AGREEMENT BETWEEN
MAGNOLIA SCHOOL DISTRICT
AND
THE CITY OF ANAHEIM
FOR LEASE OF REAL PROPERTY
(SCHWEITZER PARK)
THIS AGREEMENT made and entered into this 30th day of September, 2024 ("Effective Date"), by and between the Magnolia School District (hereinafter "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, and the City of Anaheim (hereinafter "City"), a municipal corporation (individually a "Party" and collectively "the Parties").
RECITALS
WHEREAS, School District owns property located at 229 S. Dale Avenue, Anaheim, California 92804, known as Dr. Albert Schweitzer Elementary School site ("Schweitzer School Property"); and
WHEREAS, the Schweitzer School Property includes approximately 1.68 acres of land used for park purposes ("Schweitzer Park Property"); and WHEREAS, City desires the use of Schweitzer Park Property for a public park; and WHEREAS, the parties agree that said property is an adequate and suitable location for a public park and that such use would be to the advantage and best interests of the parties and of the general public.
NOW, THEREFORE, in consideration of the foregoing recitals and of the mutual promises of the covenants hereinafter contained, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
Section 1. Description of Property. A map depiction of the Schweitzer Park Property and the Schweitzer School Property as set forth in this Agreement are attached hereto as Exhibit GiAll .
Section 2. Use. Through this Lease, School District grants to City full use the Schweitzer Park Property for public park purposes pursuant to the terms and conditions set forth herein. City does not have any right to use or access any other portion of the Schweitzer School Property. School District shall not charge the City a fee for use of the Schweitzer Park Property.
A. City Use. City shall have the right to operate the Schweitzer Park Property as a public park. City shall post signage throughout the Schweitzer Park Property that states the hours of operation of the Schweitzer Park Property for public use as set forth in this Section.
1 Section 3. I. Subject to Section 6 of this Agreement, the term of this Agreement shall be ten (10) years commencing on the Effective Date ("Term"), unless mutually extended in writing by both Parties. The Parties may also extend the Tenn by three (3) additional (5) five year terms through written amendment accepted and executed by both Parties. The Director of Community Services shall have the authority to execute such extension of the Term on behalf of the City. Either Party may, in its sole discretion, terminate this Agreement for any or no reason, upon one hundred eighty (180) days written notice to the other Party at the address set forth herein.
Upon the expiration or termination of this Agreement, at any time or upon any grounds provided herein, City shall immediately vacate the Schweitzer Park Property and return the Schweitzer Park Property to its original condition, normal wear and tear excepted.
Section 4. Conditions to Use.
(a) Maintenance of Schweitzer Park Property. The Parties agree that the Schweitzer Park Property will be kept in good repair and in a manner suitable for its intended use. City shall at all times keep and maintain the Schweitzer Park Property and the improvements thereon in a clean and safe condition in accordance with the standards of maintenance for other public parks owned by the City throughout the City of Anaheim.
Without limiting the generality of the foregoing, the obligation of City to repair, maintain, and keep in good condition shall include repair and maintenance of all improvements at the Schweitzer Park Property; performing both ordinary and extraordinary, foreseen and unforeseen repairs and maintenance; keeping the parcel, including all landscaping thereon, in good, safe and orderly condition, free of weeds, rubbish, debris and unlawful obstructions, properly lighted; and repair, restoration and maintenance of same, all at the City's sole cost and expense. The obligation of repair hereunder shall be subject to reasonable wear and tear; provided, however, that the effects of continued reasonable wear and tear shall not impair the City's obligation to keep the Schweitzer Park Property in such order, condition and repair as is hereinabove provided. (b) Clean-up of Schweitzer Park Propert . City shall be responsible for cleanup of the Schweitzer Park Property. As used herein, the term "cleanup" shall mean putting away equipment and supplies, picking up trash and similar related activities. Additionally, under no circumstances during the term of this Agreement shall City use or cause to be used in the Schweitzer Park Property any hazardous or toxic substances or materials, and under no circumstance during the term of this Agreement shall City store or dispose of any such substances or materials in the Schweitzer Park Property.
