Loading...
HomeMy WebLinkAboutAGENDA REPORT 2002 0821 CC REG ITEM 10AITEM 10• A • CITE OF MOORPARK, CALIFORNIA City Council ;Meeting of ACTION:$ roved W arn&rVLrneJ1- MOORPARK CITY COUNCIL -�o r, �J�e�s ia "Ale in 7r7l AGENDA REPORT Q, F turn Gon5LCl2.Y' � Y'E.'G1,L.kG'c( fie: e r r►on — P►p b TO: The Honorable City Council 0V,1 FROM: John Hartnett, Recreation Superintendent DATE: August 7, 2002 (CC Meeting of August 21, 2002) SUBJECT: Consider American Youth Soccer Association (AYSO) Use Agreement DISCUSSION In 1997, the City Council approved use agreements with the major youth sports organizations in Moorpark. The agreements were for a term of five years, and among other things, they identified parks and park amenities, use dates, site and amenity improvements, and maintenance responsibilities granted to each organization. The use fee charged to each group was $1.00 per year. Moorpark Girls Softball Association and AYSO also pay for the use of the Concession facility at AVCP, as will Packer Football this Fall, from the proceeds of their snack sales. The AYSO agreement is one of the three due to expire this year (Moorpark Basketball Association ends in September 2002 and Moorpark Soccer Club ends in November 2002). Staff has drafted a new agreement for AYSO based on the previous agreement and provided it to them for review and comment. AYSO has indicated that the provisions are acceptable with the exception of and Hold Harmless clause, which restrictive and should be modified. requesting that room rental fees fo, discounted during the year. They use t 20 times per year for board meetings, and clinics. of the new agreement the Indemnification they feel is too In addition, AYSO is AVRC be waived or he AVRC approximately registration sign -ups The agreement addresses the following conditions: t ; " Honorable City Council August 21, 2002 Page 2 If the proposed agreement is approved, AYSO will have use of the park incorporating the area between the baseball diamonds east to the football field and the existing Concession facility and storage room between August 1 through December 31. Additional soccer fields in the undeveloped area east of the football field will be available to AYSO after June 2003. The use of those fields will be addressed at that time. AYSO is also granted use of certain open field areas for post season play, from Monday to Friday, between January 1 through February 29, and Monday to Friday for the month of August for its summer soccer camp. AYSO may also, with advance City approval, use fields a maximum of four separate weekends for post season play. Use of the facilities will be $1 per year, each year the agreement is in effect. AYSO will also have use of the Concession facility from August 1 through December 31 and pay a use fee of $1,200 per year, each year the agreement is in effect. Additionally, AYSO is granted use of certain fields for its annual Apricot Jam Soccer Tournament. Use is limited to Saturday and Sunday only, for a period of two weekends in April, the second weekend being reserved in the event of rain. AYSO will pay all direct costs, including additional staffing, associated with the tournament. As with the previous agreement, AYSO is authorized to place two 40 -yard cubic storage containers near the fields, and perform certain field and equipment maintenance work with the City's approval. However, once the new Concession /Restroom facility adjacent to the football field is completed, additional storage space may be available. At the City's sole discretion, AYSO will relocate its property into building space made available and remove its storage bins from the premises. SUMMARY As stated, the agreement is consistent with AYSO's previous use agreement and agreements the City has with other youth sports groups. The dates, fees, and maintenance requirements have not changed. Additions include a provision that prohibits the use of paint or herbicides for marking game lines that will kill grass and a requirement that anyone driving a vehicle on fields must be twenty -one Honorable City Council August 21, 2002 Page 3 years or older. AYSO agrees to insure and indemnify the City, refrain from making any improvements without City authorization, maintain the improvements they are authorized to construct, assist with trash collection, and acknowledge that the City retains the right to use the parks and facilities granted for use under the agreement, with prior notice by the City. As noted previously, AYSO is requesting that the Indemnification and Hold Harmless clause be modified so that the City bears more liability. Also, AYSO is requesting rental fees for AVRC be waived or discounted during the year for approximately 20 meetings. Staff does not recommend approval of these two requests. The Indemnification and Hold Harmless clause language is the same for all sports agreements and protects the City from claims arising from negligence of others unless it is due to the sole negligence of the City. It is also the position of the City's Insurance Authority that the Indemnification and Hold Harmless clause remain as is. This clause is contained in all of