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CITY F SAN BERNARDINC . RE( JEST FOR COUNCIL .CTION
From: Anni e F. Ramos, Di rector Subject: RESDLUTIDN DF THE CITY OF SAN BERNARDINO
AUTHORIZING THE EXECUTION OF A LEASE
Dept: Parks, Recrea-:ion & Community Servi ces AGREEMENT BY AND BET\4EEN THE CITY OF SAN
BERNARDINO AND THE SAN BERNARDINO PRIDE,
Date: August 13, 1990 INC.
Synopsis of Previous Council action:
None.
Recommended motion:
Adopt the Resolution.
Contact person:
John A. Kramer
Phone:
5031
Supporting data attached: Staff Report
Ward:
FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.)
(Acct. Description)
Finance:
Council Notes:
75-0262
Aaenda Item No.
3t/
CITY
F SAN BERNARDINC . RE( 'JEST FOR COUNCIL .CTION
RESOLUTION OF THE CITY OF STAFF REPORT
SAN BERNARDINO AUTHORIZING
THE EXECUTION OF A LEASE AGREE-
MENT BY AND BETWEEN THE CITY
OF SAN BERNARDINO AND THE
SAN BERNARDINO PRIDE, INC.
The Lease Agreement between the City and the San Bernardino
Pride, Inc. provides for the use of Fiscalini Field to
participate in the Senior Professional Baseball Association.
The term of the lease is one year from November 1, 1990
through October 31, 1991. A one year renewable option allows
the city to renegotiate conditions of the lease including
rental costs.
The lease will allow the Pride to conduct 28
the season beginning the week of November 19,
the week of February 4, 1991. Additionally,
conduct a two week training camp in early
Pride will also be allowed to furnish, at
office trailer on the premises in order to
round business office.
home games with
1990 and ending
the Pride will
November. The
its expense, an
operate a year-
Reimbursement to the City will be a total of $12,500. This
fee is on a cost basis only and covers all of the City's
costs for the field use and associated services ($11,400) and
for utilities on the office trailer ($1,100). The renewable
option will allow the city to increase its fees in the second
year based on the success of Pride.
8/13/90
JAK:u
(STAFFRE:PRIDE)
75-0264
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1
RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZ ING THE
EXECUTION OF A LEASE AGREEMENT BY AND BETWEEN THE CITY OF SAN
3 BERNARDINO AND THE SAN BERNARDINO PRIDE, INC.
4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
5
SECTION 1.
The Mayor is hereby authorized and directed to
6
7
execute on behalf of said City a lease agreement by and between
8
the Ci ty of S an Bernardino, a Charter Ci ty, and the San
9
Bernardino Pride, Inc., a California corporation, attached hereto
10
as Exhibit "A" and incorporated herein.
SECTION 2.
The authorization to execute the above-
11
12
referenced agreement is rescinded if the parties to the agreement
13
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
day of
, 1990, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ESTRADA
REILLY
FLORES
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
City Clerk
DAB/ses/Pride.res
August 13, 1990
1
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF A LEASE AGREEMENT BY AND BETWEEN THE CITY OF SAN
2 BERNARDINO AND THE SAN BERNARDINO PRIDE, INC.
3
4
The foregoing resolution is hereby approved this
day
of
, 1990.
5
6
W. R. Holcomb, Mayor
7 City of San Bernardino
8 Approved as to
form and legal content:
9
JAMES F. PENMAN,
10 City Attorney
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I)
