HomeMy WebLinkAboutContract 1675 (,(,0 C r6
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DENNIS KEAT SOCCER PARK
OPERATION, MAINTENANCE AND USE AGREEMENT
BETWEEN
AMERICAN YOUTH SOCCER ORGANIZATION
REGION 1200
AND
CITY OF CATHEDRAL CITY
THIS OPERATION, MAINTENANCE AND USE AGREEMENT (the "Agreement")
is made and entered into this %a day of October 2016, by and between the CITY OF
CATHEDRAL CITY, a municipal corporation (hereinafter referred to as the "City"), and
the AMERICAN YOUTH SOCCER ORGANIZATION — REGION 1200, a nonprofit
organization created under the laws of the State of California (hereinafter referred to as
"AYSO REGION 1200"), concerning the operation, maintenance and use of fields and
facilities known for purposed of this Agreement as the Cathedral City Soccer Park, aka
Dennis Keat Soccer Park (hereinafter referred to as the "Park").
RECITALS
WHEREAS, The City owns a certain real property bounded by James Workman
Middle School, Tortuga Road, 30th Avenue and Santoro Drive, described in EXHIBIT "A;"
attached hereto and incorporated herein by this reference; and
WHEREAS, the City desires to contract for the operation, maintenance and use of
the Park with AYSO REGION 1200; and
WHEREAS, the City and AYSO REGION 1200 wish to enter into this Agreement
to provide for long-term operations and programing for youth soccer and other events at
the Park and for the maintenance of the fields and facilities of the Park; and
WHEREAS, it is the intent of the parties that by entering into this Agreement, that
youth sports programs and other events in the City will be promoted and enhanced and
the Park will be sufficiently operated and maintained; and
WHEREAS, it is the intent of the parties to provide the optimum beneficial use of
the Park and to cooperate in the performance of their obligations under this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE COVENANTS,
CONDITIONS AND PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD
AND VALUABLE CONSIDERATION, THE RECEIPT OF WHICH IS HEREBY
ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Page 1 of 17
Section 1 RECITALS
The Recitals set forth above are true and correct and are hereby incorporated into
this Agreement by this reference, as though set forth herein.
Section 2 TERM
This Agreement shall become effective upon execution by the parties and shall
last for a period of(5) years, terminating on September 28, 2021, unless said Agreement
is otherwise extended in writing by both Parties or otherwise terminated by either Party
pursuant to Section 24 of this Agreement prior to said expiration date.
Section 3 EVENT AND ACTIVITY SCHEDULING
During the Term of this Agreement, AYSO REGION 1200 shall schedule the uses
of all Park fields and facilities provided that the events and/or activities at the Park fields
do not conflict with those schedules for City activities. The City shall have priority (with 30
days prior notice to AYSO REGION 1200 during the soccer season) over those uses of
the fields and facilities and then AYSO REGION 1200 shall have the non-exclusive right
and second priority to use the Park facilities and fields. Use by other non-profit
organizations has third priority.
Third party usage that requires use of the restrooms facilities may require a special
use permit including related deposits and fees. Third party events will also be required to
strictly adhere to the City's insurance requirements with the City and AYSO REGION
1200 being indemnified and named as additional insureds. Third party usage includes
responsibility for any fees associate with cleanup and repairs to the park facilities
attributable to the event.
Section 4 PERMITTED USES OF THE PARK
The Park shall be used by AYSO REGION 1200 solely for the purpose of operating
a youth soccer program and fundraising activities undertaken by AYSO REGION 1200 in
support of its youth soccer program. It is the express intent of the City and AYSO
REGION 1200 that, other than normal wear and tear from youth soccer games and
practices, the parties shall maintain the integrity and quality of the Park, and that no use
of the Park be approved for any activity that would denigrate the quality of the Park.
Section 5 MAINTENANCE RESPONSIBILITIES OF THE CITY
The City shall perform the following maintenance obligations during the Term of
this Agreement:
(a) Purchase and periodically apply fertilizer to the fields and landscaping as
needed; and
(b) Maintain any signs in good repair. If needed,the City also has the obligation
to repair or replace any sign; and
(c) Replace sod and over seed as needed on the soccer fields; and
(d) Replace trees, shrubs and park furniture as needed; and
(e) Maintain all lighting in good working condition and replace and repair
lighting as needed; and
(f) Maintain major structural components of the Park, including but not limited
to any main buildings, the parking lot asphalt, and water and sewer mains and irrigation
pumps (pumping station) and mains.
