AGREEMENT BETWEEN THE CITY OF MANHATTAN BEACH AND MANHATTAN BEACH UNIFIED SCHOOL DISTRICT FOR THE PROVISION, USE AND MAINTENANCE OF THE LOWER PLAYGROUND AREA IN POLLIWOG PARK THIS AGREEMENT for the provision, use and maintenance of educational, recreational and community facilities (“Agreement”) is entered into as of the first day of July 18, 2023, by and between the CITY OF MANHATTAN BEACH, a municipal corporation (“City”), and the MANHATTAN BEACH UNIFIED SCHOOL DISTRICT, a public school district duly organized under the laws of the State of California (“District”). City and District may be referred to as “parties” herein.
RECITALS
Pursuant to the provisions of Title 1, Division 1, Part 7, Chapter 10 of the California Education Code (commencing with section 10900), Title 1, Division 7, Chapter 5, Article 1 of the California Government Code (commencing with section 6500), and section 37110.5 of the California Government Code, the City and the District are authorized to enter into an agreement providing for educational, recreational, and community facilities and programs.
The District and City executed a Master Use Agreement in 2013 and subsequent amendments in 2016, 2017 and 2018 for the provision, use, and maintenance of educational, recreational, and community facilities and programs, including the Lower Playground Area in Polliwog Park. For ease of convenience, the parties have agreed to consolidate all prior agreements into an amended and restated Master Agreement Between the City of Manhattan Beach and Manhattan Beach Unified School District for the Provision, Use and Maintenance of Educational, Recreational and Community Facilities and Programs for the Fiscal Years 2023-2033” (“Master Agreement”).
The District and City wish to carve out the Lower Playground Area in Polliwog Park from the Master Agreement. The remainder of Polliwog Park will remain part of the Master Agreement.
The City has applied for and received a grant from the State of California under Proposition 68, Project Numbers 18-19-042 and 18-19-043, for the Polliwog Playground Replacement Project.
The District is able and willing to continue to provide the City with the use of the Lower Playground Area in Polliwog Park for use by the City in carrying out its programs for the benefit of its residents.
The purpose of this Agreement is to establish a framework setting forth the basic terms applicable to the City’s use of the Lower Playground Area in Polliwog Park.
It is the desire of the District and the City, upon the express terms and conditions set forth in this Agreement, to establish specific terms and conditions for the Lower Playground Area at Polliwog Park for the mutual benefit and use of each party, pursuant to the terms set forth herein.
The District and the City acknowledge that this Agreement is being entered into by each party for the mutual benefit of each.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and the District hereby agree as follows:
Section 1. Definitions. Unless otherwise provided in this Agreement, including its exhibits, the following terms shall be defined as set forth below:
“City Manager”: City Manager for the City.
“City Sanctioned”: Approved by the City Manager or his/her designee. “Director”: Manhattan Beach Director of Parks and Recreation or his/her designee. “Superintendent”: Superintendent for the Manhattan Beach Unified School District “Deputy Superintendent”: Deputy Superintendent for the Manhattan Beach Unified School District Section 2. Term of Agreement. The term of this Agreement is July 1, 2023 through June 30, 2053 (“Term”), unless otherwise terminated pursuant to Section 12. Additionally, there shall be 6 five-year options to renew this Agreement with the mutual written consent of the parties.
Section 3. Lower Playground at Polliwog Park. Depictions of the Lower Playground Area at Polliwog Park that are the subject of this Agreement are attached hereto as Exhibit A. Note that the area outlined in black in Exhibit A, identified as the Lower Playground, is the only portion of Polliwog Park that is subject to this Agreement. The remainder of Polliwog Park and Premier Field are part of the Master Agreement unless this Agreement expressly incorporates portions of the Master Agreement.
Section 4. Grant and Covenant. The District hereby grants to the City a license to use the Lower Playground Area at Polliwog Park subject to the general terms set forth in this Agreement, and the specific terms which may be set forth in subsequent, site-specific agreements.
Section 5. District Obligations.
The District shall make the Lower Playground Area at Polliwog Park available to the City subject to the terms of this Agreement.
Restriction on Use. The City has no right to use and shall not permit the Lower Playground Area at Polliwog Park to be used for a purpose or in a manner that:
Is not legal;
Is not a use for which the District Facilities were designed; or Is prohibited by the District’s insurance policies.
