Tenant shall have the right, but not the obligation, to terminate the Agreement with respect to the subject Premises by giving written notice to Landlord within thirty (30) days after such damage, destruction or condemnation. If by virtue of such casualty or condemnation, Tenant determines that the Premises is no longer adequate for Tenant to continue its operations, or any repairs to the Premises have not been completed or cannot reasonably be completed within sixty (60) days from the date of the damage, destruction or condemnation. This Agreement will become null and void. In the event of condemnation, unless Tenant is allowed by the condemning authority to continue its operations in the Premises, this Agreement shall terminate as of the date title to the Premises vests in the condemning authority or Tenant is required to cease its operations, whichever is earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to Landlord. 19. Notices. All notices, statements, demands, requests, consents, approvals, authorizations, appointments, or designations hereunder by either party to the other shall be in writing and shall be deemed given and served upon the other party, if delivered personally or three (3) days after depositing in the United States mail, postage prepaid, addressed as follows: If to CITY: City of Santa Ana 20 Civic Center Plaza P.O. BOX 1988 Santa Ana, CA 92702 Attn: Clerk of the Council And City of Santa Ana 20 Civic Center Plaza P.O. BOX 1988 Santa Ana, CA 92702 Attn: City Attorney Page 5 of 7 11 /4/2008 25R-7 DRAFT: FOR DISCUSSION PURPOSES DO NOT RECORD If to DISTRICT: Santa Ana Unified School District 1601 E. Chestnut Santa Ana, CA 92701 Attn: Assistant Superintendent of Budget, Facilities and Personnel 20. Incorporation of Recitals and Exhibits. All of the recitals and exhibits set forth in or attached to this Lease are by this reference incorporated in and made a part of this Lease. 21. Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Lease and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Lease or any amendments hereto. 22. Governing Law. This Lease shall be construed and interpreted in accordance with and shall be governed and enforced in all respects according to the laws of the State of California, without regard to conflicts of laws principles. 23. Entire Agreement. This Lease contains the entire understanding of the parties and supersedes any and all other written or oral understanding. No alteration of or amendment to this Lease shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. 24. Captions. Any captions or headings to the Sections and subsections in this Lease are solely for the convenience of the parties hereto, are not a part of this Lease, and shall not be used for the interpretation or determination of validity of this Lease or any provision hereof. 25. Severability. If any one or more of the provisions contained in this Lease 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 Lease shall be construed as if such invalid, illegal, or unenforceable term or provision had never been contained herein. 26. Further Assurances. Each party shall cooperate with the other and shall execute such other documents as may be reasonably necessary to carry out the provisions of this Lease including the providing of estoppel certificates. 27. No Waiver. Any waiver, consent or approval by either party of any breach, default or event of default of any provision, condition or covenant of this Lease must be in writing and shall be effective only to the extent set forth in writing. No waiver of any breach, default or event of default shall be deemed a waiver of any later breach, default or event of default of the same or any other provision of this Lease. Any failure or delay on the part of either party in exercising any power, right or privilege under this Lease shall not operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude any further exercise thereof. Page 6 of 7 11/4/2008 25R-8 DRAFT: FOR DISCUSSION PURPOSES DO NOT RECORD 28. Rights and Remedies. No right or remedy conferred by any of the specific provisions of this Lease is intended to be exclusive of any other right or remedy given hereunder or hereafter existing at law or in equity. The exercise of any one or more rights or the election of any one or more remedies by any party shall not constitute a waiver of the right to exercise other available rights or pursue other available remedies. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first written above. The "District" Santa Ana Unified School District, apolitical subdivision of the State of California The "City" City of Santa Ana A Charter City By: By: Superintendent By: President of the Board Attest: Attest: By: By: Clerk of the Board David N. Ream City Manager Patricia E. Healy Clerk of the Council Approved as to Form By: Page 7 of 7 25R-9 Joseph W. Fletcher City Attorney Jose Sandoval Managing Senior Assistant City Attorney 11 /4/2008 25R-10