(g) Regularly remove trash, refuse, litter and debris from the Park properly as
needed to maintain the health and welfare of the Park and its visitors.
(h) Assume the entire maintenance responsibilities for the park from June 1
through August 31 annually.
Section 6 MAINTENANCE RESPONSIBILITIES OF AYSO REGION
1200
AYSO REGION 1200 shall perform the following maintenance obligations from
September 1, through May 31st of each year during the Term of this Agreement:
(a) Maintain all fields and facilities of the Park during the entire Term of this
Agreement at its own expense, using AYSO REGION 1200's own equipment, in good
satisfactory condition and in compliance with all applicable regulations;
(b) Maintain all field turf in the Park, including, but not limited to, mowing the
entire Park as needed, rolling sod when needed; and ensuring the edges of sod rolls
tightly abut each other;
(c) Insure that all irrigation systems in the Park are functioning properly during
the soccer season, but not limited to, repairing and/or replacing sprinkler heads, risers,
pipe, timers, valves, controls and assorted parts warn or damaged by AYSO REGION
1200 during it's use of the facility. Further, AYSO REGION 1200 shall repair any broken
irrigation parts within twelve (12) hours of any call from the public or the City;
(d) Adjust watering to prevent brown or soggy spots on any and all landscaping,
including any grass fields;
(e) Trim trees and shrubs as needed, but in no event less frequently than once
each year;
(f) Maintain restrooms and drinking fountains at the Park in a clean, sanitary,
safe and working condition at all times including, but not limited to, cleaning the restrooms
facilities and locking and unlocking the restroom facilities during business hours each day
the Park is in AYSO REGION 1200's use.;
(g) Report graffiti identified in the Park within twenty-four (24) hours after first
being notified of the existence of graffiti;
(h) Re-stripe the parking lot as needed;
(i) Maintain all fields and facilities of the Park in such a manner as they shall
at no time constitute a public or private nuisance;
(j) Insure that all fields and facilities of the Park remain clean and in good
condition after each use by any group or organizations; and
(k) Install and maintain signs conspicuously placed at the Park indicating to the
general public the schedule of use of all fields and facilities. The signs shall be
continuously updated with current schedules of use at all times.
(I) Limit the AYSO REGION 1200 regular use of the facility to Mondays,
Tuesdays, Wednesdays, Thursdays, and Saturdays during the Soccer Season.
AYSO REGION 1200 will be allowed to use the facility for soccer related activities
on two (2) Fridays and two (2) Sundays per soccer season with prior City approval.
(m) To the extent relating to AYSO REGION 1200's use, limit the field lighting
from dusk to 9:00 pm nightly during the soccer season and operate the field lighting for
the northerly most fields first and proceeding to illuminate the southerly fields only as
needed to accommodate AYSO REGION 1200 soccer activities.
(n) Limit the parking lot lighting from dusk to 10:00 pm nightly.
Section 7 PAYMENT FOR ELECTRICAL AND WATER CHARGES
(a) The City shall pay for the costs of domestic water provided to the Park by
the Coachella Valley Water District ("CVWD") and sewer service charges; and
(b) AYSO REGION 1200 shall reimburse the City up to a total amount of Seven
Thousand Dollars ($7,000) per year for charges incurred from electricity services at the
Park currently provided by Southern California Edison during the periods of use by AYSO
REGION 1200. Specifically, AYSO REGION 1200 shall pay for the first $7,000 in
electricity charges incurred within a year related to the periods of use by AYSO REGION
1200 and the City shall pay any remaining balance above $7,000 per year. If the
electricity charges are less than $7,000 for a certain year, the remaining balance shall be
applied toward the domestic water costs related the periods use of the facility by AYSO
REGION 1200..
Section 8 INSPECTION OF PARK
The City shall, during all periods of operation by AYSO REGION 1200, except for
practice and games, have the right to enter any and all facilities and fields of the Park at
any time in the City's absolute discretion to conduct an inspection.
