HomeMy WebLinkAbout1989-485
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1 RESOLUTION NO. 89-485_
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH SAN BERNARDINO BASEBALL CLUB,
3 INC., RELATING TO THE USE OF FISCALINI FIELD.
4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
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SECTION 1.
The Mayor is hereby authorized and directed to
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execute on behalf of said City an Agreement with San Bernardino
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Baseball Club, Inc., relating to the use of Fiscalini Field, a
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copy of said agreement is attached hereto, marked Exhibit "A",
and incorporated herein by reference as fully as though set forth
at length.
SECTION 2.
The authorization to execute the above-
referenced agreement is rescinded if the parties to the
agreement fail to execute it within sixty (60) days of the
passage of this resolution.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof,
held on the 4th
regular
day of D""ember, 1989, by the following vote, to wit:
Council Members: AYES NAYS
ESTRADA x
--
REILLY )(
--
FLORES x
MAUDSLEY _---X-
---
MINOR __----X_
----
POPE-LUDLAM __X---
---
MILLER -----"-..--"
---
ABSTAIN
___,A1/a'd/~~"__
Ci ty :;~erk
/ / / /
/ / / /
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December 4, 1989
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1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGHEEMEN'i' WITH SAN BERNARDINO BASEBALL CLUB,
2 INC., RELATING TO THE USE OF FISCALINI FIELD.
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The foregoing resolution is hereby approved this S"i:.l day
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of
December
, 1989.
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8 Approved as to
form and legal content:
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JAMES F. PENMAN,
City Attorney
By:~t-~~
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December 4, 1989
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A G R E E MEN T
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THIS AGREEMENT is executed at San Bernardino, California,
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this ______day of
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by and
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between the CITY OF SAN BERNARDINO, a Charter City (hereinafter
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"City"), SAN BERNARDINO BASEBALL CLUB, INC., a California
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corporation (hereinafter "Lessee").
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WIT N E SSE T H:
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WHEREAS, the City Council of the City of San Bernardino has
the authority to enter into a Lease Agreement regarding all or
any portion of City-owned property devoted to park, amusement or
recreation purposes; and,
WHEREAS, Lessee has acquired a franchise to operate a
professional baseball team as a member of the California League;
and,
WHEREAS, it is the intention and desire of the parties
hereto to enter into a Lease Agreement regarding the use of
Fisca1ini Field, being a portion of the public park and
recreation area owned by the City of San Bernardino, for the
purpose of conducting and carrying on a professional baseball
franchise thereon and the operation of concession stand
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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NOW, THEREFORE, IT IS ~JTUALLY AGREED as follows:
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Ci ty, for and in consideration of the
1.
Premises.
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".
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Lease Granted. This Agreement is made for the purpose
2.
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of granting Lessee the nonexclusive use of the facility.
No
10 professional or semiprofessional baseball team shall be
11 permitted to conduct games at facility during the term of this
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13 is also entitled hereunder to sufficient space for the operation
Lease except with the express written consent of Lessee.
Lessee
14 of a business office, said office to be provided by Lessee.
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The aforementioned lease shall
3.
Term of Lease.
16 commence on March 1, 1990, and terminate on September 15, 1993.
17 At the option of the Lessee, this agreement may be renegotiated
18 and extended to September 15, 1994, upon terms as hereinafter set
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forth.
All terms not specifically amended at the time of any
20 such extension shall remain as originally set forth.
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4.
Use of Facility by Lessee for Non-
Baseball Related Activities.
24 available to Lessee not to exceed 15 days in each calendar year
( a )
City agrees that Fiscalini Field shall be made
25 during the term of this agreement for non-baseball related
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activities.
The schedule, events and sale of alcohol at such
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events shall be subject to City Council approval.
Request for
2 such an approval shall be made ft~fte~y thirty days in advance of
3 any such activity.
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Notwithstanding any other terms of this agreement,
b.
5 Lessee shall bear all costs of the non-baseball activities in the
6 manner as set forth in Section 27 paragraphs a and c and Section
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29 of agreement.
Said costs shall include the cost of utilities
8 for the event.
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In addition to any other sums set forth herein, Lessee
c.
10 shall pay to the City 5% of the gross receipts received by Lessee
11 for each such non-baseball activity.
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5.
Payment by Lessee to City.
a.
Guaranteed Minimum Annual Fee.
Lessee agrees to pay
14 to the City as fees for the lease herein granted for the use of
15 Fiscalini Field a minimum annual fee of $40,477 for the use of
16 the facility in the period March I, 1990, to September 15, 1990;
17 $42,501 for the period t1arch I, 1991, to September 15, 1991;
18 $44,626 for the period March I, 1992 to September 15, 1992; and
19 $46,857 for the option period March I, 1993 to September 15,
20 1993, if Lessee elects to exercise such option.
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All payments required hereunder
(1 )
Payment.
are due and owing as of April I, of each year of
terms.
Said payment shall be made in equal monthly
installments for six months beginning on April 1 of
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each such year.
Failure by Lessee to make monthly
payments in the amount of and at the times
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hereinabove specified shall constitute a material
breach of this agreement.
b.
Percentage of Gross Receipts.
(1 )
In addition to any other sums set forth
herein, Lessee shall pay to City the following:
Five percent of any amounts in excess of
$450,000 gross receipts, received by Lessee from any
use permitted by this agreement in each calendar year
1990, 1991, 1992 and the option year 1993 if the
option is exercised.
(2) For the purpose of this agreement, the term
"gross receipts" shall mean all money received by or
paid to the Lessee from the entire operation of the
facilities, including but not 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
22 receipts".