the City's youth sports agreements, all tournament rentals (including Kiwanis), and park and facility rentals. In the case of reduced or waived rental fees, the City already offers a reduced rental fee for all Moorpark non- profit groups including AYSO. If AYSO's request is approved, this would set a precedent for all other non- profit organizations. The City would have to consider future requests for waived fees from other sports groups as well as organizations such as Church Groups, Homeowners Associations, etc. This could become a significant contribution by the City. It should be kept in mind that when the Recreation Division offers its own programs and events, the direct cost for those activities, which includes facilities, is figured into the budget and included in the fees paid by the participant. Therefore, it only makes sense that other organizations should have to follow the same guidelines as the City by accounting for facility costs in their programs, as well, and passing that cost onto the participant. This approval could also displace paying rentals by tying up facility use and reduce staff's ability to rent the AVRC to others, which will, in turn, reduce potential revenue. Honorable City Council August 21, 2002 Page 4 The proposed agreement is attached to this Agenda Report. The Council is being asked to approve the agreement for American Youth Soccer Organization. STAFF RECOMMENDATION Approve five -year use agreement with American Youth Soccer Organization as submitted subject to final language approved by City Manager and City Attorney and authorize the City Manager to execute the agreement on behalf of the City. Attachments: American Youth Soccer Organization Agreement '. *, A �-,r;, L �.J ..+� -e0 AGREEMENT BETWEEN THE CITY OF MOORPARK AND AMERICAN YOUTH SOCCER ORGANIZATION, REGION 363 THIS USE AGREEMENT (hereinafter "Agreement ") is made and entered into as of this day of , 2002 by and between the CITY OF MOORPARK (hereinafter "City ") and American Youth Soccer Association, Region 363, a Non - Profit Corporation (hereinafter "AYSO "). THE PARTIES AGREE THAT: Section 1. PREMISES City, in consideration of the fees to be paid and of the indemnifications, covenants, and agreements agreed to herein, hereby grants to AYSO, and AYSO hereby accepts from City, the use of certain real property and associated facilities and equipment including but not limited to the park area between the baseball diamonds east to the football field (hereinafter "Park Area ") and the snack bar and its storage room which is accessible from the food service area (hereinafter "Snack Bar ") at Arroyo Vista Community Park (hereinafter "AVCP ") described in Exhibit "A" attached hereto and by this reference incorporated herein, together with any and all improvements thereon (all of which are hereinafter referred to as the "Premises "). Section 2. TERM The term of this Agreement shall be for five years, commencing on August 1, 2002, and ending on July 31, 2007, provided however, that City's obligations hereunder shall be contingent upon AYSO's payment in full of all use and related fees and fulfillment of all obligations as set forth in this Agreement. This Agreement may be terminated by either party with or without cause by providing written notice no less than thirty (30) days in advance of such termination. Section 3. USE FEES AYSO further agrees to pay the City at time of execution of Agreement, in total, annual use fees as follows: A. One Dollar ($1.00) for the period of August 1, 2002, through July 31, 2003, and for every year thereafter on August 1 through the term of Agreement for the use of Park Area; and B. AYSO agrees to pay an annual use fee to City of twelve hundred dollars - 1 - ($1,200) for use of the Snack Bar at Premises for the Fall Season each year this Agreement remains in effect. Said fee shall be paid to City by Augustl.City agrees that fees include AYSO's use of water, electricity and pest control specifically associated with the operation of the snack bar as authorized by this Agreement Additionally, AYSO agrees to pay City for direct costs City incurs in association with the AYSO's annual Apricot Jam tournament and Volunteer Recognition Picnic including but not limited to field lighting and City staff dedicated to said activities. City agrees not to charge AYSO for other typical rental fees. Section 4. ADJUSTMENTS OF USE FEES For the year August 1, 2002, and for each year this Agreement is in effect, the City may adjust the Use Fees, referenced in Section 3.A. on or before the beginning of the new year by giving AYSO written notice prior to March 1. If no such notification is given, the Use Fees for the next year shall be the same amount as the prior year. The Use Fee provided for in Section 3.B. shall not be adjusted during the five (5) year Term of this Agreement. Section 5. USE The Premises shall be used for the following specified purposes only and shall not be used for any other purpose without the prior written consent of the City: A. The field portion of Premises shall be used for AYSO's authorized games, practices, training sessions and Volunteer Appreciation Picnic for coaches and referees tied specially to official season, held during the months of August through December (Fall Season). A schedule of games and practices shall be furnished to the Director of Community Services for the City's written approval prior to August 15 of each year, which approval shall not be unreasonably withheld.. AYSO is also granted use of certain open field areas within Premise for region and area post season and All Star play beginning December 1 and concluding February 29, each year. Said use covers Monday through Friday. Post season does not include use of the snack bar. A written schedule of requested days and times for post season and All Star use shall be furnished by AYSO to the City for the City's approval prior to December 1 of each year. In addition, with prior written approval from City, AYSO may use certain open field areas within Premise on a maximum of four (4) separate weekends for post season tournament play. Weekend dates for post season play shall be approved by the City in advance. AYSO is granted use of certain fields on Premise, for its - 2 - Annual Apricot Jam Soccer Tournament in April. This limited use includes Saturday and Sunday only, and a period of no more than two (2) weekends, the second weekend being reserved in the event of rain. A schedule of use shall be furnished to the City for the City's written approval prior to January 1 of each year. Additionally, AYSO may use the snack bar with the approval of the City and the voluntary agreement of Moorpark Girls Softball Association to relinquish its use. AYSO is also granted use of certain fields on Premise, for its annual summer soccer camp in July or August. Use includes Monday through Friday only, and does not include the use of the snack bar. A schedule of said instruction dates shall be furnished to the City for written approval prior to March 1 of each year. B. The Snack Bar shall be used for AYSO's authorized games and practices for the Fall Season. C. AYSO agrees to remove its property from the Snack Bar one week after its last game of each season and shall not begin storage of its property until the first day of each Season. AYSO shall use storage room to store food and drink supplies only. AYSO shall be provided with a key to the Snack Bar prior to the start of the Fall season and shall be responsible for securing it . Said key(s) shall not be duplicated. Upon vacating the Snack Bar, AYSO shall return the key(s) to the City. AYSO shall be required to vacate the storage room adjacent to the snack bar upon thirty (30) days written notice from the City if they are needed for City purposes. D. At all times, City retains the right to use Premises at its discretion for City sponsored and co- sponsored events upon no less than thirty (30) days written notice to AYSO. During the Fall season and April tournament period, the general public shall have access to and use of said Premises at a time of day and or on a day that is not included in the schedule submitted by AYSO in writing and approved in writing by the City. AYSO shall not have priority use of Premises outside of the approved schedule. At all times, the City also reserves the right to restrict use of certain fields on Premise to manage and protect the conditions of the turf. Any requests for additional use not authorized in this agreement shall be made in writing to City. E. The sale and consumption of food and beverages shall be at the discretion of AYSO with the exception that no alcoholic beverages shall be sold or consumed on Premises. AYSO shall obtain all required health and other permits for the preparation and sale of food and beverages. - 3 - �� F. City agrees to provide a location, mutually agreeable to City and AYSO, for AYSO's two 40 -yard cubic storage bins. AYSO agrees to locate, at its sole cost, its bins in an area designated by City. Storage bins shall be used for storage of AYSO soccer equipment and supplies only. AYSO shall be required, at its sole cost, to remove or relocate storage bins upon thirty (30) days written notice from City that the area is needed for City purposes. An additional Restroom/Concession facility will be constructed at AVCP sometime in 2002. Upon completion, additional storage space may be available. At the City's sole discretion, AYSO will relocate its property into building space made available and remove its storage bins from Premises at its sole expense. G. City agrees to allow AYSO to access the field portion of Premises with no more than two utility vehicles for the specific purpose of setting up and taking down soccer equipment only. AYSO agrees not to use vehicles on the field whenever the ground is wet, for whatever reason, without obtaining City's written approval. AYSO also agrees that vehicles it uses for this purpose shall not exceed a gross vehicle weight (GVW) of 5,400 pounds. Vehicles are only to be driven by an adult twenty one years and older. Section 6. SIGNS AYSO agrees not to permit the construction or placement of any sign, signboard or other form of outdoor advertising on the Premises without the prior written consent of the City. In the event of a violation of this provision by AYSO or any one claiming under AYSO, AYSO hereby authorizes City as AYSO's Agent, to enter the Premises and to remove and dispose of any such sign, signboard or other advertising, and to charge the cost and expense of any such removal and disposal to AYSO who agrees to pay the same upon demand. This provision does not exclude the use of identification banners for individual teams and sponsors, which may be displayed during games and shall be removed following the end of each game. Section 7. INDEMNIFICATION AND HOLD HARMLESS AYSO hereby agrees to hold harmless and indemnify City, its officers, agents, and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and /or liability arising or growing out of loss or damage to property, including City's own personal property, or injury to or death of persons, including employees of City, resulting in any manner whatsoever directly or indirectly, by reason of this Agreement or the use of the Premises by AYSO or any - 4 - person claiming use under or through AYSO unless such loss, damage, injury, or death is due to the sole negligence of the City. AYSO shall also hold the City harmless from all costs and expenses, including costs of investigation arising out of or incurred in the defense of any claim, proceeding, or action brought for injury to persons or damage to property, resulting from or associated with the use of said Premises under this Agreement and shall further save and hold harmless the City from any and all orders, judgements, and decrees which may be entered in any and all such suit or actions. AYSO and all others using said Premises under this Agreement hereby waive any and all claims against the City of damage to persons or property in, or about said Premises. The City does not, and shall not, waive any rights that it may have against AYSO by reason of 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. Said hold harmless and indemnification provision 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 in this Section. The provisions of this Section 7 shall survive the expiration or termination of this Agreement. Section 8. LIABILITY INSURANCE As a condition precedent of the effectiveness of this Agreement, AYSO shall procure, and thereafter maintain in full force and effect at AYSO's sole cost and expense, a public liability insurance policy written with a company acceptable to City and authorized to do business in the State of California. Such policy shall provide for a minimum coverage of One Million Dollars ($1,000,000.00) for bodily injury or death of any person or persons in any one occurrence, and Five Hundred Thousand Dollars ($500,000.00) for loss by damage or injury to property in any one occurrence and shall include automobile coverage. The policy shall contain a provision providing for a broad form of contractual liability, including Product Liability coverage if food and beverages are dispensed on Premises. The policy or policies shall be written on an occurrence basis. The policy shall name AYSO as the insured and the City as an additional insured. The policy shall also provide that the City shall be notified in writing, at least thirty (30) days prior to any termination, amendment cancellation or expiration thereof. AYSO shall furnish City evidence of all insurance policies required by this Agreement in the form of a Certificate of Insurance. Section 9. CASUALTY INSURANCE The parties each specifically acknowledge that City shall not be obligated to keep the Premises insured against fire, or any other insurable risk. AYSO hereby and forever waives all right to claim or recover damages from City in any amount as the result of any damage to the Premises by fire, earthquake, flooding, storm or any other cause. - 5 - Section 10. IMPROVEMENTS AYSO shall not make any alterations, additions, or improvements upon the Premises without the prior written consent of the City. All alterations, additions and improvements shall be done in a good and workmanlike manner and diligently prosecuted to completion, and shall be performed and maintained in strict accord with all Federal, State, County, and local laws, ordinances, codes and standards relating thereto. Performance of work shall be subject to City monitoring and inspection. At City's sole discretion, work may be stopped if it does not conform to City specifications and standards. Unless otherwise expressly agreed to in writing by the City, any alterations, additions and improvements shall remain on and be surrendered with the Premises upon the expiration or termination of this Agreement. AYSO shall timely pay all costs associated with any and all improvements, and shall keep the Premises free and clear of all mechanics liens. AYSO agrees to and shall indemnify, defend and save City free and harmless against all liability, loss, damage, costs, attorney's fees and other expenses of any nature resulting from any AYSO alterations, additions or improvements to the Premises. At such time as AYSO vacates Premises, all improvements to Premises not already owned by City shall become the property of the City unless otherwise authorized by City in writing. Section 11. FLAMMABLE MATERIAL, WASTE AND NUISANCES AYSO agrees that it will not place or store any flammable materials on the Premises, that it will not commit any waste or damage, nor suffer any to be done. AYSO also specifically agrees that it will not allow others to take such actions on the Premises. AYSO further agrees that it will keep the Premises clean, free from weeds, rubbish and debris and in a condition satisfactory to City. AYSO shall also provide adequate controls for dust, odors, noise which may emanate from the Premises or from AYSO's activities on adjacent property and take appropriate steps necessary to prevent dust contamination of City's facilities located on, near or adjacent to the Premises. AYSO agrees to take preventative action to eliminate such dust, odor, noise or any other nuisance which may disturb the adjacent or nearby community and agrees to be responsible for and to assume all liability for such dust, odor, noise or other nuisance disturbances. AYSO also agrees that it shall not use amplified sound or field lighting on Premises for any reason, without the prior written consent of City. Notwithstanding the above, AYSO shall not install, operate or maintain, or cause, or permit to be installed, operated or maintained any electrically charged fence on the Premises. - 6 - Sri �► `. Section 12. PESTICIDES AND HERBICIDES AYSO agrees that prior to any application of either pesticides or herbicides, it shall receive written consent from City, and further any pesticide or herbicide applications on the Premises shall be made in accordance with all Federal, State, County and local laws. AYSO further agrees to dispose of any pesticides, herbicides or any other toxic substances which are declared to be either a health or environmental hazard in such a manner as prescribed by law. This shall include, but shall not be limited to, contaminated containers, clothing, equipment or any other contaminated material. Section 13. STORAGE TANKS Notwithstanding anything to the contrary set forth in this Agreement, AYSO shall not have the right to install underground or above ground storage tanks, as defined by any and all applicable laws or regulations, without the prior written consent of the City. Section 14. HAZARDOUS MATERIALS INDEMNITY AYSO hereby agrees to indemnify and hold harmless City, and its respective officers, employees, and agents, from and against any and all claims, actions, losses, liabilities, costs and expenses: (a) including, without limitation, all foreseeable and all unforeseeable consequential damages, directly or indirectly arising out of the use, generation, storage or disposal of Hazardous Material on the Premises by AYSO; and (b) including, without limitation, the cost of any required or necessary repair, cleanup, or detoxification and the preparation of any closure or other required plans, to the full extent that such action is attributable, directly or indirectly, to the presence, or use, generation, storage, release, threatened release, or disposal of Hazardous Materials on the Premises by AYSO. As used in this Section, Hazardous Materials means any flammable explosives, radioactive materials, asbestos, PCBs, hazardous water, toxic substances of related materials, including, without limitation, substances, defined as "hazardous substances ", "hazardous materials ", or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 USC, Section 9601, et seq.; the Resource Conservation and Recovery Act, 42 USC, Section 6901, et seq.; the Toxic Substances Control Act, 15 USC, Section 2601, et seq.; any other Federal, State or local law applicable to the Premises; and in the rules and regulations adopted or promulgated under or pursuant to any of said laws. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. Section 15. UTILITIES AYSO agrees to pay a pro rata share of all charges and assessments for or in connection with electricity, water, and sewer and any other utilities which may be - 7 - furnished to or used upon the Premises by AYSO during the period covered by this Agreement with exception of those addressed in Section 3 of this Agreement. It is further agreed that in the event AYSO shall fail to pay the above mentioned charges when due, City shall have the right to pay the same on demand, together with interest thereon at the maximum rate allowed by law and to charge the cost and expense to AYSO who agree to pay the same upon demand. City shall bill AYSO for said charges which shall be in addition to Use Fee identified in Section 3. Section 16. MAINTENANCE Except as specifically provided for in the Agreement, all maintenance of, and repairs to Premises shall be done at City's sole discretion and shall be performed by City force account or by City's authorized agent unless approved by City in writing. All maintenance and repair authorized to be performed by AYSO shall adhere to City specifications and standards. All improvements shall meet City and other applicable codes, regulations, and standards including but not limited to building and zoning codes. A. During the period of August 1 through December 31 and agreed upon period In April, AYSO shall be responsible to perform the following maintenance on Premises (Park Area and Snack Bar): 1. Mark soccer field lines using only white, water -based acrylic paint, manufactured specifically for marking lines on sports turf and athletic fields. Athletic field paint should not contain calcium carbonate, vinyl copolymers, herbicides, or pesticides. 2. Pickup trash on and around Premises and provide for additional trash containers. On each day of use following the last scheduled game or practice, if trash containers are full, empty contents into trash dumpster located at AVCP. 3. Throughout the term of this Agreement, maintain storage bin in good working order, repainting when necessary. Graffiti shall be removed within seventy -two (72) hours of City's notification to do so. In the event of violation of this provision, AYSO hereby authorizes City, as AYSO's agent, to remove graffiti and to charge the cost and expense of any such removal to AYSO who agrees to pay the same upon demand. 4. Maintain and clean Snack Bar including counters, sinks, floors, and walls after each use; remove and dispose of all trash in and around Snack Bar to trash bins provided by City. 5. Notify City, prior to March 15, regarding the number of goals needed. - 8 - All available goals will be installed for the Fall season. B. During the period of August 1 through December 31 and April 1 through June 30, City shall be responsible to perform the following: Install and secure soccer goals for Fall season and April tournament. City shall attempt to vary the placement of the goals from season to season to maintain the integrity of the turf and shall consult with AYSO to identify mutually agreeable locations prior to installation 2. Irrigate, and mow turf areas which comprise the soccer fields contained within Premises at City's expense. During AYSO's authorized use period for the Snack Bar, City shall, at its expense, perform routine maintenance for normal wear and tear and arrange for and schedule pest control services for, in and around the facility. City shall not be obligated to repair, replace or maintain the Premises in any manner throughout the term of this Agreement. City shall not be obligated to perform any precautionary or preventative measures with respect to the Premises, including, but not limited to drainage and flood control measures. Should City perform any of the foregoing, such services shall be at the sole discretion of City, and the performance of such services shall not be construed as an obligation or warranty by City of the future or ongoing performance of such services. Section 17. ENTRY BY CITY City may enter upon the Premises at all reasonable times to examine the condition thereof, and for the purpose of providing maintenance and making such repairs as City desires to make. Section 18. GOVERNING LAW AYSO agrees that in the exercise of its rights under this Agreement, AYSO shall comply with all applicable Federal, State, County and City laws and regulations in connection with its use of the Premises. The existence, validity, construction, operation and effect of this Agreement and all of its terms and provisions shall be determined in accordance with the laws of the State of California. Section 19. DISCRIMINATION AYSO agrees not to discriminate against any person or class of persons by reason of - 9 - race, color, creed, or national origin in the use of the Premises. Section 20. ASSIGNMENT AND SUBLETTING AYSO shall not assign this Agreement, or any interest therein, and shall not assign use of the Premises or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person (the agents and servants of AYSO excepted) to occupy or use the Premises, or any portion thereof, without the prior written consent of City. A consent to one assignment, subletting, occupation, or use by another person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation, or use by another person. This Agreement shall not, nor shall any interest therein, be assignable, as to the interest of AYSO, py operation of law, without the written consent of City. Any assignment or subletting without such consent shall be void, and shall, at the option of the City, terminate this Agreement. No legal title or interest in Premises is created or vested in AYSO by this Agreement. Section 21. INSOLVENCY OR BANKRUPTCY If AYSO shall be adjudged bankrupt or insolvent, this Agreement shall thereupon immediately terminate and the same shall not be assignable by any process of law, or be treated as an asset of the AYSO under such adjudication, nor shall it pass under the control of any trustee or assignee by virtue of any process in bankruptcy or insolvency, or by execution or assignment for the benefit of creditors. If any such event occurs, this Agreement shall immediately become null and void and of no effect, and City may thereupon repossess said Premises and all rights of the AYSO thereupon shall cease and terminate. Section 22. DEFAULT OR BREACH Except as otherwise provided, at any time one party to this Agreement is in default or breach in the performance of any of the terms and conditions of this Agreement, the other party shall give written notice to remedy such default or breach. If default or breach is remedied within 30 days following such notice, then this Agreement shall continue in full force and effect. If such default or breach is not remedied within 30 days following such notice or if the nature of the default is such that it cannot reasonably be cured within 30 days, if AYSO fails to commence to cure within the 30 day period, the other party may, at its option, terminate this Agreement. Such termination shall not be considered a waiver of damages or other remedies available to either party because of such default or breach. Each term and condition of this Agreement shall be deemed to be both a covenant and a condition. Section 23. INTERPRETATION Should interpretation of this Agreement, or any portion thereof, be necessary, it is - 10 - deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. Section 24. WAIVER A waiver by either party or any default or breach by the other party in the performance of any of the covenants, terms or conditions of this Agreement shall not constitute or be deemed a waiver of any subsequent or other default or breach. Section 25. ACQUIESCENCE No acquiescence, failure or neglect of any party hereto to insist on strict performance of any or all of the terms hereof in one instance shall be considered or constitute a waiver of the rights to insist upon strict performance of the terms hereof in any subsequent instance. Section 26. PARTIES BOUND AND BENEFITED The covenants and conditions herein contained shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally liable hereunder. Section 27. CONDEMNATION If the whole of the Premises should be taken by a public authority under the power of eminent domain, then the term of this Agreement shall cease on the day of possession by the public authority. If a part only of the Premises should be taken under eminent domain, AYSO shall have the right to either terminate this Agreement or to continue in possession of the remainder of the Premises. If AYSO remains in possession, all of the terms hereof shall continue in effect, with the fees payable being reduced proportionately for the balance of the Agreement term. Section 28. TIME Time is of the essence of this Agreement. Section 29. REMEDIES In case of the failure or refusal of AYSO to comply with and perform each and all of the terms and covenants on its part herein contained, this Agreement and all rights hereby given shall, at the option of City, cease and terminate, and City shall have the - 11 - right forthwith to remove AYSO's personal property from the Premises at the sole cost, expense and risk of AYSO, which cost. and expense AYSO agrees to pay to City upon demand, together with interest thereon at the maximum rate allowed by law from the date of expenditure by City. Section 30. NOTICES AND PAYMENTS All notices required under this Agreement including change of address shall be in writing, and all notices and payments shall be made as follows: A. All payments and notices to AYSO shall be given or mailed to the current AYSO Regional Commissioner. It is the responsibility of AYSO to notify City when there has been a change with regard to the individual serving as Regional Commissioner and to provide the City with name, address, and 24 -hour contact phone number of the new Commissioner: Moorpark AYSO C/O Thomas Bradford 13760 Donnybrook Lane Moorpark, CA 93021 Phone Number: 532 -1242 Mobile: 701 -2190 Work: 213 - 738 -5809 E -Mail: TomKathyBradford @aol.com B. All payments and notices to City shall be given or mailed to: City of Moorpark City Manager 799 Moorpark Avenue Moorpark, CA 93021 Section .31. PARTIAL INVALIDITY If any term, covenant, condition or provision of this Agreement is found by a Court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. Section 32. GENDER AND NUMBER For the purpose of this Agreement wherever the masculine or neuter form is used, the same shall include the masculine or feminine, and the singular number shall include the plural and the plural number shall include the singular, wherever the context so requires. - 12 - Section 33. PARAGRAPH HEADINGS Paragraph headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants and conditions of this Agreement. Section 34. MODIFICATION This Agreement may be terminated, extended or amended in writing by the mutual written consent of the parties hereto. Such amendments may be executed by the City Manager on behalf of the City. Section 35. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties, and supersedes all previous negotiations and understandings between the parties. There are no representations, warranties or commitments, oral or written, other than those expressly set forth herein. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representative as of the date first written above. City of Moorpark C Steven Kueny, City Manager Attest: :• Deborah Traffenstedt, City Clerk AYS O 0 Regional Commissioner - 13 - Arroyo jor, r I ,Cr,. ter Arroyo nta Terris Cour-rc, r'arFirc of 94 A P-,P,,OYO VISTA COMMUNITY FAKK UNDEVELOPED AREA OF PARK Imi FUTURE SNACK BAR - RESTROOM