Section 9 REPRESENTATIONS AND ACKNOWLEDGMENTS
REGARDING INDEPENDENT CONTRACTOR'S STATUS
OF AYSO REGION 1200
(a) AYSO REGION 1200 represents and acknowledges the following:
(1) The City is not required to provide any training or legal counsel to
AYSO REGION 1200 or its employees in order for AYSO REGION 1200 to perform the
services described in this Agreement.
(2) Performance of services described in this Agreement does not have
to be integrated into the daily business operations of the City.
(3) The services described in this Agreement can be performed without
the use of City equipment, materials, or tools unless otherwise provided under a separate
agreement.
(4) Nothing in this Agreement shall be interpreted to imply that the City
must maintain any contractual relationship with AYSO REGION 1200 on a continuing
basis after termination of this Agreement.
(5) The City will not be requested or demanded to assume any liability
for the direct payment of any salary, wage or other such compensation to any person
employed by AYSO REGION 1200 to perform the services described in this Agreement.
(6) AYSO REGION 1200 shall not at any time or in any manner
represent that it or any of its officers, employees, or agents are "employees" of the City.
(b) The City represents and acknowledges the following:
(1) AYSO REGION 1200 is not required to comply with daily instructions
from City staff with respect to when, where or how AYSO REGION 1200 must perform
the services set forth in this Agreement.
(2) AYSO REGION 1200 is solely responsible for determining who,
under the supervision or direction of AYSO REGION 1200, will perform the services set
forth in this Agreement.
(3) The City will not hire, supervise or pay any assistants working for
AYSO REGION 1200 pursuant to this Agreement.
(4) Nothing in this Agreement shall be interpreted to imply that AYSO
REGION 1200 must maintain any contractual relationship with the City on a continuing
basis after termination of this Agreement.
(5) AYSO REGION 1200 is not required to devote full time to the
business operations of the City in order to perform the services set forth in this Agreement.
(6) AYSO REGION 1200 is not required to perform the services set forth
in the Agreement in any particular order or sequence.
(7) Nothing in this Agreement shall be interpreted to preclude AYSO
REGION 1200 from working for other persons or firms, provided that such work does not
create a conflict of interest.
Section 10 NOT AGENT OF THE CITY
(a) Nothing contained in this Agreement shall be deemed, construed or
represented by the City or AYSO REGION 1200 or by any third person to create the
relationship of principal and agent.
(b) AYSO REGION 1200 shall have no authority, expressed or implied, to act
on behalf of the City in any capacity whatsoever as an agent, nor shall AYSO REGION
1200 have any authority, expressed or implied, to bind the City to any obligation
whatsoever.
Section 11 QUALIFICATIONS
AYSO REGION 1200 represents that it has obtained and will maintain at all times
during the term of this Agreement all professional and/or business licenses, training,
certifications and/or permits necessary for performing the services and obligations
described in this Agreement.
Section 12 WARRANTY
AYSO REGION 1200 warrants that all services will be performed in a competent,
professional and satisfactory manner in accordance with standards prevalent in the
industry for such services.
Section 13 FAMILIARITY WITH WORK
(a) By executing this Agreement, AYSO REGION 1200 warrants that (1) it has
thoroughly investigated and considered the work to be performed, (2) it has investigated
the issues, regarding the services to be provided, (3) it has carefully considered how the
work should be performed, and (4) it fully understands the facilities, difficulties and
restrictions of performing the work under this Agreement.
(b) Should AYSO REGION 1200 discover any latent or unknown conditions
materially differing from those inherent in the work or as represented by the City, it shall
immediately inform the City of such fact and shall not proceed except at AYSO REGION
1200's risk until written instructions are received from the City Manager or his or her
designee.
Section 14 CONFLICTS OF INTEREST
AYSO REGION 1200 covenants that it does not have any interest, nor shall it
acquire an interest, directly or indirectly, which would conflict in any manner with the
performance of its services under this Agreement.
Section 15 NONDISCRIMINATION
(a) AYSO REGION 1200 shall comply with the City's employment related
nondiscrimination policies as set forth in the City's Municipal Code, as it may be amended
from time to time.
(b) AYSO REGION 1200 acknowledges that the City's employment-related
nondiscrimination policies prohibit discrimination on the basis of an individual's sex,
marital status, race, color, religion, ancestry, national origin, physical handicap, sexual
orientation, and domestic partnership status.
Section 16 COMPLIANCE WITH LAWS
AYSO REGION 1200 shall comply in all material respects with all local, state and
federal laws and regulations applicable to the services required hereunder, including any
rule, regulation or bylaw governing the conduct or performance of AYSO REGION 1200
and/or its employees, officers, or board members.
Section 17 INSURANCE REQUIREMENTS
AYSO REGION 1200 shall procure and maintain at its own expense, during the
stated soccer season and for specified dates and times, during the Term of this
Agreement, comprehensive general liability insurance of not less than One Million Dollars
($1,000,000) combines single limit per occurrence, and Two Million Dollars ($2,000,000)
in the aggregate, for bodily injury, personal injury, death, lose or damage resulting from
the wrongful or negligent acts by AYSO REGION 1200 or its officers, employees,
servants, volunteers and agents and independent contractors. AYSO REGION 1200
shall further procure and maintain at its own expense, during the Term of this Agreement,
commercial vehicle liability insurance covering personal injury and property damage, of
not less than One Million Dollars ($1,000,000) combines single limit per occurrence,
covering any vehicle utilized by AYSO REGION 1200 or its officers, employees, servants,
volunteers and agents and independent contractors in performing the services required
by this Agreement.
AYSO REGION 1200 shall procure and maintain at its own expense, during the
Term of this Agreement, property liability insurance in an amount equal to the full
insurable value of all fixtures and equipment owned or belonging to AYSO REGION 1200
located or used in the Park to protect against damage or destruction by fire, theft or other
elements.
Section 18 WORKERS' COMPENSATION INSURANCE (NOT
APPLICABLE)
(a) AYSO REGION 1200 shall procure and maintain at its own expense, during
the term of this Agreement, workers' compensation insurance, providing coverage as
required by the California State Workers' Compensation Law.
(b) If any class of employees employed by AYSO REGION 1200 pursuant to
this Agreement is not protected by the California State Workers' Compensation Law,
AYSO REGION 1200 shall provide adequate insurance for the protection of such
employees to the satisfaction of the City.
Section 19 LIABILITY INSURANCE
AYSO REGION 1200 shall procure and maintain through the entire Term of this
Agreement errors and omissions, professional liability, or directors and officers insurance
in an amount deemed acceptable by the City Manager.
Section 20 ERRORS AND OMISSIONS
AYSO REGION 1200 shall procure and maintain through the entire Term of this
Agreement errors and omissions and professional liability insurance in an amount
acceptable by the City Manager.
Section 21. ADDITIONAL NAMED INSURED
Notwithstanding any inconsistent statement in any required insurance policies or
any subsequent endorsements attached thereto, the protection offered by all policies,
except for Workers' Compensation, errors and omissions, professional liability or directors
and officers coverage, shall bear an endorsement whereby it is provided that, the City
and its officers, employees, servants, volunteers and agents and independent
contractors, including without limitation, the City Manager and City Attorney, are named
as additional insureds.
Section 22 WAIVER OF SUBROGATION RIGHTS
AYSO REGION 1200 shall require the carriers of all required insurance policies to
waive all rights of subrogation against the City and its officers, volunteers, employees,
contractors and subcontractors.
Section 23 PROOF OF INSURANCE COVERAGE
(a) AYSO REGION 1200 shall secure from a good and responsible company
or companies authorized to do insurance business in the State of California the policies
of insurance required by this Agreement and furnish to the City Clerk certificates of said
insurance on or before the commencement of the term of this Agreement.
(b) The certificates of insurance shall bear an endorsement whereby it is
provided that, in the event of cancellation or amendment of any required insurance policy
for any reason whatsoever, the City shall be notified by mail, postage prepaid, not less
than thirty (30) calendar days before the cancellation or amendment is effective.
(c) The certificates of insurance shall bear an endorsement whereby it is
provided that the respective insurance policy shall not be terminated or expire without first
providing (30) calendar days' written notice to the City of such termination or expiration.