23 Each transaction on credit or installment shall
24 be treated as a transaction for the full price in the
25 calendar year in which the sale is made.
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Any reference in this paragraph to sub1essees,
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concessionaires, or licensees of Lessee shall not be
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deemed to be an authorization for any subletting or
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granting of concessions or licenses by Lessee with
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respect to the premises.
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(2) Payment of Percentage of Gross Receipts.
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(i) Lessee shall notify City in writing within
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thirty (30) days of date of the last game of
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Lessee's season as to whether gross receipts from the
uses permitted under this agreement total $450,000.
On that date Lessee shall pay to City such sums as
have accrued to City from such gross receipts as per
this agreement.
(ii) Charges on Past-Due Payments -Liquidated
Damages.
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 the
prime rate plus 2% and no less than 10% per annum
adjusted as of April 1 of each year.
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
26 be suffered by City for nonpayment of such amounts and it is not
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to be construed as a penalty.
It is hereby agreed that it would
2 be difficult or impossible to determine the precise amount of
3 damages to the City in the occurrence of a breach of the
4 covenant to make timely payments.
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6.
The Lessee shall, at all
Quality of Operations.
6 times, operate the facilities in a good businesslike manner and
7 incident thereto render to the public using said facilities,
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In the event that the Director
efficient and courteous service.
9 of Parks, Recreation and Community Services (hereinafter
10 "Director") reasonably finds that service rendered by the Lessee
11 is substandard or that any other provisions of the lease herein
12 given are not being adequately performed or complied with, the
13 Lessee upon being advised of the nonperformance or noncompliance
14 shall correct any such violation, deficiency or omission within
15 5 calendar days of such notice. Where such notice is as to a
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17 within 24 hours.
matter respecting health and safety,
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corrections shall be made
7.
Employees.
Any and all personnel, including
19 employees, agents and representatives of Lessee and City, and all
20 independent contractors of Lessee, in conducting the operations
21 of facility, shall be qualified to perform the duties assigned to
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Said personnel shall
23 be neatly attired and shall conduct themselves at all times in a
them and shall be of good moral character.
24 courteous and businesslike manner. All personnel at the facility
25 shall be covered under the Workers' Compensation Act of the State
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Lessee shall require that any employee, agent or
of California.
2 licensee of any independent contractor of Lessee performing work
3 at the facility be covered by the Workers' Compensation Act of
4 the state of California.
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8.
Lessee and City shall
Nondiscrimination by Lessee.
6 not in the performance of service under this agreement
7 discriminate against any employee or applicant for employment
8 because of sex, race, color, creed, national origin, or handicap
9 and shall not discriminate in the providing of service hereunder
10 against any person on the basis of sex, race, color, creed,
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11 national origin, or handicap.
9.
Lessee Rights and status.
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(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. Assignment Prohibited.
The rights and privileges
21 given to the Lessee are not assignable in whole or in part or by
22 operation of law and any such attempted assignment shall be
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This provision may be
24 waived only with the express written consent of the Mayor and
invalid and of no legal force or effect.
25 Common Council of the City of San Bernardino.
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11.
Subleases, Concessions, Licenses, Contracts.
The
2 provisions of Section 10 shall not prohibit Lessee from entering
3 into concessions, licenses or contracts for the operation of any
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portion of the business conducted on the premises.
Each
5 concession, license or contract that is entered into by Lessee
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shall be subject to the provisions of this agreement.
A copy of
7 any concession license or contract shall be placed on file with
8 Director.
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12.
Lessee shall have the right to sell,
10 display and maintain advertising on the inside of the outfield
Advertising.
11 fence of the facilities, a scoreboard, and on signs which may be
12 attached by Lessee to the back of the bleachers on the premises.
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13. Access to Premises.
(a)
Lessee shall have full and unimpaired access to
field facilities at all times between March 1 and
September 15 of 1990, 1991, and 1992; and, if Lessee
exercises its option to extend this agreement, Lessee shall
enjoy year-round access to maintain and access an office on
the premises.
Lessee shall also enjoy such access between
March 1 and September 15, 1993.
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 following
purposes:
(1 )
To determine whether the premises are in
good condition and whether Lessee is complying with
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its obligations under this lease.
City shall
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exercise reasonable discretion as to the time and
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manner of making said determination.
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(2)
To do any necessary acts, not inconsistent
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with the provisions of this agreement, including
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maintenance, and any restoration to the facilities
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that City has the right or obligation to perform.
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(3)
To use the areas designated on Exhibit "B"
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for park storage.
(4) Special events including but not limited to
Twin County All-Star Baseball Series, C.r.F. High
School Playoffs, California State University
"Coyotes" Baseball team, et cetera.
14. Community Uses.
( a )
Lessee shall have the right of
approval of 8.11 contracts, licenses or
permits entered into by the Director for
the use of the facilities, between March 1
and September 15, 1990, 1991, 1992 (and
1993 if the option is exercised) 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 to California State University, San
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Bernardino "Coyotes" baseball team, and
Twin County Baseball Series and C.r.F. High
School Playoffs and thereafter to the
general public on a first come, first serve
basis.
(b)
During the term of agreement Lessee
shall have the right of first refusal as to
the operation of all concessions during any
and all events in facility. Director shall
notify Lessee of any planned community
event at least 60 days prior to date of
such event.
Lessee shall thereafter have
30 days in which to notify Director in
writing, of its intent to refuse the
operation of concessions for that event.
City shall be entitled to 5% of the gross
receipts from all concessions conducted
pursuant to this provision.