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DAB/ses/Pride.res
August 13, 1990
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1
LEA S E
2
AGREEMENT
3
THIS LEASE AGREEMENT is executed at San Bernardino,
4
California, this
day of
5
19
, by and between the CITY OF SAN BERNARDINO, a Charter City
6 (hereinafter" Ci ty" ), and the SAN BERNARDINO PRIDE, INC.. a
7 California corporation (hereinafter "Lessee").
8 WIT N E SSE T H:
9 WHEREAS. the City Council of the City of San Bernardino has
10 the authority to enter into a Lease Agreement regarding all or
11 any portion of City-owned property devoted to park, amusement or
12 recreation purposes; and,
13
WHEREAS. Lessee has acquired a franchise to operate a
14 professional baseball team as a member of the Senior
15 Professional Baseball Association; and.
16 WHEREAS. it is the intention and desire of the parties
17 hereto to enter into a Lease Agreement regarding the use of
18 Fiscalini Field, being a portion of the public park and
19 recreation area owned by the City of San Bernardino, for the
20 purpose of conducting and carrying on a professional baseball
21 franchise thereon and the operation of related activities; and,
22 WHEREAS. City desires to contract with Lessee for Lessee to
23 operate the facility in accordance with the provisions
24 hereinafter contained and. the Lessee desires to contract with
25 the City for the privileges granted under said Lease as
26 hereinafter contained:
27 / / /
28 / I I
DAB/ses/Pride.lse
August 9, 1990
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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 purpose
9 of granting Lessee the nonexclusive use of the facility. Lessee
10 is also entitled hereunder to sufficient space for the operation
11 of a business office, said office to be provided by Lessee.
12
3.
Term of Lease.
The aforementioned lease shall
13 commence on November 1, 1990, and terminate on October 31, 1991.
14 At the option of the Lessee, this agreement may be renegotiated
15 and extended to October 31, 1992, upon terms as hereinafter set
16
forth.
All terms not specifically amended at the time of any
17 such extension shall remain as originally set forth.
4.
Use of Facility by Lessee for Non-
Baseball Related Activities.
(a)
City agrees that the facility shall be made
21 available to Lessee not to exceed 10 days in each baseball season
22 during the term of this agreement for non-baseball related
23
24
activities.
The schedule, events and sale of alcohol at such
events shall be subject to City Council approval.
Request for
25 such an approval shall be made thirty days in advance of any such
26 activity.
27
28
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DAB!ses!Pride.lse
August 9, 1990
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1
( b )
Notwithstanding any other terms of this
2 agreement, Lessee shall bear all costs of the non-baseball
3 activities in the manner as set forth in Section 27 paragraphs a
4 and c and Section 29 of agreement. Said costs shall include the
5 cost of utilities for the event.
6
(c)
In addition to any other sums set forth herein,
7 Lessee shall pay to the City 5% of the gross receipts received by
8 Lessee for each such non-baseball activity.
9
5.
Payment by Lessee to City.
10
(a) Guaranteed Minimum Annual Fee.
Lessee agrees to
11 pay to the City as fees for the lease herein granted for the use
12 of Fisca1ini Field a fee of $11,400 for the facility for the
13 1990-91 season and pre season and $1,100 for the utilities for
14 year around use of the office for a total fee of $12,500.
15
(1 )
Payment.
All payments required hereunder
16
are due and owing as of November 1, of each year.
Said payment
18 December 1, and the following January 1 and February 1. Failure
17 shall be made in four equal installments of $3,125 on November 1,
19 by Lessee to make such payments in the amount of and at the times
20 hereinabove specified shall constitute a. material breach of this
21 agreement.
22
23
24
(b) Charges on Past-Due Payments -Liquidated
Damages.
25 forth hereinabove by the due dates set out herein, Lessee shall
(1) If Lessee fails to make the payments set
26 pay a charge on such past-due amounts at the prime rate plus 2%
27 and no less than 10% per annum adjusted as of December 1 of each
28 year.
DAB/ses/Pride.lse
August 9, 1990
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This provision shall not be deemed as a
2 forbearance on the payments of such amounts, and City retains any
3 and all remedies for nonpayment of such amounts.
4 This provision is an estimate of the anticipated
5 damage to be suffered by City for nonpayment of such amounts and
6
it is not to be construed as a penalty.
It is hereby agreed that
7 it would be difficult or impossible to determine the precise
8 amount of damages to the City in the occurrence of a breach of
9 the covenant to make timely payments.
10
6.
Quality of Operations.
The Lessee shall, at all
11 times, operate the facilities in a good businesslike manner and
12 incident thereto render to the public using said facilities,
13
efficient and courteous service.
In the event that the Director
14 of Parks, Recreation and Community Services (hereinafter
15 "Director") reasonably finds that service rendered by the Lessee
16 is substandard or that any other provisions of the lease herein
17 given are not being adequately performed or complied with, the
18 Lessee upon being advised of the nonperformance or noncompliance
19 shall correct any such violation, deficiency or omission within
21
20 5 calendar days of such notice. Where such notice is as to a
matter respecting health and safety,
corrections shall be made
23
22 within 24 hours.
7.
Employees.
Any and all personnel, including
24 employees, agents and representatives of Lessee and City, and all
25 independent contractors of Lessee, in conducting the operations
26 of facility, shall be qualified to perform the duties assigned to
27
them and shall be of good moral character.