Site Specific Terms and Conditions.
The parties previously developed site-specific agreements for the City’s use of District Facilities identified in the Master Agreement. The site specific terms and conditions for the City’s use of Polliwog Park and Premier Fields is attached to the Master Agreement as Exhibit E. Those site specifics terms and conditions for the City’s use of Polliwog Park and Premier Fields shall also apply to the Lower Playground Area at Polliwog Park.
To the extent that any provision in any Exhibit or any site-specific agreement the parties may execute in the future conflicts with any provision in the body of this Agreement, the provisions in the body of this Agreement shall prevail unless the terms of such other site-specific agreements expressly state that the other site-specific agreement shall prevail notwithstanding this Section. The parties may enter into additional site-specific agreements, and any such agreements shall be subject to all provisions in this Agreement as if expressly stated in that specific agreement.
Improvements to the Lower Playground at Polliwog Park. The City Manager or designee and the Superintendent or designee shall meet, when necessary, to discuss additional improvements to the Lower Playground at Polliwog Park. Upon approval by the City Council and the District Board, the City may fund additional agreed-upon improvements to some or all of the Lower Playground at Polliwog Park. Any improvements to be made to the Lower Playground at Polliwog Park will be pursuant to plans and specifications approved by the District and, if required, the Division of the State Architect.
Deed Restriction Submission. The District shall file the Deed Restriction referenced in Exhibit A with the County of Los Angeles within 60 days of executing this Agreement.
Section 6. City Obligations. In consideration for the City’s use and the District’s provision of the facilities and programs as described herein, the City shall provide to the District the following compensation:
Annual Payment for Use of the Lower Playground Area at Polliwog Park. The City’s annual payment for the use of the Lower Playground Area at Polliwog Park is included in Section 6(A) of the Master Agreement. In the event that the Master Agreement terminates prior to the termination of this Agreement, the Parties agree to negotiate a separate annual payment consistent with Section 6(A) of the Master Agreement for the use of the Lower Playground at Polliwog Park for the remainder of this Agreement.
Maintenance of the Playground Area at Polliwog Park. The City shall maintain the Lower Playground Area at Polliwog Park in a clean and safe manner and shall inspect the playground equipment at least once a year to insure that the playground equipment and structures are in a safe working condition.
Improvements to the Lower Playground Area at Polliwog Park. The City shall use the proceeds from State of California Proposition 68 Grant, Project Numbers 18-19-042 and 18-19-043 to replace and improve the playground area at Polliwog Park. Any improvements to the Lower Playground Area at Polliwog Park will be performed at the City’s sole expense.
Section 7. Rules and Regulations. The City may formulate and enforce such rules and regulations that apply to its use the use of the Lower Playground Area at Polliwog Park as it deems appropriate. The City shall not permit any person or organization to use the Playground Area at Polliwog Park where such use is inconsistent with Education Code Sections 10900 through 10915 and Section 40044 and other applicable laws.
Section 8. Insurance. Throughout the term of this Agreement and any option period, the City agrees to maintain insurance for the Lower Playground Area at Polliwog Park at the same levels identified in the Master Agreement for the use of other District facilities.
Section 9. Indemnification.
Pursuant to Government Code Section 895.4, the District agrees to indemnify, defend and hold harmless the City, the City Council and each member thereof, and every officer, employee and agent of the City, from all claims, suits or actions of every name, kind and description, including attorney fees and costs, brought for or on account of injury (as defined in Government Code Section 810.8) arising from the acts or omissions of the District in connection with its obligations and performance under this Agreement.
Pursuant to Government Code Section 895.4, the City agrees to indemnify, defend and hold harmless the District, the Board and each member thereof, and every officer, employee and agent of the Board, from all claims, suits or actions of every name, kind and description, including attorney fees and costs, brought for or on account of injury (as defined in Government Code Section 810.8) arising from the acts or omissions of the City in connection with its obligations and performance under this Agreement.
This Section shall survive the expiration or earlier termination of this Agreement.
Section 10. City and District’s Right to Terminate.
The City or District may terminate this Agreement only for cause, after providing 90 days written notice to the other party of the alleged material breach of this Agreement. If the party does not cure the alleged material breach of this Agreement within the 90-day notice period, then this Agreement shall terminate.
Section 11. Surrender.