15. Nuisances Prohibited.
(a)
Lessee shall not use the premises, any part thereof,
21 or permit them to be used for any purpose or purposes other than
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Lessee shall not do or permit any act or
as specified herein.
23 thing to be done upon the premises which constitutes a nuisance
24 or which may unreasonably disturb the quiet enjoyment of City or
25 any resident of City on adjacent or neighboring property.
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(b)
Lessee shall at its own expense attach and maintain a
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governor on the controls of its sound system.
Said governor
2 shall be at all times maintained at a level mutually agreed upon
3 by Lessee and City.
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(c) Lessee further agrees, that within 72 hours of receipt
5 of a written notice from the City that a nuisance exists, to
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abate or otherwise cause said nuisance to be cured.
In the event
7 Lessee has not (a) taken corrective action within 72 hours, or
8 (b) filed an appeal with the Mayor and Common Council within 72
10 of the Lessee without any liability whatsoever to City for
9 hours, then City may enter and abate said nuisance at the expense
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monetary loss or anticipated profits of Lessee or others.
An
12 appeal to the Mayor and Common Council must be made in writing
13 and be received by the City Clerk, San Bernardino, California,
14 within 72 hours after Lessee received notice of said nuisance.
15 This section shall not be construed so as to prohibit immediate
16 enforcement by police or other authorized city official, of any
17 municipal code, ordinance or other applicable law.
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19 the facility parking lot except by specific resolution of the
16. Parking Lot Rates.
Lessee shall not charge for use of
20 Mayor and Common Council of the City of San Bernardino.
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17.
Indemnification and Hold Harmless.
The Lessee shall
22 and hereby agrees to defend, indemnify, save and hold harmless
23 the City, its agents, officers, employees, contractors and
24 invitees from any and all losses or damage and from any and all
25 liability, suits, actions or claims brought or made by any
26 person or persons, arising or resulting from any and all
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1 activities and operations of Lessee, Lessee's agent, employees,
2 contractors or invitees in and about the premises and/or arising
3 out of the use of said facilities by Lessee, Lessee's agents,
4 employees, contractors or invitees and for injury or damage to
5 persons or property about or within said facilities while Lessee,
6 Lessee's agents, employees, contractors or invitees are occupying
7 said facilities for any reason or in any fashion except when such
8 loss or damage is the proximate result of the negligence of
9 lessor's, agents, employees or contractors.
10 18. Liability Insurance Coverage.
11
(a)
The Lessee, at Lessee's own cost and expense, shall
12 maintain throughout the term of this agreement:
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A policy or policies of Comprehensive
( 1 )
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 limitation liability of FIVE
MILLION DOLLARS ($5,000,000) and including 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
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also provide coverage for the continual use
of office space at the premises.
ii)
Broad Form Contractual Liability.
iii)
Broad Form Property Damage.
iv) 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.
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).
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(2) .
A policy or policies of Comprehensive Vehicular
2 Liability insurance with a minimum limit of liability of One
3 Million Dollars ($1,000,000) Combined Single Limit for bodily
4 injury and property damage with an aggregate minimum limit of
5 liability of five million dollars ($5,000,000) and which
6 includes coverage for non-owned and hired vehicles and which
7 provides Uninsured Motorist coverage according to minimum state
8
In the event Lessee acquires owned or leased
requirements.
9 vehicles, then Lessee shall immediately obtain equivalent
10 coverage for such vehicles.
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Each policy providing coverage as required by
(b)
12 subparagraph (a) above, must have endorsements providing:
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(1 )
That the City of San Bernardino, its officers,
agents, employees, contractors and invitees are additional
insured 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
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or her designee, City of San Bernardino, 300 North
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"D" Street, San Bernardino, California 92418, before
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cancellation or reduction in coverage for any reason.
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If the Lessee engages another party to provide the
(c)
5 operation of refreshment, souvenir and/or other concessions, as
6 permitted hereinabove, the Licensee shall also cause that party
7 or parties so engaged, at said party's or parties' own cost and
8 expense, to obtain and to keep in force throughout the term of
9 this agreement, a policy or policies of public liability
10 insurance (including products liability coverage) separately
11 providing limits and coverage as aforesaid arising out of each
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such concessionaire's operations.
Before any person other than
13 Lessee operates any refreshment, souvenir or other concession,
14 Lessee shall notify City of the name and business addresses of
15 such concessionaire, and obtain and file with City such
16 concessionaire's policy and/or certificates as are herein
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17 specified.
19.
Injunction.
19
It is hereby understood and agreed that, in addition to any
20 other damages as may be hereinafter set forth, that City shall
21 suffer additional damages if Lessee moves to a location outside
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the City limits during the life of this agreement.
It is agreed
23 that such damages are difficult or impossible to calculate
24 precisely at this time but that $1,000,000.00 is a reasonable
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estimate of such damages.
In consideration of the above, Lessee
26 hereby agrees that if Lessor reasonably determines that it is the
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1 intention of Lessee to move to a location outside the City limits
2 during the life of this agreement, without the consent of City,
3 City may proceed to Superior Court and there obtain a permanent
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injunction against such move.
Lessee hereby specifically waives
5 any rights it may now or hereafter have to oppose such
6 injunction, and, in addition to any other cost to be paid under
7 this agreement, Lessee shall pay all City's costs of seeking
8 and/or obtaining such injunction and, shall pay such costs
9 without reference to the outcome of such litigation.
20. Workers' Compensation Insurance Coverage.
(a)
The Lessee, at Lessee's sole cost and expense, shall
12 provide, pay for and maintain throughout the term of its lease, a
13 policy providing workers' compensation insurance coverage with
14 the statutory limits of liability as set forth by the laws of the
15 State of California, and including not less than $500,000,
16 Employer's Liability, applicable to employees, agents and
17 volunteers of Lessee, sub-lessees or assignees.