Said personnel shall
28 be neatly attired and shall conduct themselves at all times in a
DAB/ses/Pride.lse
August 9, 1990
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1 courteous and businesslike manner. All personnel at the facility
2 shall be covered under the Workers' Compensation Act of the State
3
of California.
Lessee shall require that any employee, agent or
4 licensee of any independent contractor of Lessee performing work
5 at the facility be covered by the Workers' Compensation Act of
6 the State of California.
7
8.
Nondiscrimination by Lessee.
Lessee and City shall
8 not in the performance of service under this agreement
9 discriminate against any employee or applicant for employment
10 because of sex, race, color, creed, national origin, or handicap
11 and shall not discriminate in the providing of service hereunder
12 against any person on the basis of sex, race, color, creed,
13 national origin, or handicap.
14
9.
Lessee Rights and Status.
15
(a) The rights herein given to the Lessee is a lease
16 subject to the terms and conditions set forth herein.
17
(b) In addition, the Lessee, his agents, contractors,
18 and employees shall be at all times independent contractors and
19 shall not be considered agents or employees of the City.
20
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
23 invalid and of no legal force or effect. This provision may be
24 waived only with the express written consent of the Mayor and
25 Common Council of the City of San Bernardino.
26
11.
Subleases, Concessions, Licenses, Contracts.
The
27 provisions of Section 10 shall not prohibit Lessee from entering
28 into concessions (if authorized), licenses or contracts for the
DAB/ses/Pride.lse
August 9, 1990
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1 operation of any portion of the business conducted on the
2
premises.
Each concession, license or contract that is entered
3 into by Lessee shall be subject to the provisions of this
4 agreement. A copy of any concession license or contract shall be
5 placed on file with Director.
6
12.
Advertising.
Lessee shall have the right to sell,
7 display and maintain advertising on the inside of the outfield
8 fence of the facilities, a scoreboard, and on signs which may be
9 attached by Lessee to the back of the bleachers on the premises.
10
13. Access to Premises.
11
(a)
Lessee shall have full and unimpaired access to
12 field facilities at all times between November 1, 1990, and
13
February 28, 1991.
Additionally, Lessee shall enjoy year-round
14 access to maintain and access an office on the premises and, if
15 Lessee exercises its option to extend this agreement, Lessee
16 shall also enjoy such access between November 1, 1991 and
17 February 28, 1992.
18
(b)
During the above times, City and its authorized
19 representatives shall have the right to enter the facilities at
21
20 all reasonable times for any of the fOllowing purposes:
(1 )
To determine whether the premises are in
22 good condition and whether Lessee is complying with its
23
obligations under this lease.
City shall exercise reasonable
24 discretion as to the time and manner of making said
25 determination.
26
(2)
To do any necessary acts, not inconsistent
27 with the provisions of this agreement, including maintenance, and
28
DAB/ses/Pride.lse
August 9, 1990
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1 any restoration to the facilities that City has the right or
2 obligation to perform.
3
(3)
To use the areas designated on Exhibit "B"
4 for park storage.
5
(4)
Special events including but not limited to
6 Dodger Day. California State University "Coyotes" Baseball team.
7 et cetera.
8
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14. Community Uses.
(a)
Lessee shall have the right of approval of all
10 contracts. licenses or permits entered into by the Director for
11 the use of the facilities. between November 1. 1990 and February
12 28. 1991 and between November 1. 1991 and February 28. 1992. if
13 the option is exercised. at reasonable times. by community
14
groups.
Lessee shall use its best good-faith efforts to satisfy
15 the needs of the general public for the use of the facility by
16 agreeing to permits for available dates and times to California
17 State University. San Bernardino "Coyotes" baseball team. and
18 Dodger Day and thereafter to the general public on a first come.
19 first served basis.
20
(b)
The parties understand and acknowledge that
21 pursuant to that certain Agreement dated March 21. 1990. the San
22 Bernardino Baseball Club. Inc. has the right of first refusal as
23 to the operation of all concessions during events in facility.
24 Should the San Bernardino Baseball Club. Inc. refuse to operate
25 said concessions for events conducted or sponsored by Lessee.
26
Lessee may do so.
City shall be entitled to 5% of the gross
27 receipts from all concessions conducted pursuant to this
28 provision.
DAB/ses/Pride.lse
August 9. 1990
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15. Nuisances Prohibited.
2
(a)
Lessee shall not use the premises, any part
3 thereof, or permit them to be used for any purpose or purposes
4
other than as specified herein.
Lessee shall not do or permit
5 any act or thing to be done upon the premises which constitutes a
6 nuisance or which may unreasonably disturb the quiet enjoyment of
7 City or any resident of City on adjacent or neighboring property.
8
(b)
Lessee shall at its own expense attach and
9
maintain a governor on the controls of its sound system.
Said
10 governor shall be at all times maintained at a level mutually
12
11 agreed upon by Lessee and City.
(c)
Lessee further agrees, that within 72 hours of
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13 receipt of a written notice from the City that a nuisance exists,
to abate or otherwise cause said nuisance to be cured.
In the
15 event Lessee has not (a) taken corrective action within 72 hours,
16 or (b) filed an appeal with the Mayor and Common Council within
17 72 hours, then City may enter and abate said nuisance at the
18 expense of the Lessee without any liability whatsoever to City
19 for monetary loss or anticipated profits of Lessee or others. An
20 appeal to.the Mayor and Common Council must be made in writing
21 and be received by the City Clerk, San Bernardino, California,
22 within 72 hours after Lessee received notice of said nuisance.
23 This section shall not be construed so as to prohibit immediate
24 enforcement by police or other authorized city official, of any
25 municipal code, ordinance or other applicable law.
26
16. Parking Lot Rates. Lessee shall not charge for use of
27 the facility parking lot except by specific resolution of the
28 Mayor and Common Council of the City of San Bernardino.
DAB/ses/Pride.lse
August 9, 1990
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17.
Indemnification and Hold Harmless.
The Lessee shall
2 and hereby agrees to defend, indemnify, save and hold harmless
3 the City, its agents, officers, employees, contractors and
4 invitees from any and all losses or damage and from any and all
5 liability, suits, actions or claims brought or made by any
6 person or persons, arising or resulting from any and all
7 activities and operations of Lessee, Lessee's agent, employees,
8 contractors or invitees in and about the premises and/or arising
9 out of the use of said facilities by Lessee, Lessee's agents,
10 employees, contractors or invitees and for injury or damage to
11 persons or property about or within said facilities while Lessee,
12 Lessee's agents, employees, contractors or invitees are occupying
13 said facilities for any reason or in any fashion except when such
14 loss or damage is the proximate result of the negligence of
15 lessor's, agents, employees or contractors.
16 18. Liability Insurance Coverage.
17
(a)
The Lessee, at Lessee's own cost and expense,
18 shall maintain throughout the term of this agreement:
( 1 )
A policy or policies of Comprehensive
20 Liability Insurance with a minimum limit of liability of ONE
21 MILLION DOLLARS ($1,000,000) Combined Single Limit for bodily
22 injury and property damage with an aggregate minimum limitation
23 liability of FIVE MILLION DOLLARS ($5,000,000) and including the
24 following coverages:
25
26
27
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i)
Premises Operations Including
Alterations (for sports events and
stadiums). The only exclusion which
the City shall accept to this coverage
DAB/ses/Pride.lse
August 9, 1990
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is that which excludes bodily injury
2
to athletic participants only and
3
which in no way excludes spectators.
4
This coverage shall also provide
5
coverage for the continual use of
6
office space at the premises.
7
ii) Broad Form Contractual Liability.
8
iii) Broad Form Property Damage.
9
iv) Products Liability (for the sale of
souvenirs, athletic equipment and for
the sale of food and drink, if
authorized) .
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, if liquor sale is
authorized.
ix) Fire Legal Liability with a minimum
limit of $1,000,000.
DABjsesjPride.1se
August 9, 1990
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1
x)
Vendors' Coverage (provided on an "if any" basis as
2
commonly used in the insurance industry; that is, if there
3
is any exposure to the risk during the policy period).
4
(2 )
A policy or policies of Comprehensive
5 Vehicular Liability insurance with a minimum limit of liability
6 of One Million Dollars ($1,000,000) Combined Single Limit for
7 bodily injury and property damage with an aggregate minimum limit
8 of liability of five million dollars ($5,000,000) and which
9 includes coverage for non-owned and hired vehicles and which
10 provides Uninsured Motorist coverage according to minimum state
11
requirements.
In the event Lessee acquires owned or leased
12 vehicles, then Lessee shall immediately obtain equivalent
13 coverage for such vehicles.