The City shall, on or before the expiration date of this Agreement, or on the earlier termination of this Agreement, peaceably and quietly leave, surrender, and yield up unto the District the Lower Playground Area at Polliwog Park, together with all alterations, additions, and improvements.
Section 12. Dispute Resolution.
In the event a dispute arises between the Parties under this Agreement, the Parties agree to use the Dispute Resolution clause in the Master Agreement.
Section 13. Source of Funds. Expenditures by the City under this Agreement shall be appropriated from monies received from State of California Proposition 68 Grant, Project Numbers 18-19-042 and 18-19-043 and in the City’s General Fund, provided that no funds shall be expended which are derived from property taxes. Further, no funds expended under this Agreement shall be derived from assessments based on the value of property within the City.
Section 14. Loss of Use of the Lower Playground Area at Polliwog Park. If any the Lower Playground Area at Polliwog Park becomes damaged by fire, casualty or other cause or happening as to be rendered unusable, or if any authority having jurisdiction shall order the demolition or removal of the Lower Playground Area, then this Agreement shall cease and become null and void. The District shall have no obligation to restore said facilities or put them in proper condition for use and occupancy. The City and the District, however, agree that if said facilities are not restored or placed in proper condition for use and occupancy, that the annual payment in the Master Agreement as it pertains to the Lower Playground Area at Polliwog Park may be reduced by a sum that quantifies the loss of such use as reasonably determined by the City after consultation with the District.
Section 15. Miscellaneous.
Emergency and Notice Contact. The Parties agree to use the emergency contacts and notice provision contained in the Master Agreement.
Counterparts. This Agreement may be executed in any number of counterparts, each which shall be deemed an original but all of which when taken together shall constitute one and the same instrument. The signature page of any counterpart may be detached therefrom without impairing the legal effect of the signature(s) thereon provided such signature page is attached to any other counterpart identical thereto except having additional signature pages executed by other parties to this Agreement attached thereto.
Applicable Law. This Agreement’s interpretation and implementation shall be governed by the laws of the State of California and any questions arising hereunder shall be construed and determined according to such laws.
Headings. Headings at the beginning of each numbered section of this Agreement are solely for the convenience of the parties and are not a part of this Agreement.
Time. Time is of the essence in this Agreement.
Entire Agreement, Amendments and Extensions. This Agreement is the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all other agreements.
Exhibits. All Exhibits attached hereto are incorporated herein by this reference.
Severability Clause. If any provision of this Agreement or the application thereof to any person or circumstance is held invalid, only those invalid provisions shall cease and become null and void. Should either party determine that the exclusion of those provisions render the Agreement contrary to the intent of the parties, the City and the District shall use their best efforts to restructure the Agreement consistent with the original intent of the parties. If the City and the District are unable to agree on a restructuring of the Agreement after utilizing their best efforts, this Agreement shall become null and void upon thirty (30) days’ written notice, and at the election of, either party hereto.
Successors. This Agreement shall be binding upon the assignees, transferees, and successors in interest of both the City and the District.
Interpretation of Agreement. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. The section headings are for purposes of convenience only.
Termination of the Master Agreement. In the event that the Master Agreement between the Parties terminates before the termination date of this Agreement, those incorporated sections of the Master Agreement in this Agreement will survive and be enforceable until such time that this Agreement terminates.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement as of the date first written above.
ATTEST: CITY OF MANHATTAN BEACH,
a municipal corporation
By:
Liza Tamura, City Clerk Bruce Moe, City Manager APPROVED AS TO FORM:
Quinn M. Barrow, City Attorney
City of Manhattan Beach
MANHATTAN BEACH UNIFIED SCHOOL DISTRICT,
a public school district duly organized under the laws of the State of California By:
John Bowes, Ed.D., Superintendent
APPROVED AS TO FORM:
Martin Hom, District Counsel
Manhattan Beach Unified School District
EXHIBIT A
RECORDING REQUESTED BY:
Los Angeles County Regional Park and Open Space District WHEN RECORDED MAIL TO:
Los Angeles County Regional Park and Open Space District 1000 S. Fremont Avenue, Unit #40 Building A-9 East, Ground Floor Alhambra, CA 91803
Attn: Administration Section
DEED RESTRICTION
WHEREAS, Manhattan Beach Unified School District [hereinafter referred to as “Owner(s)”] is/are recorded owner(s) of the real property described in Exhibit A, commonly known as Polliwog Park, attached and incorporated herein by reference (hereinafter referred to as the “Property”); and WHEREAS, this Deed Restriction shall only apply to the Lower Playground area on the Property (which is outlined in black on Exhibit A; and WHEREAS, City of Manhattan Beach (hereinafter referred to as “Grantee”); and WHEREAS, the Los Angeles County Regional Park and Open Space District (hereinafter referred to as the “District”) is a public agency created and existing under the authority of Section 5506.9 et seq of the California Public Resources Code (hereinafter referred to as the “PRC”); and WHEREAS, Grantee applied to the District for grant funds available pursuant to the Measure A Annual Allocation Grant Program the Polliwog Park Playground Replacement Project; and WHEREAS, on December 1, 2020 the District conditionally approved Grant No. 58G1-21-2707 (hereinafter referred to as “Grant”) for the replacement of the Lower Polliwog Park Playground on the Property, subject to, among other conditions, recordation of this Deed Restriction as it pertains only to the Lower Playground area on the Property; and WHEREAS, but for the imposition of the Deed Restriction condition of the Grant, the Grant would not be consistent with the public purposes of the District’s Grant Program, Safe Neighborhood Parks Proposition of 19__ Section ___ et seq, and the funds that are the subject of the Grant could therefore not have been granted; and WHEREAS, Owner and Grantee have entered into an Agreement for the Provision, Use, and Maintenance of the Lower Playground at Polliwog Park; and WHEREAS, Owner(s) has/have elected to comply with the Deed Restriction of the Grant, so as to enable Grantee to receive the Grant funds and perform the work described in the grant.
NOW, THEREFORE, in consideration of the award of the Grant funds by the District, the undersigned Owner(s) for himself/herself/themselves and for his/her/their heirs, assigns and successors-in-interest, hereby irrevocably covenant(s) with the District that the condition of the Grant (set forth at paragraphs 1 through 5 and in Exhibit B hereto) shall at all times on and after the date on which this Deed Restriction is recorded constitute for all purposes covenants, conditions, and restrictions on the use and enjoyment of the Lower Playground area on the Property that are here by attached to the deed of the Property as fully effective components thereof.
DURATION. This Deed Restriction shall only apply to the Lower Playground Area at Polliwog Park which is outlined in black in Exhibit A, and shall remain in full force and effect and shall bind Owner(s) and all his/her/their assigns or successors-in-interest in for the 30-year term of the Agreement for the Provision, Use, and Maintenance of the Lower Playground at Polliwog Park and for any extension or renewal (i.e. options) of the Agreement that is exercised by the Owner and Grantee.
TAXES AND ASSESSMENTS. It is intended that this Deed Restriction is irrevocable and shall constitute an enforceable restriction within the meaning of a) Article XIII, Section 8 of the California Constitution and b) Section 402(i) of the California Revenue and Taxation Code or successor statute. Furthermore, this Deed Restriction shall be deemed to constitute a servitude upon and burden to the Property within the meaning of Section 3712(d) of the California Revenue and Taxation Code, or successor statute, which survives a sale of tax-deeded property.
RIGHT OF ENTRY. The District or its agent or employees may enter onto the Lower Playground area on the Property at times reasonably acceptable to Owner(s) to ascertain whether the use restrictions set forth above are being observed.
REMEDIES. Any act, conveyance, contract, or authorization by Owner(s) whether written or oral which uses or would cause to be used or would permit use of the Lower Playground area on the Property contrary to the terms of this Deed Restriction will be deemed a violation and a breach hereof. The District may pursue any and all available legal and/or equitable remedies to enforce the terms and conditions of this Deed Restriction. In the event of a breach, any forbearance on the part of the District to enforce the terms and provisions hereof shall not be deemed a waiver of enforcement rights regarding any subsequent breach.
SEVERABILITY. If any provision of these restrictions is held to be invalid, or for any reason becomes unenforceable, no other provision shall be affected or impaired.
Dated: ______________________, 2023
Signed: ________________________________ Signed: ____________________________ _________________________________ _____________________________ PRINT/TYPE NAME & TITLE OF ABOVE PRINT/TYPE NAME & TITLE OF ABOVE (GRANTEE’S AUTHORIZED REPRESENTATIVE) (ADDITIONAL SIGNATURE, AS REQUIRED) **NOTARY ACKNOWLEDGEMENT ON NEXT PAGE**
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