18
(b)
The policy shall be endorsed to waive the right of
19
subrogation against the City.
The policy also shall be endorsed
20 to provide that not less than thirty (30) days' written notice
21 shall be given to the City Administrator or his or her designee
22 City of San Bernardino, 300 North "D" street, San Bernardino,
23
California 92418, before
cancellation or reduction in coverage
24 of any nature or for any reason.
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21. Evidence of Coverage.
(a)
Except as otherwise provided herein, each policy
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1 obta~ned by the Lessee to comply w~th the prov~s~ons of th~s
2 agreement must have an effect~ve date no later than the
3 commenc~ng date of th~s agreement and the named ~nsured on each
4
po1~cy must be identical to the Lessee in th~s agreement.
The
5 Lessee agrees to furn~sh evidence, acceptable to the C~ty, that
6 the ~nsurance requ~rements of this agreement have been fulfilled.
7 Such ev~dence is to be placed on file by the Lessee w~th the c~ty
8 Adm~n~strator or h~s or her des~gnee, City of San Bernard~no, 300
9 North "D" Street, San Bernard~no, California 92418.
(b)
No occupancy or use of c~ty's property or fac~l~t~es
11 shall be made by the Lessee, Lessee's agents, contractors,
12 employees or inv~tees, under the prov~s~ons of this agreement
13 unt~l ev~dence acceptable to City Adm~n~strator or h~s or her
14 des~gnee that the aforesaid insurance requ~rements have been
15 fulf~lled has been received by the City Admin~strator or h~s or
16
her des~gnee.
Each policy, binder or certificate of insurance,
17 ~s subject to the approval of c~ty Administrator or his or her
18
Should any of
19 the ~nsurance requ~rements set forth ~n this agreement not be
des~gnee as to content, form and issuing company.
20 fu1f~11ed by the Lessee in a manner acceptable to c~ty
21 Adm~n~strator or h~s or her designee as prov~ded ~n th~s
22 agreement, sa~d Risk Manager may purchase any or all of the
23 ~nsurance required to correct such deficiencies and the Lessee
24 and Ind~v~duals agree that the premium incurred therefor shall
25 const~tute an add~tional fee to be paid by the Lessee to the c~ty
26 upon demand.
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On or before March 15, 1990, a certified, true and
(c)
2 correct copy of each policy providing all or part of the
3
insurance coverage required by Paragraph 18 above,
liability
4 together with all required endorsements, and a certificate of
5 insurance together with the required endorsement for the workers'
6 compensation coverage required by Paragraph 20 above, must be
7 received directly from the issuing company by the City
8 Administrator or his or her designee.
9
During the first thirty (30) days coverage of any
(d)
10 policy obtained by the Lessee to fulfill requirements of this
11 agreement, evidence may be in the form of an insurance binder;
12 provided that any such binder must include language to fulfill
13 the requirements, including endorsement requirements, in addition
14 to the normally accepted items in a binder, such as, but not
15
1imi ted to:
coverage, limits of liabili ty, date coverage was
16 effective, expiration date of binder, name of insuring company
17 and signature of authorized company representative.
18
22.
Ci ty Not a Bai lee.
It is further hereby understood
19 and agreed that the City in no way purports to be a bailee and is
20 in no way responsible for lost, stolen or damaged property of
22
21 Lessee, its agents, employees, concessionaires or invitees.
Lessee hereby acknowledges
23.
Possessory Interest Tax.
23 and understands that this agreement may create a possessory
24 interest subject to property taxation pursuant to California
25 Revenue and Taxation Code Section 107, and that Lessee may be
26 subject to payment of property taxes levied on such interest, and
27
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1 that such tax payment shall not reduce any monies due the City
2 hereunder and any such tax shall be the liability of and be paid
3 by the Lessee.
4
24.
Compliance With Orders, Ordinances and Laws.
The
5 Lessee shall at all times and continuously operate in full
6 compliance with all Federal, state and local laws, statutes and
7 ordinances; all orders of the Health Officer of the County of San
8 Bernardino; all directives of the Director; and shall grant
10 of the State Board of Health or the County's Health Officer, or
9 access for inspection purposes to any authorized representative
11 any authorized representative of the Director.
12
Lessee shall keep the
25.
Liens and Encumbrances.
13 premises and all structures and improvements situated thereon
14 free from any liens or encumbrances arising out of any work
15 performed, material furnished, or obligations incurred by Lessee,
16 or from any other cause.
17
18
26. Capital Improvements.
( a )
City hereby agrees to provide the
19 following capital improvements to facility during the term of
Ci ty Agrees:
21
20 this agreement.
(1 )
Parking Lot Improvements - City agrees to
22
23
24
25
26
27
28
provide parking lot improvements to the unpaved
portion of the main parking lot as identified on
Exhibit "S" attached hereto and by this reference
made a part hereof.
Such improvements shall include
grading, overlay, lighting and striping.
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10
1
(2 )
Seating and backstop improvements - City
2
agrees to provide approximately 230 additional
3
theatre style seats.
In conjunction with the
4
installation of the seating, the backstop may be
5
permanently altered consistent with a plan for such
6
alteration approved by lessee and the Director.
7
City shall not under any circumstances expend more than
8
$36,000 for such seating.
Such funds shall be expended as
9 provided in San Bernardino Municipal Code Chapter 12.20.
(b). Lessee agrees:
In contemplation of this agreement,
12
11 Lessee agrees to:
Rent, lease, or furnish additional
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
( 1 )
(i)
rest room facilities sufficient to accommodate full
attendance capacity on a ratio of one commode for
every 200 spectators.
(ii) Rental Credit.
City hereby agrees to
grant an annual credit in the form of a reduction in
the guaranteed annual minimum fee to be received from
Lessee as an offset against Lessee's costs of rental
of such additional portable restrooms to be placed at
facility.
Said credit shall be in the amount of
$10,000.
Such credit shall be compensation for
City's portion of any costs for hook-up materials,
maintenance, custodial care and any paper stock and
sanitary and cleaning supplies associated with the
use of such restroom facilities. The credit shall be
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10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
applied in equal monthly increments against the fee
2
payments to be made by Lessee to City.
Should Lessee
3
not undertake such costs or should such costs
4
otherwise be paid by persons not a party to this
5
agreement, said credit may be reduced in an
6
appropriate amount.
7
(2) All permanent capital improvements provided
8
hereunder shall become the property of the City.
9
Upon termination of this agreement for reasons as set
forth herein, except expiration of the term of the
agreement, City shall recover its costs for all
capital improvements made hereunder in the manner set
forth in Section 19 hereof.
(c) Rent for Use of Clubhouse.
In addition to any other sums which they are
required to pay pursuant to the agreement, Lessee
agrees to pay to City a rent of fifteen hundred
dollars ($1,500.00) per month for use of clubhouse
facilities by Lessee.
Lessee shall pay minimum of
$9,000.00 per year rental for use of such by Lessee.
All rent shall be due and owing on April 15 of each
year. Payment of the miniwum rent may be made in six
equal installments beginning on April 15 of each year
during the term of this agreement and thereafter on
the 1st day of each month. Payments for any
additional months of rent shall be due and owing on
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1
the 1st day of the month following that in which the
2
One day's use of the facility creates
rent accrues.
3
the obligation to pay for the entire month.
Lessee
4
shall be entitled to year-round use of the storage
5
area as shown on Exhibit "B" at no additional cost.
6
27. Staffing and Cleanup.
7
( a)
Lessee shall provide all event personnel, including,
8 without limitation, ticket sellers, ticket takers, ushers,
9 clubhouse matrons, clubhouse janitors, medical persons,
10 switchboard, sound and scoreboard persons, ballfield preparation
11 personnel, and other supervisory personnel, and all other
12 personnel reasonably necessary for the operation of the premises
13
The number and type of such
for the events held therein.
14 personnel shall be based upon the number of spectators and the
16
15 type of event.
(b)
City shall provide, at its expense, stadium clean up
17 to include pick up and removal of all litter and debris from
18 stadium, stadium parking lot and adjoining areas. Clean up shall
19 be provided, at a minimum, after each home game and prior to the
20 commencement of each home game 3~aRB and prior to and after any
21 event otherwise held at the facility pursuant to this agreement.
22 Clean up shall include washing down the bleachers as necessary.
23
(c) If City should provide any of the labor or ei services
24 described in subparagraph (a) above, Lessee aRB shall reimburse
25 City for its labor, materials, supplies and administrative
26 overhead costs.
27
28
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1
28. utilities and Additional Services.
2
(a)
City shall make arrangement for and pay for all
3 utilities furnished to or used at facilities for any use covered
4 by the agreement including, without limitation, gas,
5 electricity, water and trash collection, and for all connection
6
Except, Lessee shall be responsible for all costs of
charges.
7 telephone service, including connection fees, service charges
8 and user taxes.
9
(b)
At Lessee's request, City may provide, at the sole
10 discretion of the Director, or her designee, additional services
11 and supplies in support of the presentation of any of the events
12
Lessee shall reimburse City for the labor,
herein contemplated.
13 materials, supplies and administrative overhead costs incurred in
14 providing such services and supplies.
15
Lessee shall be responsible for providing
29.
Security.
16 all reasonably necessary security at each and every event held by
17 Lessee at the facility under the provisions of this agreement.
18 The number and type of such personnel shall be based upon the
19 type of event and the number of spectators in determining
20 reasonably necessary security.
21 Lessee shall provide traffic control and security in the
22
Traffic control and
23 security are to be provided at the discretion of the Lessee
stadium and parking lot at its expense.
24 except when the Director, in the exercise of her sole discretion,
25 determines that such is necessary as a matter of public safety.
26 / / /
27
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10
1
30. Maintenance and Repair.
2
Lessee agrees to maintain all equipment at
(a) General.
3
City agrees to maintain all capital improvements at
facility.
4 facility, save that City shall not be responsible for the
5 scoreboard to be provided by Lessee until such time as such
6
scoreboard is owned free and clear by the City.
Lessee shall be
7 responsible for maintenance of the scoreboard until such time as
8 the scoreboard is the unencumbered property of the City.
9 Further, Lessee hereby agrees to assume responsibility for and to
undertake all maintenance of the backstop.
And upon termination
11 of this agreement, Lessee shall at its expense, restore the
12 backstop to its original condition or a condition otherwise
13 approved by the Director.
14
15
16
17
18
19
20
21
22
23
24
(1 )
Lessee agrees to accept facility with such
capital improvements as is promised herein by the
City.
City agrees to provide existing and new
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 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
25 personal property of Lessee.
26 / / /
27
28
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1
(b) Routine Maintenance and Repairs.
Except as otherwise
2 provided herein, City shall maintain, in good and safe condition,
3
all portions of the facility.