(c) Utilities. City shall be responsible for all utilities associated with the Schweitzer Park Property. City shall provide a separate meter for some or all of the utilities provided to the Leased portion of Schweitzer Park Property. (h) Insurance.
2 i) Public Liability and Propertx Damage. City agrees 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 City's use of the Schweitzer Park Property under this Agreement. Such insurance shall be in amounts not less than $2,500,000 per occurrence; $5,000,000 for general aggregate and $2,500,000 for property damage. ii) Automobile Liability. City also agrees to maintain in full force and effect with regard to any City owned vehicles which City brings onto the Schweitzer Park Property a suitable policy or policies of automobile liability insurance with a combined single limit of $1,000,000 per accident throughout the duration of the Agreement. iii) Workers' Corn: ensation. City shall also maintain, in full force and effect throughout the term of this Agreement, Workers' Compensation 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) Notice: Additional Named Insureds. 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. School District, its directors, officers, agents, employees and consultants, shall be designated as additional named insureds. v) Insurance Endorsements. Concurrent with the execution of the Agreement and prior to any use by City of the Schweitzer Park Property, City will provide School District with an endorsement(s) verifying such insurance and the terms described herein. vi) Riaht to Self Insure. In lieu of commercial insurance, City shall retain the right to self-insure all or any portion of its insurance obligations herein. (i) Indemni[ .
City agrees to indemnify, defend (at SCHOOL DISTRICT's option) and hold harmless School District, its officers, agents, employees, representatives and volunteers from and against any and all claims, demands, defense costs, actions, liability, or consequential damages of any kind or nature arising out of or in connection with activities or programs sponsored by City at School District's facilities, except those which arise out of the sole negligence of School District.
B. School District agrees to indemnify, defend (at City's option) and hold harmless City, its officers, agents, employees, representatives and volunteers from and against any and all claims, demands, defense costs, actions, liability, or consequential damages of any kind or nature arising out of or in connection with activities or programs sponsored by School District at City's facilities, except those which arise out of the sole negligence of City.
Section 5. Compliance with Law. City shall comply with all laws, ordinances, rules, and regulations applicable to the Schweitzer Park Property, enacted or promulgated by any public or governmental authority or agency, including without limitation School District, having jurisdiction over the Schweitzer Park Property.
3 Section 6. Termination. If either fails to perform any term, covenant or condition of this Agreement, or otherwise breaches this Agreement, and such failure or breach continues for more than thirty (30) days after written notice is received by the defaulting Party (or if the breach or default is of such character as to reasonably require more than thirty (30) days to cure, and the defaulting Party fails, within thirty (30) days after it receives written notice of such breach or default from the non-defaulting Party, to commence the cure of such default or thereafter fails to pursue with reasonable diligence the curing of such default to completion), then the non-defaulting Party may, at its option and without any further demand or notice terminate this Agreement.
Additionally, either Party may terminate this Agreement upon one hundred eighty (180) days' notice without cause.
Section 7. Legal Interpretation of Instrument. This Agreement, and any litigation or arbitration arising out of this Agreement, shall be governed by the laws of the State of California.
Section 8. 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:
If to CITY CITY OF ANAHEIM
Attention: Community Services Director
200 S. Anaheim Blvd., Suite 433
Anaheim, CA 92805
If to SCHOOL DISTRICT: MAGNOLIA SCHOOL DISTRICT
Attention: Superintendent
2705W. Orange Avenue
Anaheim, CA 92804
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.
Section 9. Official Representatives. The official representative for School District shall be its Superintendent or its designee. The official representative for City shall be the City Manager, or its designee.
Section 10. Emplovees/Inderendent Contractors. 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 School District under the jurisdiction of School District, nor shall such City employees have any School District pension, civil service, or other status while an employee of the City.
4 City shall have no authority to contract on behalf of School 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 School District.