(d) The certificates of insurance shall indicate that the respective insurance
policy will be maintained throughout the Term of this Agreement.
(e) Within thirty (30) calendar days of the execution of this Agreement, AYSO
REGION 1200 shall furnish certified copies of all required insurance policies and
endorsements.
Section 24 TERMINATION OR SUSPENSION
(a) This Agreement may be terminated based on a material breach of this
agreement by either Party; provided that such Party provides to the other Party at least
thirty (30) calendar days' written notice of such material breach and intent to terminate.
(b) In the event of a notice of material breach and intent to terminate of this
Agreement under this Section by either Party, the other Party shall have thirty days (30)
to cure such breach.
(c) The Party which may claim that a breach has occurred shall give written
notice of breach to the Party in breach, specifying the alleged breach. Delay in giving
such notice shall not constitute a waiver of any breach nor shall it change the time of
breach; provided, however, the injured Party shall have no right to exercise any remedy
for a breach hereunder without delivering the written default notice, as specified herein.
(d) Any failure or delay by a Party in asserting any of its rights or remedies as
to any breach shall not operate as a waiver of any default or of any rights or remedies
associated with a breach.
(e) If a default of any Party to this Agreement remains uncured for more than
thirty (30) calendar days following written notice, as provided above, a "breach" shall be
deemed to have occurred. In the event of a breach, the injured Party shall be entitled to
seek any appropriate remedy for damages by initiating legal proceedings
Section 25 TIME OF THE ESSENSE
Time is of the essence in the performance of this Agreement.
Section 26 INDEMNIFICATION
(a) AYSO REGION 1200 shall defend, indemnify and hold harmless the City,
its officers, employees, representatives and agents,from and against those actions, suits,
proceedings, claims, demands, losses, costs and expenses, including legal costs and
attorneys' fees, for any personal injuries, deaths, property damage (including property
owned by the City)which may arise out of AYSO REGION 1200's negligent or intentional
performance of the services described in this Agreement, unless such losses or damages
are proven to be caused by the City's own negligence or that of its officers or employees.
(b) The City does not, and shall not; waive any rights that it may have against
AYSO REGION 1200 under this Section, because of the acceptance by the City, or the
deposit with the City, of any insurance policy or certificate required pursuant to this
Agreement. The hold harmless and indemnification provisions of this Section shall apply
regardless of whether or not said insurance policies are determined to be applicable to
the claim, demand, damage, liability, loss, cost or expense described herein.
(c) The City shall defend, indemnify and hold harmless AYSO, AYSO REGION
1200, its officers, employees, representatives and agents,from and against those actions,
suits, proceedings, claims, demands, losses, costs and expenses, including legal costs
and attorneys' fees, for any personal injuries, deaths, property damage (including
property owned by the City) which may arise out of the City's or authorized third party's
negligence or use of the Park.
Section 27 REPORTS
AYSO REGION 1200 shall prepare and submit to the City Manager or his or her
designee performance of the services reports concerning AYSO REGION 1200's
programs and operation updates related to the Park on a quarterly basis commencing 3
as well as it's annual Regional Budget Report annually within three months after the
signing date of this document.
Section 28 RECORDS
(a) AYSO REGION 1200 shall keep such books and records as shall be
necessary to perform the services required by this Agreement and enable the City
Manager or his or her designee to evaluate the cost and the performance of such
services.
(b) Books and records pertaining to costs shall be kept and prepared in
accordance with generally accepted accounting principles.
(c) The City Manager or his or her designee shall have full and free access to
such books and records at all reasonable times, including the right to inspect, copy, audit,
and make records and transcripts from such records.
(d) Records and supporting documents pertaining to the use of funds paid to
service provider hereunder shall be retained by AYSO REGION 1200 and made available
to the City Manager or his or her designee for purposes of performing an audit for a period
of five (5) years from the date of termination of this Agreement.
Section 29 OWNERSHIP OF DOCUMENTS
(a) Upon completion of any document or report required to be provided by
AYSO REGION 1200 in the course of performing any of the services described in this
Agreement, or upon earlier termination of this Agreement, all completed original
documents and/or reports and any designs, drawings, calculations, diskettes, computer
files, notes, and other related materials prepared or produced in connection with such
documents or reports shall become the sole property of the City and may be used and/or
reused on any other project by the City without the permission of AYSO REGION 1200.
(b) All computer files produced in connection with the services described in this
Agreement shall be provided to the City in a form and format that is compatible with the
City's existing computer equipment and software.
Section 30 CONFIDENTIALITY
(a) Any and all documents and information obtained from the City or prepared
by AYSO REGION 1200 for the City shall be kept strictly confidential unless otherwise
provided by law.
(b) The drawings, specifications, reports, records, documents and other
materials prepared by AYSO REGION 1200 in the performance of services under this
Agreement shall not be released publicly without the prior written approval of the City
Manager or as required by law.
(c) AYSO REGION 1200 shall not disclose to any other entity or person any
information regarding the activities of the City, except as required by law or as authorized
by the City.
Section 31 PRINCIPAL REPRESENTATIVES
(a) The AYSO REGION 1200 Regional Commissioner and AYSO Area 1H
Director are designated as the principal representatives of AYSO REGION 1200 for
purposes of communicating with the City on any matter associated with the performance
of the services set forth in this Agreement.
(b) The City Manager or his or her designee shall be the principal
representative of the City for purposes of communicating with AYSO REGION 1200 on
any matter associated with the performance of the services set forth in this Agreement.
(c) Either party may designate another individual as its principal representative
by giving written notice of such designation to the other party,
(d) It is expressly understood that the experience, knowledge, capability and
reputation of the foregoing principals shall be responsible during the Term of this
Agreement for directing all activities of AYSO REGION 1200 and devoting sufficient time
to personally supervise the services hereunder.
Section 32 MODIFICATIONS AND AMENDMENTS
This Agreement may be modified or amended only by a written instrument signed
by both Parties.
Section 33 ENTIRE AGREEMENT
(a) This Agreement supersedes any and all other agreements, either oral or
written, between the City and AYSO REGION 1200 with respect to the subject matter of
this Agreement.
(b) This Agreement contains all of the covenants and agreements between the
Parties with respect to the subject matter of this Agreement, and each Party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements have been made by or on behalf of any Party except those covenants and
agreements embodied in this Agreement.
(c) No agreement, statement, or promise not contained in this Agreement shall
be valid or binding.
Section 34 AMBIGUITIES
This Agreement is in all respects intended by each Party hereto to be deemed and
construed to have been jointly prepared by the Parties and the Parties hereby expressly
agree that any uncertainty or ambiguity existing herein shall not be interpreted against
either of them. Except as expressly limited by this paragraph, all of the applicable rules
of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity
of this Agreement.
Section 35 NOTICES
(a) Any notice to be provided pursuant to this Agreement shall be in writing,
and all such notices shall be delivered by personal service or by deposit in the United
States mail, certified or registered, return receipt requested, with postage prepaid, and
addressed to the Parties as follows:
To AYSO REGION 1200:
To the City: Attention: City Manager
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Telephone No. 760-770-0387
Facsimile No. 760-770-0399
With a copy to: Attention: City Attorney
Burke, Williams, & Sorensen, LLP
1600 Iowa Avenue, Suite 250
Riverside, CA 92507-7426
(b) Notices, payments and other documents shall be deemed delivered upon
receipt by personal service or as of the second (2nd)day after deposit in the United States
mail.
Section 36 NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES
No officer or employee of the City shall be personally liable to AYSO REGION
1200, or any successor in interest, in the event of any default or breach by the City or for
any amount which may become due to AYSO REGION 1200 or to its successor, or for
any breach of any obligation of the terms of this Agreement. No volunteer, officer or
employee of AYSO,AYSO REGION 1200 shall be personally liable City, or any successor
in interest, in the event of any default or breach by AYSO, AYSO REGION 1200 or for
any amount which may become due to City or to its successor, or for any breach of any
obligation of the terms of this Agreement.
Section 37 REVIEW BY ATTORNEYS
Each Party hereto has had its attorneys review this Agreement and all related
documents. Each Party hereto has consulted with its attorneys and has negotiated the
terms of this Agreement based on such consultation.
Section 38 WAIVER
(a) No waiver shall be binding, unless executed in writing by the Party making
the waiver.
(b) No waiver of any provision of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision.
(c) Failure of either Party to enforce any provision of this Agreement shall not
constitute a waiver of the right to compel enforcement of the remaining provisions of this
Agreement.
Section 39 ASSIGNMENT
(a) The experience, knowledge, capability and reputation of AYSO REGION
1200, its principals and employees were a substantial inducement for the City to enter
into this Agreement.
(b) This Agreement shall not be assigned by either Party without prior written
consent of the other Party.
Section 40 CARE OF WORK
The performance of services by AYSO REGION 1200 shall not relieve AYSO
REGION 1200 from any obligation to correct any incomplete, inaccurate or defective work
at no further cost to the City, when such inaccuracies are due to the negligence of AYSO
REGION 1200.
Section 41 CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement are provided for
identification purposes only and shall not be interpreted to limit or define the content of
the provisions described under the respective caption or heading.
Section 42 SUCCESSORS, HEIRS and ASSIGNS
Except as otherwise expressly provided herein, this Agreement shall be binding
upon the successors, endorsees, assigns, heirs, and personal representatives of each of
the Parties to this Agreement and, likewise, shall inure to the benefit of the successors,
endorsees, assigns, heirs, and personal representatives of each of the Parties.
Section 43 GENDER
In this Agreement, unless the context clearly requires otherwise, the masculine,
feminine and neuter genders and the singular and the plural shall include one another.
Section 44 SEVERABILITY
If any one or more of the sentences, clauses, paragraphs or sections contained
herein is declared invalid, void or unenforceable by a court of competent jurisdiction, the
same shall be deemed severable from the remainder of this Agreement and shall not
affect, impair or invalidate any of the remaining sentences, clauses, paragraphs or
sections contained herein.
Section 45 GOVERNING LAW
The validity of this Agreement and any of its terms or provisions, as well as the
rights and duties of the Parties under this Agreement, shall be construed pursuant to and
in accordance with California law.
Section 46 CUMULATIVE REMEDIES
Except with respect to rights and remedies expressly declared to be exclusive in
this Agreement, the rights and remedies of the Parties are cumulative and the exercise
by either Party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same or different times, of any other rights or remedies for the same default
of any other default by the other Party.
Section 47 VENUE
All proceedings involving disputes over the terms, provisions, covenants or
conditions contained in this Agreement and all proceedings involving any enforcement
action related to this Agreement shall be initiated and conducted in the applicable court
or forum in Riverside County, California.
Section 48 ATTORNEY'S FEES
If any action, suit or proceeding is brought for the enforcement of, or the declaration
of any right or obligation pursuant to this Agreement or as a result of any alleged breach
of any provision of this Agreement, the prevailing Party in such suit or proceeding shall
be entitled to recover its costs and expenses, including reasonable attorney's fees, from
the losing Party, and any judgment or decree rendered in such a proceeding shall include
an award thereof.
Section 49 EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the City, until signed by the authorized
representative(s) of AYSO REGION 1200, and approved by the City Council, approved
as to form by the City Attorney, and executed by the City Manager.
[THIS PORTION IS INTENTIONALLY LEFT BLANK]
Section 50 REPRESENTATIONS OF PARTIES AND PERSONS
EXECUTING AGREEMENT
(a) Each Party to this Agreement hereby represents that all necessary and
appropriate actions of its governing body have been taken to make this Agreement a
binding obligation of each of the Parties hereto.
(b) The persons executing this Agreement warrant that they are duly authorized
to execute this Agreement on behalf of and bind the Parties each purports to represent.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to
be executed as of the dates written below.
City of Cathedral City: American Youth Soccer
Organization, Region 1200:
By: - By: an-, r; �����
Charlie McClendon, City Manager name, Executive Director or
equivalent title] 11 .[41
J'i?t L • Z-k)C C 1
ATTEST: By:
[Name, President or equivalent
tile] o�/•v E to Gs 0.--e c , Rt� c• $t ste-.
Th
By: By:
`racey M n= inez, City CI=r [name, Chief Financial Officer
or Treasurer]
APPROVED AS TO FORM:
By: .4
Eric S. Vail, City Attorney