C.ity's routine maintenance shall
4 include, without limitation, and shall not be limited to:
5 replacing light bulbs in iloodlights, field lights and security
6 lighting; manual broom or vacuum cleaning the parking lot,
7 grandstand and bleachers, and cleaning the public restroom;
8 repair of asphalt surfaces including parking lot and driveways;
9 landscape maintenance to include fertilization and weed control
10 around the perimeter of the facility and both sides of perimeter
11 fencing, all aspects of playing field maintenance, exclusive of
12 game preparation; bleacher repairs; irrigation system repairs
13 including water fountains; plumbing repair such as sewage
14 stoppages; electrical rnpilirs i~cluQjns junction box blowouts and
15 painting for cosmetic purjJoc;cs.
16
17 with such written procedures as snall bo established by Director
(c) EmergencLr'1,~i--,,,-~~e}12I~-,,e. LCEisce hereby agrees to comply
18 for obtaining emergency ~aint2ncnce or repair of any property or
19
equipment to be maintained by City under this agreement.
Lessee
20 shall be liable for all costs incurred in a manner consistent
22
21 with such procedures.
31. Alterations.
23
(a)
Except as otherwise specifically provided herein,
24 Lessee shall not make any structural or nonstructural alterations
25
to the facility without the
Ci-ty's cons0nt.
The Director may
26 act for the City in givinq such consent.
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28
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2S
1
(b)
City may elect, within thirty (30) days before the
2 expiration of the term or at the time of any other surrender of
3 such facility, to require Lessee to remove any alterations that
4
Lessee has made to the facility.
If City so elects, Lessee, at
5 its cost, shall restore the facility to the condition it was in
6 at the commencement of the term less normal wear and tear, within
7 sixty (60) days after notice of election is given.
8
32. Construction Bond Requirements.
In the event that
9 alterations are made by Lessee in accordance with the provisions
10 of this agreement or in the event that individual maintenance and
11 repairs exceeding Five Thousand and No/lOO Dollars ($5,000.00)
12 are made by Lessee as a requirement of this agreement, Lessee
13 shall provide such faithful performance bonds, payment bonds and
14 labor and material bonds as City may demand and the terms and
15 provisions of the construction or maintenance contract to
16 accomplish any such alterations, maintenance or repairs to the
17 facility shall be subject to the approval of the Director and the
18 City Attorney.
19
20 shall repair, replace, and maintain the structural integrity of
33. structural Restoration and Repair. City, at its cost,
21 the following:
22
23
(a)
The structural parts of the building and permanent
24 fixtures and other improvements that are a part of the facility,
25 including, without limitation, the foundations, bearing walls,
26 sub-flooring, ceiling, roof, window frames (not including screens
27
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10
1 and panes), gutters and downspouts, light poles, grandstands, and
2 concession stands.
3
(b) The unexposed electrical, plumbing and sewage systems,
4 including, without limitations, those portions of the systems
5 lying outside the facility.
6
(c) City shall repair the facility if it is damaged by (1)
7 causes outside the facility over which Lessee has no control; (2)
8 acts or omissions of City or its authorized representatives; or
9 (3) City's failure to perform its obligations under this
11 for City's total cost of repairs made necessary by the activities
agreement.
Lessee shall, and hereby agrees, to reimburse City
12 and operations of Lessee, Lessee's agents, employees, contractors
13 or invitees.
14
15
34. Destruction.
(a) If, during the term of this agreement, the facility is
16 totally or partially destroyed from any cause, rendering the
17 facility totally or partially inaccessible or unusable and if,
18 with reasonable diligp.nce, the restoration can be completed
20 City shall restore the facility to substantially the same
19 within ninety (90) working days after the date of destruction,
21 condition as it was in immediately before destruction, and such
22 destruction shall not terminate this agreement.
23
If such destruction occurs during the playing season
(b)
24 of lessee, City shall have 15 calendar days following date of
25 destruction within which to notify lessee of City's determination
26 of its ability to repair the facility within the time set forth
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28
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1
in subparagraph (a).
If such destruction occurs at any other
2 time, City shall have 30 calendar days within which to provide
3 such notice.
4
(c)
Upon notice that City in the reasonable exercise of
5 its discretion determines that restoration cannot be made in the
6
time stated in subparagraph (a).
Lessee may then terminate this
7
agreement immediately by giving written notice to City.
If
8 Lessee fails to terminate this agreement, within 15 calendar days
9 of date of such notice, City, at its election, can either
10 terminate this agreement, or restore the facility within a
11 reasonable time. If within 15 calendar days following date of
12 expiration of the period for lessee's notice of its election to
13 terminate, City notifies lessor of its intent to restore, this
14 agreement shall continue in full force and effect.
15
When such destruction occurs within 90 days of the
(d)
16 last day of the then current baseball season, Lessee may conduct
17 the remainder of its home games during that season within some
18 other facility without impairment of any of its rights hereunder.
19
20
(e) The time periods herein set forth shall not include
21 for loss of facility is under evaluation by an insurer of the
time for evaluation of loss by any insurer.
Notice that a claim
22 facili ty shall toll the time for notice of intent to restore.
23 City shall not be responsible for any losses incurred by lessor
24 proximately arising from a delay in the restoration of the
25 facility which occurs for reasons beyond the control of the City.
26 / / /
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1
35. Time of Essence/Breach.
Where performance of a
2 covenant is specified herein to be on or before a certain date,
3
time shall be of the essence of said covenant.