Section 11. Attorneys' Fees: Litigation. 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 Parties concerning this Agreement, each Party shall be responsible for its own attorney's fees and costs.
Section 12. Assigrmaent/Subletting. City shall not assign or sublicense this Agreement or any right or privilege City might have under this Agreement without the prior written consent of School District, which consent maybe withheld and/or conditioned at the sole discretion of the School District. Such conditions, if any, will include, but are not limited to: assignee/sublicensee must agree in a written notice to School District to carry out and observe each of City's agreements hereunder and School District must have 24-hour contact information for any assignee/sublicensee.
Section 13. Sims. City shall 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 Schweitzer Park Property.
Section 14. Time of the Essence. Time is of the essence with respect to each of the terms, covenants, and conditions of this Agreement.
Section 15. Severat% . 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 16. Entire Agreement. Waivers and Amendments. 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 or modification to this Agreement must be in writing and executed by City and School District.
Section 17. Authority. The person(s) executing this Agreement on behalf of the Parties hereto warrant that (i) such Party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which said Party is bound. In accordance with California Education Code section 17604, this Agreement is not a valid or enforceable obligation against the School District until approved or ratified by motion of the Governing Board of the School District duly passed and adopted. 5 Section 18. Execution in Counternart. 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.
Section 19. Effect of Recitals. The Recitals above are deemed true and correct, are hereby incorporated into this Section as though fully set forth herein, and City and School District acknowledge and agree that they are each bound by the same.
Section 20. Exhibits. Exhibit "A" attached to this Agreement is incorporated herein by this reference and made a part hereof.
Section 21. Conflicts of Interest. No director, officer, official, representative, agent or employee of either Party shall have any financial interest, direct or indirect, in this Agreement.
Section 22. Nondiscrimination. There shall be no discrimination by City or School District against any person on account of race, color, religion, sex, marital status, national origin, or ancestry in the performance of their respective obligations under this Agreement.
Section 23. Ri lits and Remedies are Cumulative. Except as may be otherwise expressly stated in this Agreement, the rights and remedies of the Parties are cumulative, and the exercise by any Party of one or more of its right or remedies shall not preclude the exercise by it, at the same time or at different times, of any other rights or remedies for the same default or any other default by another Party.
Section 24. Provisions Required b , Law Deemed Inserted. Each and every provision of law and clause required by law to be inserted in this Agreement shall be deemed to be inserted herein and the Agreement shall be read and enforced as though it were included herein, and if through mistake or otherwise any such provision is not inserted, or is not correctly inserted, then upon application of either Party the Agreement shall forthwith be physically amended to make such insertion or correction.
Section 25. Cooperation. School District and City acknowledge that it may be necessary to execute documents other than those specifically referred to herein in order to accomplish the objectives and requirements that are set out in this Agreement. Both School District and City 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 the intent of the Parties as evidenced in this Agreement and attached Exhibit hereto.
Section 27. 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 School 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.
Section 28. Da s/Holidavs. 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 6 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 29. Nonliabilitv 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 30. Third Party Beneficiaries. Nothing in this Agreement shall be construed to confer any rights upon any party not signatory to this Agreement.
Section 31. Effective Date. The Effective Date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signators hereto. In the event School District fails to set forth a date of execution opposite the name(s) of School District's signator(s), School District hereby authorizes City, by and through its representative, to insert the date of execution by School District's sigmator(s) as the date said Agreement, as executed by School District, is received by City.
(** Signatures on Following Page "I
7 IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the Effective Date.
MAGNOLIA SCHOOL DISTRICT
By:
Its:
CITY OF ANAHEIM,
a municipal corporation
By
AI iEST:
By:
City Clerk of the City of Anaheim
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:
Bryn M. Morley
Deputy City Attorney 152733
8 EXHIBIT "A"
MAP OF SCHWEITZER PARK PROPERTY,
DEPICTING SCHWEITZER SCHOOL PROPERTY
[To Be Inserted]
9 XUi
Total Park Acres: