HomeMy WebLinkAbout1992-463
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RESOLUTION NO. 92-463
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RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING
3 THE EXECUTION OF AN AGREEMENT WITH DON NOMURA, RELATING TO THE
USE OF FISCALINI FIELD.
4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
5 CITY OF SAN BERNARDINO AS FOLLOWS:
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7 to execute on behalf of said City an Agreement with Don
SECTION 1.
The Mayor is hereby authorized and directed
8 Nomura, relating to the use of Fiscalini Field, a copy of said
9 agreement is attached hereto, marked Exhibit "A" and
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incorporated herein by reference as fully as though set forth
at length.
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SECTION 2. The authorization to execute the above
13 referenced agreement is rescinded if the parties to the
14 agreement fail to execute it within sixty (60) days of the
15 passage of this resolution.
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I HEREBY CERTIFY that the foregoing resolution was duly
17 adopted by the Mayor and Common Council of the City of San
18 Bernardino at a
19 day of December
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21 / / /
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reQular
meeting thereof, held on the 7th
, 1992, by the following vote, to wit:
25 JFK:jj Resolution No.
26 November 9, 1992
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RESOLUTION RE: AUTHORIZING EXECUTION OF AN AGREEMENT
2 WITH DON NOMURA, RELATING TO THE USE OF FISCALINI FIELD.
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COUNCIL MEMBERS AYES NAYS ABSTAIN ABSENI'
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ESTRADA x
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REILLY "'"""'""--
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HERNANDEZ x
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MAUDSLEY x
8 MINOR
x
9 POPE-LUDLAM
x
10 MILLER
x
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12 ~"-C.l1 I (!JJ_,_~
13 RA EL CLARK, CITY CLERK
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The foregoing is hereby approved this d,~~W'\ day of
"'-<::,,~~~~" 1992.
, MAYOR
Bernardino
19 Approved as to form
20 and legal content:
21 James
city
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25 11/9/92
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Res ~2-46'i,
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A G R E E MEN T
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3 THIS AGREEMENT is executed at San Bernardino, California,
4 this ;:'}.:;:,<;:;,A day of-We~~\"\\\,,~'L , 19q~, by and
5 between the CITY OF SAN BERNARDINO, a Charter City
6 (hereinafter" City"), and Don Nomura (hereinafter "Lessee").
7 WIT N E SSE T H:
8 WHEREAS, the city Council of the city of San Bernardino
9 has the authority to enter into a Lease Agreement regarding
10 all or any portion of City-owned property devoted to park,
11 amusement or recreation purposes; and,
12 WHEREAS, Lessee has acquired a franchise to operate a
13 professional baseball team as a member of the California
14 League; and,
WHEREAS, it is the intention and desire of the parties
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16 hereto to enter into a Lease Agreement regarding the use of
17 Fiscalini Field, being a portion of the public park and
18 recreation area owned by the city of San Bernardino, for the
19 purpose of conducting and carrying on a professional baseball
20 franchise thereon and the operation of concession stand
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activities; and,
WHEREAS, CITY desires to contract with Lessee for Lessee
to operate the facility in accordance with the provisions
hereinafter contained and, the Lessee desires to contract with
the city for the privileges granted under said Lease as
hereinafter contained:
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1 NOW, THEREFORE, IT IS MUTUALLY AGREED as follows:
2 1. Premises. City, for and in consideration of the
3 covenants, conditions, agreements and stipulations herein set
4 forth, does hereby grant Lessee the right to utilize Fiscalini
5 Field, as shown on Exhibit "A" attached hereto and by this
6 reference made a part hereof, hereinafter referred to as
7 "facility".
8 2 . Lease Granted. This Agreement is made for the
9 purpose of granting Lessee the nonexclusive use of the
10 facility. No professional or semiprofessional baseball team
11 shall be permitted to conduct games at facility during the
12 term of this Lease except with the express written consent of
13 Lessee. Lessee is also entitled hereunder to sufficient space
14 for the operation of a business office, said office to be
15 provided by City.
16 3. Term of Lease. The aforementioned lease shall
17 commence on March 1, 1993, and terminate on September 15,
18 1993.
19 4.
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Use of Facilitv bv Lessee for Non-Baseball Related
Activities.
(a) City agrees that the facility shall be made
available to Lessee not to exceed 15 days during the term of
this agreement for non-baseball related activities. The
schedule, events and sale of alcohol at such events shall be
subject to the approval of the Director of Parks, Recreation
and Community Services Department. Approval shall not be
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withheld unreasonably. Request for such an approval shall
be made thirty days in advance of any such activity.
(b) Notwithstanding any other terms of this agreement,
Lessee shall bear all costs of the non-baseball activities in
the manner as set forth in section 26 paragraphs a and c and
section 28 of agreement. Said costs shall include the cost of
utilities for the event.
(c) In addition to any other sums set forth herein,
Lessee shall pay to the city 5% of the gross receipts received
by Lessee for each such non-baseball activity.
5. Payment bv Lessee to city.
(a) Guaranteed Minimum Annual Fee. Lessee agrees to
pay to the city as fees for the lease herein granted for the
use of Fiscalini Field a minimum annual fee of $40,000 for the
use of the facility.
(1) Payment. All payments required hereunder are
due and owing as of April 1, 1993. Said payment shall be
made in equal monthly installments for six months
beginning on April 1, 1993. Failure by Lessee to make
monthly payments in the amount of and at the times
hereinabove specified shall constitute a material breach
of this agreement.
(b) Percentaqe of Gross Receipts.
(1) In addition to any other sums set forth herein,
Lessee shall pay to city the following:
Three percent of any amounts in excess of $400,000 gross
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receipts up to $700,000 gross receipts, and five percent
of any amounts in excess of $700,000 gross receipts,
received by Lessee from any use permitted by this
agreement, except for non-baseball related use.
(2) For the purpose of this agreement, the term
"gross receipts" shall mean all money received by or paid
to the Lessee, limited to facility use charges (admission
fee, etc.), group user fees, refreshment concession,
souvenir concession and advertising revenues. For
purposes of this agreement, "gross receipts" does not
include other things of value which may be received by
Lessee. Reference is hereby specifically made to "trade
outs" as being excluded from the definition of "gross
receipts". "Trade-outs" is defined as the provision of
"in-kind" goods and services.
Each transaction on credit or installment shall be
treated as a transaction for the full price in the
calendar year in which the sale is made, unless the payor
has or is under bankruptcy or has disappeareared and
there are no means of receiving such payments. The
lessee shall record such as loss of income. In the event
that any amount settles for less than the actual
receivable it shall be accounted for as the actual
receipts.
Any reference in this paragraph to sublessees,
concessionaires, or licensees of Lessee shall not be
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deemed to be an authorization for any subletting or
granting of concessions or licenses by Lessee with
respect to the premises.
(c) PaYment of Percentaqe of Gross ReceiDts.
(1) Lessee shall notify city in writing within thirty
(30) days of date of the last game of Lessee's season as
to the extent of gross receipts from the uses permitted
under this agreement. On that date Lessee shall pay to
city such sums as have accrued to city from such gross
receipts as per this agreement.
(d) Charqes on Past-Due PaYments - Liquidated Damaqes.
(1) If Lessee fails to make the payments set forth
hereinabove by the due dates set out herein, Lessee shall
pay a charge on such past-due amounts at a rate of 20%
per annum of the amount due.
This provision shall not be deemed as a forbearance on the
payments of such amounts, and City retains any and all
remedies for nonpayment of such amounts.
This provision is an estimate of the anticipated damage to be
suffered by City for non payment of such amounts and it is not
to be construed as a penalty. It is hereby agreed that it
would be difficult or impossible to determine the precise
amount of such damages to the City in the occurrence of a
breach of the covenant to make timely payments.
6. Oualitv of ODerations. The Lessee shall, at all times,
operate the facilities in a good businesslike manner and
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incident thereto render to the public using said facilities,
efficient and courteous service. In the event that the
Director of Parks, Recreation and Community services
(hereinafter "Director") reasonably finds that service
rendered by the Lessee is substandard or that any other
provisions of the lease herein given are not being adequately
performed or complied with, the Lessee upon being advised of
the nonperformance or noncompliance shall correct any such
violation, deficiency or omission within 5 calendar days of
such notice. Where such notice is as to a matter respecting
heal th and safety, corrections shall be made within 24 hours.
City hereby represents that the facility is in full compliance
with all health and safety codes prior and during the term of
the lease.
7. Emplovees. Any and all personnel, including employees,
agents and representatives of Lessee, in conducting the
operations of facility, shall not have been convicted of a
crime of moral turpitude.
Said personnel shall be neatly attired and shall conduct
themselves at all times in a courteous and businesslike
manner. All personnel at the facility shall be covered under
the Workers' Compensation Act of the State of California.
Lessee shall require that any employee, agent or licensee of
any independent contractor of Lessee performing work at the
facility be covered by the Workers' Compensation Act of the
State of California.
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8. Nondiscrimination bv Lessee. Lessee and City shall not
in the performance of service under this agreement
discriminate against any employee or applicant for employment
because of sex, race, color, creed, national origin, or
handicap and shall not discriminate in the providing of
service hereunder against any person on the basis of sex,
race, color, creed, national origin, or handicap.
9. Lessee Riqhts and status.
(a). The rights herein given to the Lessee is a lease subject
to the terms and conditions set forth herein.
(b). In addition, the Lessee, his agents, contractors, and
employees shall be at all times independent contractors and
shall not be considered agents or employees of the city.