Performance by
4 the Lessee of each and every condition, covenant or provision of
5 this agreement is material, the breach of which shall constitute
6 a material breach of this contract for which City's Director may
7 terminate this agreement; provided, however, that any such
8 termination by said Director shall not be effective until not
9 less than thirty (30) days after notice of termination by said
10 Director to the Lessee and said Director may withdraw and cancel
11
such termination if, in the sole discretion of City:
(1) the
12 breach is cured within the thirty-day period; or (2) the nature
13 of the breach is such that it cannot be cured within such thirty-
14 day period but the Lessee promptly commences to correct such
15 breach and proceeds to correct the same as promptly as reasonably
16 practicable.
17
As between Lessee and
18 City, if any action at law or in equity shall be brought to
36. Attorney's Fees/Legal Costs.
19 enforce or interpret the terms of this agreement, including costs
20
cash the proceeds of any security provided
of reduction to
21 hereunder, the prevailing party shall be entitled to recover from
22 the other party as part of the prevailing party's costs
23 reasonable attorney's fees, the amount of which shall be fixed by
24 the court and shall be made a part of any judgment or decree
25 rendered.
26 / / /
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1
37. Waiver of Breach.
The waiver of any breach of any
2 term, covenant or condition herein contained shall not be deemed
3 to be a waiver of any subsequent breach of the same or any other
4 term, condition or covenant contained herein.
5
38. Surrender of Premises.
Upon the termination of the
6 term, Lessee shall surrender to City, the facility and all
7 Lessee's improvements and alterations, on good condition (except
8 for ordinary wear and tear occurring after the last necessary
9 maintenance made by lessee and destruction of the facility
10 covered by paragraph 34, except for alterations that Lessee has
11 the right to remove, or is obligated to remove, under the
12
13 personal property and perform all restoration made necessary by
provisions of paragraph 31.
Lessee shall remove all of its
14 the removal of said personal property and by the removal of any
15 alterations prior to the termination of the term of this
16 agreement.
17
18
39. Termination.
(a)
The City may terminate this agreement for cause
19 including but not limited to, the following occurrences:
20
21
22
23
24
25
( 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 to take possession of all or substantially
all of the assets of the Lessee or shareholders of
40% or more.
26 / / /
27
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10
11
12
13
14
1
( 2 )
Any general assignment by Lessee or
2
shareholders of 40% or more for the benefit of
3
creditors.
4
(3) Loss of the franchise.
5
(4)
Sale, transfer or hypothecation of more
6
than 10% of the baseball franchise of 10% interest in
7
Lessee whether in a single or multiple transaction
8
during the term of this agreement.
9
(5) 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,
15 on the part of the City, that this agreement is to be terminated
16 for cause and to furnish 30 days' written notice thereof to the
17
18
Lessee.
Lessee shall have the right to cure any default within
those 30 days.
Notice of tormination shall be sufficient if
19 delivered personally or if deposited in the United States postal
20 service in a postage prepaid envelope addressed as follows unless
21 a different address shall have been furnished in writing by one
23
22 party to the other party:
AS TO LESSEE:
24
25
26
27
28
AS TO CITY:
Director
Parks, Recreation and
Community Services
547 North Sierra Way
San Bernardino, CA 92401
San Bernardino Baseball Club,
Inc.
Fiscalini Field
Post Office Box 30160
San Bernardino, CA 92413
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10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
40. Effect of Termination.
2
(a) Upon termination of this agreement the following sums
3
shall immediately become due and owing from Lessee.
4
(1) The depreciated cost including cost of
5
installation and any debt incurred, of all capital
6
improvements provided by city under this agreement
7
and any preceding agreement.
All provisions of that
8
portion of any Agreement which relates to the
9
construction and installation of capital improvements
and the recovery of the costs of same from Lessee is
by this reference incorporated herein.
These
include:
i) Increased seating;
ii) Clubhouse;
iii) Such other capital improvements
as may have been provided by the
City with the approval of Lessee.
This shall not include any
capital improvement which the
City had previously included in a
plan for the improvement of any
portion of the facility.
(2) Commencing on the date of installation of
the subject improvement, depreciation of that
improvement shall be calculated using the straight
line method.
All Equipment and capital improvements
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1
shall have a 10-year life for purposes of this
2
section.
3
(3 )
Or, as an alternative to the amounts required by
4
subsection (1) above, the City shall be entitled to the
5
receipt of $200,000.00.
The City shall be entitled to the
6
receipt of the Lessor of the two amounts.
7
( b )
Any other provisions of this agreement
8 notwithstanding, upon termination of this agreement City shall be
9 entitled to utilize any security in the manner as set forth at
10 Section 19 of this agreement.
11
(c) Upon termination of this agreement, in addition to any
12 other amounts due to City hereunder, City shall be entitled to
13 receipt of any unpaid rents for the remainder of the year during
14 which such termination occurs.
15
(d)
It is hereby agreed by lessee that if this agreement
16 is terminated because of the sale or transfer of Lessee or an
17 interest therein, City shall have a lien upon the proceeds of
18 such sale to the extent of its interest as described hereinabove
19
and under any provision of this agreement.
Provided that, with
20 the prior written approval of the Mayor and Common Council, the
21 lease is transferable with no penalties and on the same terms and
22 conditions or on such terms and conditions as shall be
23 established at the time of such proposed transfer.
24
41. Community Service.
In addition to all other
25 considerations set forth herein, Lessee agrees to perform the
26 following community services during the term of this agreement:
27
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10
11
12
13
14
15
16
17
18
1
(a) Conduct a minimum of two baseball clinics a
2
year without charge for children under the age of 18.
3
Said clinics are to be scheduled at the discretion of
4
Lessee.
Director shall receive 60 days' prior written
5
notice of the date of each clinic.
6
(b)
Lessee shall provide at least one public
7
service announcement on the reader board during each
8
game.
The message shall be published without
9
charge.
Said language shall be approved by the
Director.
( c )
Provide at no cost to the City, one 30-
second radio spot for each game played, whether at
home or away.
This requirement is contingent upon
the team obtaining a contract for the radio broadcast
of its games.
42. Incorporation of Prior Agreements and Amendments.
This Agreement cont3ins all agreements of the parties with
respect to any matter mentioned herein.
No prior agreement or
20
19 understanding pertaining to any such matter shall be effective
except as otherwise incorporated herein.
This agreement may be
22
21 modified in writing only, signed by the parties in interest at
the time of the modification.
This agreement shall not be
23 construed as requiring the City to make any expenditures, other
24 than as specifically set forth herein.
25
43. Venue.
If either Lessee or City initiate an action to
26 enforce the terms hereof or declare rights hereunder, including
27
28
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34
1 actions on any bonds and/or surety agreements, the parties agree
2 that the venue thereof shall be the County of San Bernardino,
3 State of California.
4
44.
Severability.
The invalidity of any provision of
5 this agreement, as determined by a Court of competent
6 jurisdiction, shall in no way affect the validity of any other
7 provision hereof.
8
45. Captions.
Paragraph headings in this agreement are
9 used solely for convenience, and shall be wholly disregarded in
10 the construction of this agreement.
11
46. Covenant and Conditions.
Each provision of this
12 agreement performable by Licensee shall be deemed both a covenant
13 and a condition.
14
47. Notice.
Except as otherwise provided herein, any
15 notice, statement, demand, request, consent, approval,
16 authorization, offer, agreement or communication, that either
17 party hereto desires, or is required to give to the other party,
18 shall be in writing and shall be sufficiently given and served
19 upon the other party if delivered personally, or if sent by
21
20 United States postal service, first class postage prepaid, and
addressed as specified in paragraph 39 above.
Ei ther party
22 hereto may change its address for purposes of this agreement by
24
23 giving the other party appropriate written notice of the change
of address.
Notice shall be deemed to be communicated within
25 forty-eight (48) hours of the time of mailing, if mailed to the
26 following:
27
28
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10
11
12
13
14
15
20
21
22
23
24
1
2
AS TO LESSEE:
AS TO CITY:
3
San Bernardino Baseball Club,
Club, Inc.
Post Office Box 30160
San Bernardino, CA 92413
4
Director
Parks, Recreation and
Community Services
546 North Sierra Way
San Bernardino, CA 92401
5
6
48. No Third Party Beneficiaries of Agreement. Any
7
insurance coverage required herein is for the protection of City,
8
its officers, agents, employees, contractors, and invitees. No
9
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.
49. Vendor Consideration.
Lessee hereby agrees to give
serious consideration to vendors with principal offices in the
City of San Bernardino in the award of contracts for the
provision of goods and services.
16
50. Accounting.
17
(a) Wi thin sixty (60) days after the end of
18
each California League season during the term of this
19
lease, Lessee shall file \'lith the Parks, Recreation
and Community Services Director of City, an
accounting sho\'ling the gross receipts from use of the
facility as herein defined for each such California
League season.
Said accounting statement shall
contain an appropriate certification that all gross
25
receipts of the previous year have been duly and
26
properly reported to City and that the statements
27
28
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36
1
filed with the City are in accord with Lessee's
2
reports of profits and losses to its owners and its
3
Federal Income Tax Return.
4
(b)
Lessee shall make such accounting and give
5
such notices as are necessary to implement Section
6
5(a)(2)(a) of Agreement entitled "Payment of
7
Percentage of Gross Receipts".
8
51. Records.
9
The term "records" as used herein shall include, but
10 is not confined to, sales slips, cash register tapes, bank
(a)
11 deposit receipts, sales tax returns, sales books, rent receipts,
12 sales contracts, service contracts, books and ledgers.
13
(b) Lessee shall keep true and accurate books and records
14 showing all of his business transactions conducted on or from the
15 premises in accounts separate from any other business which
16
Lessee may have or conduct.
All such records shall be retained
17 on the premises or at such other place in San Bernardino County
18 as is approved by City, provided that Lessee may temporarily
19 remove the same as may be necessary for legal or accounting
21
20 purposes.
(c) City shall have the right, after reasonable notice and
22 at any reasonable time, from time to time, to examine and audit
23 the books and records of Lessee and his sublessees,
24 concessionaires and lic(msees, including California Sales Tax
25 Records, and to make copies of same and of any written agreements
26 between Lessee and such sublessees, concessionaires, and
27
28
JFW:br
12/4/89
37
1
licensees of Lessee.
Providing further, that City reserves the
2 right to examine all such books and records at any time during
3 the period following the regular baseball season (September
4 15th).
5
(d)
Lessee shall provide the City with all information
6 needed to exercise its rights under this section of agreement,
7 and shall not unreasonably withhold any requested information.
8
52.
Successors Bound.
This agreement shall be binding
9 upon and inure to the benefit of each of the parties and their
10 respective legal representatives, successors, heirs and assigns.
11
12
13
14
15
16
17
18
19
20
21
22
DATED:
ATTEST:
CITY OF SAN BERNARDINO
BY:
W. R. HOLCOMB, Mayor
City Clerk
SAN BERNARDINO BASEBALL CLUB, INC.
BY:
Secretary
BASEBALL NEGOTIATING TEAM
BY:
23 Chairman
Approved as to form
24 and legal content:
25
26
27
28
JAMES F. PENMAN,
City ~ttorney
? /~?0~
By: ~
fiJbr
i214/89
38
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