10. Assiqnment Prohibited. The rights and privileges given
to the Lessee are not assignable in whole or in part or by
operation of law and any such attempted assignment shall be
invalid and of no legal force or effect. This provision may
be waived only with the express written consent of the Mayor
and Common Council of the city of San Bernardino.
11. Subleases. Concessions. Licenses. Contracts. The
provisions of section 10 shall not prohibit Lessee from
entering into concessions, licenses or contracts for the
operation of any portion of the business conducted on the
premises. Each concession, license or contract that is
entered into by Lessee shall be subject to the provisions of
this agreement including payment of the same percentage of
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gross receipts to the City as set forth herein for the Lessee.
A copy of any concession license or contract shall be placed
on file with Director.
12. Advertising. Lessee shall have the right to sell,
display and maintain advertising on the inside of the outfield
fence of the facilities, a scoreboard, and on signs which
may be attached by Lessee to the back of the bleachers on
the premises or wherever reasonably acceptable by the
City. The message board located on the north side of
facility is not part of a subject of this agreement,
but the parties may enter into a separate agreement
relative to such message board or alternate sign.
13. Access to Premises.
(a) Lessee shall have full and unimpaired access to
field facilities at all times during the term of this
agreement. Additionally, Lessee shall enjoy access to
maintain and access an office on the premises effective
the date of signing of this agreement and extending to 30
days beyond the termination of this agreement. Use of
the office may be extended beyond the 30 days provided
City and Lessee are in good faith negotiations for
continued use of facility by standard use agreement for
an additional 60 days.
(b) During the above times, City and its authorized
representatives shall have the right to enter the
facilities at all reasonable times for any of the
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following purposes:
(1) To determine whether the premises are in good
condition and whether Lessee is complying with its
obligations under this lease. city shall exercise
reasonable discretion as to the time and manner of making
said determination.
(2) To do any necessary acts, consistent with the
provisions of this agreement, including maintenance, and
any restoration to the facilities that City has the right
or obligation to perform.
(3) To authorize, permit or conduct special events
including but not limited to Dodger Baseball Clinic,
C.T.F. High School Playoffs, California state University
"Coyotes" Baseball team, et cetera.
14. Communitv Uses.
(a) Lessee shall have the right of approval of all
contracts, licenses or permits entered into by the
Director for the use of the facilities, between March 1
and September 15, 1993 at reasonable times, by community
groups. Lessee shall use its best good-faith efforts to
satisfy the needs of the general pUblic for the use of
the facility by agreeing to permits for available dates
and times for the special events provided in paragraph 13
(b) (3) and other public uses.
(b) During the term of agreement Lessee shall have the
right of first refusal as to the operation of all
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1 concessions during any and all events in facility.
2 Director shall notify Lessee of any planned community
3 event at least 60 days prior to date of such event.
4 Lessee shall thereafter have 30 days in which to notify
5 Director in writing, of its intent to refuse the
6 operation of concessions for that event.
7 city shall be entitled to 5% of the gross receipts from
8 all concessions conducted pursuant to this provision.
9 15. Nuisances Prohibited.
10 (a) Lessee shall not use the premises, any part
11 thereof, or permit them to be used for any purposes other
12 than as specified herein. Lessee shall not do or permit any
13 act or thing to be done upon the premises which constitutes
14 a nuisance or which may unreasonably disturb the quiet
15 enjoyment of city or any resident of City on adjacent or
16 neighboring property.
17 (b) Lessee shall at its own expense attach and
18 maintain a governor on the controls of its sound system.
19 Said governor shall be at all times maintained at a level
20 mutually agreed upon by Lessee and city.
21 (c) Lessee further agrees, that within 24 hours of
22 receipt of a written notice from the City that a nuisance
23 exists, to abate or otherwise cause said nuisance to be
24 remedied to the degree of its responsibility for said
25 nuisance. In the event Lessee has not (a) taken corrective
26 action within 24 hours, then city may enter and abate said
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1 nuisance at the expense of the Lessee without any liability
2 whatsoever to City for monetary loss or anticipated profits of
3 Lessee or others. An appeal to the Mayor and Common Council
4 must be made in writing and be received by the City Clerk, San
5 Bernardino, California, wi thin 24 hours after Lessee received
6 notice of said nuisance. This section shall not be construed
7 so as to prohibit immediate enforcement by pOlice or other
8 authorized City official, of any municipal code, ordinance or
9 other applicable law.
10 16. Parking Lot Rates. Lessee shall not charge for use
11 of the facility parking lot except by specific resolution of
12 the Mayor and Common Council of the City of San Bernardino.
13 17. Indemnification and Hold Harmless. The Lessee
14 shall and hereby agrees to defend, indemnify, save and hold
15 harmless the City, its agents, officers, employees,
16 contractors and invitees from any and all losses or damage
17 and from any and all liability, suits, actions or claims
18 brought or made by any person or persons, arising or resulting
19 from any and all activities and operations of Lessee, Lessee's
20 agent, employees, contractors or invitees and for injury or
21 damage to persons or property about or wi thin said facilities
22 while Lessee, Lessee's agents, employees, contractors or
23 invitees are occupying said facilities for any reason or in
24 any fashion including when such loss or damage is the proximate
25 result of the negligence of lessor's agents, employees or
26 contractors. City agrees to procure insurance from community
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1 users of facility that lists Lessee as additionally insured.
2 18. Liabilitv Insurance Coveraqe.
3 (a). The Lessee, at Lessee's own cost and expense,
4 shall maintain throughout the term of this agreement:
5 (1) A policy or policies of Comprehensive Liability
6 Insurance with a minimum limit of liability of ONE MILLION
7 DOLLARS ($1,000,000) Combined Single Limit for bodily injury
8 and property damage with an aggregate minimum limitation
9 liability of FIVE MILLION DOLLARS ($5,000,000) and including
10 the following coverages:
(i) Premises Operations Including Alterations (for
sports events and stadiums). The only
exclusion which the City shall accept to this
coverage is that which excludes bodily injury
to athletic participants only and which in no
way excludes spectators.
This coverage shall also provide coverage for
the continual use of office space at the
premises.
Broad Form Contractual Liability.
Broad Form Property Damage.
Products Liability (for the sale of souvenirs,
athletic equipment and for the sale of food and
drink) .
(v) Personal Injury and Coverages i, ii, and iii
listed above.
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(H)
(Hi)
(iv)
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(vi) In the event Lessee engages or subcontracts any
advertising or broadcasting, then a policy of
advertising and broadcasters liability
insurance shall be provided either by
lessee or by said subcontractor with minimum
limits of $1,000,000.
(vii) Open Air Parking (for which a charge is made).
(viii) Liquor Legal Liability with a minimum limit of
$1,000,000.
(ix) Fire Legal Liability with a minimum limit of
$1,000,000.
(x) Vendors' Coverage (provided on an "if any"
basis as commonly used in the insurance
industry; that is, if there is any exposure to
the risk during the policy period).
(2) A policy or policies of Comprehensive Vehicular
Liability insurance with a minimum limit of liability of
One Million Dollars ($1,000,000) Combined Single Limit
for bodily injury and property damage with an aggregate
minimum limit of liability of five million dollars
($5,000,000) and which includes coverage for non-owned
and hired vehicles and which provides uninsured Motorist
coverage according to minimum state requirements. In the
event Lessee acquires owned or leased vehicles, then
Lessee shall immediately obtain equivalent coverage for
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such vehicles.
(b) Each policy providing coverage as required
by subparagraph (a) above, must have endorsements
providing:
(1) That the city of San Bernardino, its officers,
agents, employees, contractors and invitees are
additional insureds as respects the use of the
facilities.
(2) That the insurance provided by the policy
shall be primary insurance as respects any other valid
and collectible insurance the City of San Bernardino may
possess and that any other insurance the City does
possess will be considered excess only.
(3) That the policy will act to cover each insured
and each additional insured as though a separate policy
were written for each.
(4) That no less than thirty (30) days written
notice will be given to the city Administrator or his or
her designee, city of San Bernardino, 300 North "0"
street, San Bernardino, california 92418, before
cancellation or reduction in coverage for any reason.
(c) If the Lessee engages another party to provide the
operation of refreshment, souvenir and/or other
concessions, as permitted hereinabove, the Lessee shall
also cause that party or parties so engaged, at said
party's or parties' own cost and expense, to obtain and
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to keep in force throughout the term of this agreement,
a policy or policies of public liability insurance
(including products liability coverage) separately
providing limits and coverage as aforesaid arising
out of each such concessionaire's operations. Before any
person other than Lessee operates any refreshment,
souvenir or other concession, Lessee shall notify city of
the name and business addresses of such concessionaire,
and obtain and file with City such concessionaire's
policy and/or certificates as are herein specified.
19. Workers' Compensation Insurance Coveraqe.
(a) The Lessee, at Lessee's sole cost and expense,
shall provide, pay for and maintain throughout the term
of its lease, a policy providing workers compensation
insurance coverage with the statutory limits of liability
as set forth by the laws of the state of California, and
including not less than $500,000, Employer's Liability,
applicable to employees, agents and volunteers of Lessee,
sub-lessees or assignees.
(b) The policy shall be endorsed to waive the right of
sUbrogation against the city. The pOlicy also shall be
endorsed to provide that not less than thirty (30) days'
written notice shall be given to the City Administrator
or his or her designee, City of San Bernardino, 300 North
"0" Street, San Bernardino, California 92418, before
cancellation or reduction in coverage of any nature or
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for any reason.
20. Evidence of Coveraqe.
(a) Except as otherwise provided herein, each
policy obtained by the Lessee to comply with the
provisions of this agreement must have an effective date
no later than the commencing date of this agreement and
the named insured on each policy must be identical to
the Lessee in this agreement. The Lessee agrees to
furnish evidence, acceptable to the city, that the
insurance requirements of this agreement have been
fulfilled. Such evidence is to be placed on file by the
Lessee with the City Administrator or his or her
designee, city of San Bernardino, 300 North "0" Street,
San Bernardino, California 92418.
(b) No occupancy or use of City's property or
facilities shall be made by the Lessee, Lessee's agents,
contractors employees or invitees, under the provisions
of this agreement until evidence acceptable to City
Administrator or his or her designee that the aforesaid
insurance requirements have been fulfilled has been
received by the city Administrator or his or her
designee. Each policy, binder or certificate of
insurance, is subject to the reasonable approval of city
Administrator or his or her designee as to content, form
and issuing company. Should any of the insurance
requirements set forth in this agreement not be fulfilled
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by the Lessee in a manner reasonably acceptable to City
Administrator or his or her designee as provided in this
agreement, said City Administrator may purchase any or
all of the insurance required to correct such
deficiencies and the Lessee and Individuals agree that
the premium incurred therefor shall constitute an additiona
fee to be paid by the Lessee to the City upon demand.
(cl On or before March 15, 1993, a certified, true
and correct copy of each policy providing all or part of the
liability insurance coverage required by Paragraph 18 above,
together with all required endorsements, and a certificate of
insurance together with the required endorsement for the
workers' compensation coverage required by Paragraph 19 above
must be received directly from the issuing company by the cit
Administrator or his or her designee.
(d) During the first thirty (30) days coverage of an
policy obtained by the Lessee to fulfill requirements of thi
agreement, evidence may be in the form of an insurance binder
provided that any such binder must include language to fulfil
the requirements, including endorsement requirements, i
addition to the normally accepted items in a binder, such as
but not limited to: coverage, limits of liability,
coverage was effective, expiration date of binder,
insuring company and signature of authorized
representative.
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21. citv Not a Bailee. It is further hereby understood and
agreed that the city in no way purports to be a bailee and is
in no way responsible for lost, stolen or damaged property of
Lessee, its agents, employees, concessionaires or invitees.
22. Possessorv Interest Tax. Lessee hereby acknowledges and
understands that this agreement may create a possessory
interest subject to property taxation pursuant to California
Revenue and Taxation Code section 107, and that Lessee may be
subject to payment of property taxes levied on such interest,
and that such tax payment shall not reduce any monies due the
City hereunder and any such tax shall be the liability of and
be paid by the Lessee.
23. Compliance with Orders. Ordinances and Laws. The Lessee
shall at all times and continuously operate in full compliance
with all Federal, State and local laws, statutes and
ordinances; all orders of the Health Officer of the County of
San Bernardino; all directives of the Director; and shall
grant access for inspection purposes to any authorized
representative of the State Board of Health or the County's
Health Officer, or any authorized representative of the
Director.
24. Liens and Encumbrances. Lessee shall keep the premises
and all structures and improvements situated thereon free from
any liens or encumbrances arising out of any work performed,
material furnished, or obligations incurred by Lessee, or from
any other cause.
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25. Scoreboard. City and Lessee agree to work jointly to
procure a sponsor for the scoreboard and message center. If
no sponsor is found city and Lessee agree to share equally the
cost to retain the scoreboard/message center for the duration
of this agreement. This cost is estimated at $10,000 ($5,000
to city and $5,000 to lessee).
26. Staffina and Cleanup.
(a) Lessee shall provide all event personnel, including,
without limitation, ticket sellers, ticket takers, ushers,
clubhouse matrons, clubhouse janitors, medical persons,
switchboard, sound and scoreboard persons, and other
supervisory personnel, and all other personnel reasonably
necessary for the operation of the premises for the events
held therein. Lessee shall also provide attendant care during
the game including but not limited to restroom clean-up,
garbage, trash and litter clean-up of facility. Lessee shall
be responsible for stadium clean up to include pick-up and
removal of all litter and debris from stadium, parking lot and
adjoining areas. Clean up shall be provided, at a minimum,
after each home game and prior to the commencement of each
home game and prior to and after any event otherwise held at
the facility pursuant to this agreement. Clean up shall
include washing down the bleachers as necessary. City agrees
to furnish and maintain equipment listed on Exhibit "B" for
the purpose of accomplishing stadium Cleaning. It is
understanding that all equipment is and will remain property
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of the city. City agrees to furnish a staff person to train
a clean-up crew employed by Lessee for a period of one week.
(b) City shall provide, at its expense, ballfield
preparation, maintenance of all public restrooms and all
restroom supplies and trash bags as is required for daily
stadium operations.
(c) If City should provide any of the labor or services
described in subparagraph (a) above, Lessee shall reimburse
City for its labor, materials, supplies and administrative.
27. utilities and Additional Services.
(a) City shall make arrangement for and pay for all
utilities furnished to or used at facilities, including the
business office, for all regular baseball games covered by the
agreement including, without limitation, gas, electricity,
water and trash collection, and for all connection charges.
Except, Lessee shall be responsible for all costs of telephone
service, including connection fees, service charges and user
taxes for the business office.
(b) At Lessee's request, city may provide, at the sole
discretion of the Director, or her designee, additional
services and supplies in support of the presentation of any of
the events herein contemplated. Lessee shall reimburse City
for the labor, materials, supplies and administrative overhead
costs incurred in providing such services and supplies.
28. Securitv. Lessee shall be responsible for providing
all reasonably necessary security at each and every event held
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by Lessee at the facility under the provisions of this
agreement.
Lessee shall provide traffic control and security in the
stadium and parking lot at its expense. Traffic control and
security are to be provided at the discretion of the Lessee
except when the Director, or the Chief of POlice, in the
exercise of her/his sole discretion, determines that such is
necessary as a matter of public safety.
29. Maintenance and Repair.
(a) General. Lessee agrees to maintain all equipment at
facility. city agrees to maintain all capital improvements at
facility.
(1) Lessee agrees to accept facility with such
capital improvements as is currently existing. City agrees to
provide existing improvements and to maintain the facility as
specified herein. In the event, and at the time that
additional and/or new equipment other than is specified herein
is reasonably necessary for the proper operation of facility,
Lessee shall, at Lessee's sole cost and expense, purchase such
additional and/or new equipment. Unless such equipment is
attached as a fixture to facility, equipment shall remain the
personal property of Lessee.
(b) Routine Maintenance and Repairs. Except as
otherwise provided herein, City shall maintain, in good and
safe condition, all portions of the facility. City's routine
maintenance shall include, without limitation, and shall not
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be limited to: replacing light bulbs in floodlights, field
lights and security lighting; manual broom or vacuum cleaning
and stocking the public restroom; repair of asphalt surfaces
including parking lot and driveways; landscape maintenance to
include fertilization and weed control around the perimeter of
the facility and both sides of perimeter fencing, all aspects
of playing field maintenance; bleacher repairs; all irrigation
system repairs including water fountains; all plumbing repair
such as sewage stoppages; all electrical repairs including
junction box blowouts, all painting for cosmetic purposes, all
repair and maintenance of the backstop, netting and
scoreboard, et cetera.
(c) Emerqencv Maintenance. Lessee hereby agrees to
comply with such written procedures as shall be established by
Director for obtaining emergency maintenance or repair of any
property or equipment to be maintained by City under this
agreement. Lessee shall be liable for all costs incurred in
a manner inconsistent with such procedures.
30. Alterations.
(a) Except as otherwise specifically provided herein,
Lessee shall not make any structural or nonstructural
alterations to the facility without the city's consent, which
shall not be withheld unreasonably. The Director may act for
the City in giving such consent.
(b) City may elect, within thirty (30) days before the
expiration of the term or at the time of any other surrender
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of such facility, to require Lessee to remove any alterations
that Lessee has made to the facil i ty . If city so elects,
Lessee, at its cost, shall restore the facility to the
condition it was in at the commencement of the term less
normal wear and tear, within sixty (60) days after notice of
election is given.
31. Construction Bond Reauirements. In the event that
alterations are made by Lessee in accordance with the
provisions of this agreement or in the event that individual
maintenance and repairs exceeding Five Thousand and NO/lOO
/Dollars ($5,000.00) are made by Lessee as a requirement of
this agreement, Lessee shall provide such faithful performance
bonds, payment bonds and labor and material bonds as City may
demand and the terms and provisions of the construction or
maintenance contract to accomplish any such alterations,
maintenance or repairs to the facility shall be subject to the
approval of the Director and the City Attorney.
32. structural Restoration and Repair. City, at its
cost, shall repair, replace, and maintain the structural
integrity of the following:
(a) All structural parts of the building and permanent
fixtures and other improvements that are a part of the
facility, including, without limitation, the foundations,
bearing walls, sUb-flooring, ceiling, roof, window frames (not
including screen and panes), gutters and downspouts, light
poles, grandstands, and concession stands, et cetera.
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(b) The unexposed electrical, plumbing and sewage
systems, including, without limitations, those portions of the
systems lying outside the facility.
(c) city shall pay for all repair of the facility if it
is damaged by (1) causes outside the facility over which
Lessee has no control; (2) acts or omissions of City or its
authorized representatives; or (3) City's failure to perform
its obligations under this agreement.
(d) Lessee shall, and hereby agrees, to reimburse city
for city's total cost of repairs made necessary by the
activities and operations of Lessee, Lessee's agents,
employees, contractors or invitees.
33. Destruction.
(a) If, during the term of this agreement, the facility
is totally or partially destroyed from any cause, rendering
the facility totally or partially inaccessible or unusable and
if, with reasonable diligence, the restoration can be
completed within ninety (90) working days after the date of
destruction, and if city determines it is within its financial
means to restore the facility, then city shall restore the
facility to substantially the same condition as it was in
immediately before destruction, and such action shall not
terminate this agreement.
(b) If such destruction occurs during the playing season
of lessee, City shall have 15 calendar days following date of
destruction within which to notify lessee of City's
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determination of its ability to repair the facility within the
time set forth in subparagraph (a). If such destruction
occurs at any other time, City shall have 15 calendar days
within which to provide such notice.
(c) Upon notice that city in the reasonable exercise of
its discretion determines that restoration cannot be made in
the time stated in subparagraph (a). Lessee may then
terminate this agreement immediately by giving written notice
to city. If Lessee fails to terminate this agreement, within
30 calendar days of date of such notice, city, at its
election, can either terminate this agreement, or restore the
facility within a reasonable time. If within 30 calendar days
following date of expiration of the period for lessee's notice
of its election to terminate, city notifies lessee of its
intent to restore, this agreement shall continue in full force
and effect.
(d) When such destruction occurs within ninety (90) days
of the last day of the then current baseball season, Lessee
may conduct the remainder of its home games during that season
within some other facility without impairment of any of its
rights hereunder.
(e) The time periods herein set forth shall not include
time for evaluation of loss by any insurer. Notice that a
claim for loss of facility is under evaluation by an insurer
of the facility shall toll the time for notice of intent to
restore. City shall not be responsible for any losses
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incurred by lessee proximately arising from a delay in the
restoration of the facility which occurs for reasons beyond
the control of the city.
34. Time of Essence/Breach. Where performance of a covenant
is specified herein to be on or before a certain date, time
shall be of the essence of said covenant. Performance by the
Lessee of each and every condition, covenant or provision of
this agreement is material, the breach of which shall
constitute a material breach of this contract for which City's
Director may terminate this agreement; provided, however, that
any such termination by said Director shall not be effective
until not less than thirty (30) days after notice of
termination by said Director to the Lessee and said Director
may withdraw and cancel such termination if, in the sole
discretion of City: (1) the breach is cured within the
thirty-day period; or (2) the nature of the breach is such
that it cannot be cured within such thirty-day period but the
Lessee promptly commences to correct such breach and proceeds
to correct the same as promptly as reasonably practicable.
35. Attornev's Fees/Leaal Costs. If any action at law or in
equity shall be brought to enforce or interpret the terms of
this agreement, including costs of reduction to cash the
proceeds of any security provided hereunder, the prevailing
party shall be entitled to recover from the other party as
part of the prevailing party's costs reasonable attorney's
fees, the amount of which shall be fixed by the court and
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shall be made a part of any judgement or decree rendered. For
any action by the City Attorney to enforce this agreement,
reasonable attorneys fees shall be determined at the rate of
$150.00 per hour.
36. Waiver of Breach. The waiver of any breach of any term,
covenant or condition herein contained shall not be deemed to
be a waiver of any subsequent breach of the same or any other
term, condition or covenant contained herein.
37. Surrender of Premises. Upon the termination of the term,
Lessee shall surrender to City, the facility and all Lessee's
improvements and alterations, in good condition (except for
ordinary wear and tear) occurring after the last necessary
maintenance made by Lessee and destruction of the facility
covered by paragraph 33, except for alterations that Lessee
has the right to remove, or is obligated to remove, under the
provisions of paragraph 30. Lessee shall remove all of its
personal property and perform all restoration made necessary
by the removal of said personal property and by the removal of
any alterations prior to the termination of the term of this
agreement.
38. Termination.
(a) The City may terminate this agreement for cause including
but not limited to, the following occurrences:
(1) Any action taken or suffered by the Lessee or
shareholders of 40% or more under an insolvency or
bankruptcy act, including the appointment of a receiver
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to take possession of all or substantially all of the
assets of the Lessee or shareholders of 40% or more.
(2) Any general assignment by Lessee or shareholders of
40% or more for the benefit of creditors.
(3) Loss of the franchise.
(4) Lessee fails to provide the regular playing of
baseball games at Class A or above league level at the
facility for reasons other than loss or destruction of
the field or other impossibility, including but not
limited to a players strike.
(b) The Mayor and Common Council is empowered to decide, on
the part of the city, that this agreement is to be terminated
for cause and to furnish 30 days' written notice thereof to
the Lessee. Lessee shall have the right to resolve any
default within those 30 days.
39. Effect of Termination.
(a) Any other provisions of this agreement notwithstanding,
upon termination of this agreement City shall be entitled to
utilize any security in the manner as set forth in this
agreement.
(b) Upon termination of this agreement, in addition to any
other amounts due to City hereunder, City shall be entitled to
receipt of any unpaid rents for the remainder of the term
during which such termination occurs.
40. Communitv Service. In addition to all other
considerations set forth herein, Lessee agrees to perform the
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following community services during the term of this
agreement:
(al Conduct a minimum of two baseball clinics a year without
charge for children under the age of 18. Said clinics are to
be scheduled at the discretion of Lessee. Director shall
receive 60 days' prior written notice of the date of each
clinic.
(bl Lessee shall provide at least one public service
announcement on the reader board during each game. The
message shall be published without charge. Said language
shall be approved by the Director.
41. Incorporation of Prior Aareements and Amendments. This
agreement contains all agreements of the parties with respect
to any matter mentioned herein. No prior agreement or
understanding pertaining to any such matter shall be effective
except as otherwise incorporated herein. This agreement may
be modified in writing only, signed by the parties in interest
at the time of the modification. This agreement shall not be
construed as requiring the city to make any expenditures,
other than as specifically set forth herein.
42. Venue. If either Lessee or City initiate an action to
enforce the terms hereof or declare rights hereunder,
including actions on any bonds and/or surety agreements, the
parties agree that the venue thereof shall be the County of
San Bernardino, State of California.
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43. Severabilitv. The invalidity of any provision of this
agreement, as determined by a Court of competent jurisdiction,
shall in no way affect the validity of any other provision
hereof.
44. captions. Paragraph headings in this agreement are used
solely for convenience, and shall be wholly disregarded in the
construction of this agreement.
45. Covenant and Conditions. Each provision of this
agreement performable by Lessee shall be deemed both a
covenant and a condition.
46. Notice. Except as otherwise provided herein, any notice,
statement, demand, request, consent, approval, authorization,
offer, agreement or communication, that either party hereto
desires, or is required to give to the other party, shall be
in writing and shall be sufficiently given and served upon the
other party if delivered personally, or if sent by United
states postal service, first class postage prepaid, and
addressed as specified herein. Either party hereto may
change its address for purposes of this agreement by giving
the other party appropriate written notice of the
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change of address.
Notice shall be deemed to be
communicated within forty-eight (48) hours of the time
of mailing, if mailed to the following:
AS TO CITY:
AS TO LESSEE:
Director
Parks, Recreation and
Community Services
547 North Sierra Way
San Bernardino, CA 92401
Don Nomura
Wilshire Metropolitan
Center
1127 Wilshire Blvd.,
Suite 916
Los Angeles, CA 90017
47. No Third Party Beneficiaries of Agreement.
Any insurance
coverage required herein is for the protection of City, its
officers, agents, employees, contractors, and invitees. No third
party beneficiaries other than as specifically named herein are
contemplated under any provision of this agreement, nor is it the
intent of this agreement to create any right in same.
48. Vendor Consideration.
Lessee hereby agrees to give best
effort consideration to vendors with principal offices in the City
of San Bernardino in the award of contracts for the provision of
goods and services.
49. Accounting.
(a) Commencing with the month of May on or before the
lOth day of every other month, during the term of this
lease, Lessee shall file with the Parks, Recreation and
Communi ty Services Director of City, an accounting
showing the gross receipts form use of the facility.
Said accounting statement shall contain an appropriate
certification that all gross receipts of the previous
month have been duly and properly reported to City and
that the statements filed with the City are in accord
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with Lessee's reports of profits and losses to its owners and
its Federal Income Tax Return.
(b) Lessee shall keep true and accurate books and records
showing all of his business transactions conducted on or from
the premises in accounts separate from any other business
which Lessee may have or conduct. A copy of records shall be
retained on the premises or at such other place in San
Bernardino County as is approved by city, provided that Lessee
may temporarily remove the same as may be necessary for legal
or accounting purposes.
(c) City shall have the right, after reasonable notice and at
any reasonable time, from time to time, to examine and audit
the books and records of Lessee and his sublessees,
concessionaires and licensees, including California Sales Tax
Records, and to make copies of same and of any written
agreements
between
and
such
sublessees,
Lessee
concessionaires, and licensees of Lessee. Providing further,
that city reserves the right to examine all such books and
records with reasonable notice during the period following the
regular baseball season (September 15th), up to 30 days after
the expiration of this agreement.
(d) Lessee shall provide the city with all information needed
to exercise its rights under this section of agreement, and
shall not unreasonably withhold any requested information.
32
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1
50. Successors Bound. This agreement shall be binding
2 upon and inure to the benefit of each of the parties and their
3 respective legal representatives, successors, heirs and
4 assigns.
5
6
DATED:
7
8 Z(~~
9 City Clerk
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13 Approved as to form
and legal content:
14 JAMES
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II
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II
20 II
II
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II
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II
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II
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II
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II
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27 33
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EXHIBIT liB"
FIBCALINI FIELD
BLEACHER CLEANUP EQUIPMENT
2 - Back Pack Blowers
2- Leaf Rakes
2- Push Brooms
2- pickup sticks
6-25 Ft Lengths Fire Hose
2- Fire Hose Nozzels
2- Gum Scrapers
Trash Bags
JK:jj
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