14
(b)
Each policy providing coverage as required by
15 subparagraph (a) above, must have endorsements providing:
16
( 1 )
That the City of San Bernardino, its
17 officers, agents, employees, contractors and invitees are
18 additional insured as respects the use of the facilities.
19
(2)
That the insurance provided by the policy
20 shall be primary insurance as respects any other valid and
22
21 collectible insurance the City of San Bernardino may possess and
that any other insurance the
City does possess will be
23 considered excess only.
24
( 3 )
That the policy will act to cover each
25 insured and each additional insured as though a separate policy
26 were written for each.
27
(4)
That no less than thirty (30) days' written
28 notice will be given to the City Administrator or his or her
DAB/ses/Pride.lse
August 9, 1990
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1 designee, City of San Bernardino, 300 North "D" Street, San
2 Bernardino, California 92418, before cancellation or reduction in
3 coverage for any reason.
4
( c )
If the Lessee engages another party to provide
5 the operation of refreshment, souvenir and/or other concessions,
6 as permitted hereinabove, the Licensee shall also cause that
7 party or parties so engaged, at said party's or parties' own cost
8 and expense, to obtain and to keep in force throughout the term
9 of 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
12 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
17 specified.
18
19.
Injunction.
19
It is hereby understood and agreed that, in addition
20 to any other damages as may be hereinafter set forth, that City
21 shall suffer additional damages if Lessee moves to a location
22 outside the City limits during the life of this agreement. It is
23 agreed that such damages are difficult or impossible to calculate
24 precisely at this time but that $1,000,000.00 is a reasonable
25
estimate of such damages.
In consideration of the above, Lessee
26 hereby agrees that if Lessor reasonably determines that it is the
27 intention of Lessee to move to a location outside the City limits
28 during the life of this agreement, without the consent of City,
DAB/ses/Pride.lse
August 9, 1990
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17
1 City may proceed to Superior Court and there obtain a permanent
2
injunction against such move.
Lessee hereby specifically waives
3 any rights it may now or hereafter have to oppose such
4 injunction, and, in addition to any other cost to be paid under
5 this agreement, Lessee shall pay all City's costs of seeking
6 and/or obtaining such injunction and, shall pay such costs
7 without reference to the outcome of such litigation.
8
20. Workers' Compensation Insurance Coverage.
9
( a )
The Lessee, at Lessee's sole cost and expense,
10 shall provide, pay for and maintain throughout the term of its
11 lease, a pOlicy providing workers' compensation insurance
12 coverage with the statutory limits of liability as set forth by
13 the laws of the State of California, and including not less than
14 S500,000, Employer's Liability, applicable to employees, agents
15 and volunteers of Lessee, sub-lessees or assignees.
16
(b)
The pOlicy shall be endorsed to waive the right
of subrogation against the City.
The pOlicy also shall be
18 endorsed to provide that not less than thirty (30) days' written
19 notice shall be given to the City Administrator or his or her
20 designee City of San Bernardino, 300 North "0" Street, San
21 Bernardino, California 92418, before cancellation or reduction
23
22 in coverage of any nature or for any reason.
24
21. Evidence of Coverage.
25 obtained by the Lessee to comply with the provisions of this
(al Except as otherwise provided herein, each policy
26 agreement must have an effective date no later than the
27 commencing date of this agreement and the named insured on each
28
policy must be identical to the Lessee in this agreement.
The
DAB/ses/Pride.lse
August 9, 1990
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1 Lessee agrees to furnish evidence, acceptable to the City, that
2 the insurance requirements of this agreement have been fulfilled.
3 Such evidence is to be placed on file by the Lessee with the City
4 Administrator or his or her designee, City of San Bernardino, 300
5 North "D" Street, San Bernardino, California 92418.
6
(b)
No occupancy or use of City's property or
7 facilities shall be made by the Lessee, Lessee's agents,
8 contractors, employees or invitees, under the provisions of this
9 agreement until evidence acceptable to City Administrator or his
10 or her designee that the aforesaid insurance requirements have
11 been fulfilled has been received by the City Administrator or his
12
or her designee.
Each policy, binder or certificate of
13 insurance, is subject to the approval of City Administrator or
14 his or her designee as to content, form and issuing company.
15 Should any of the insurance requirements set forth in this
16 agreement not be fulfilled by the Lessee in a manner acceptable
17 to City Administrator or his or her designee as provided in this
18 agreement, said Risk Manager may purchase any or all of the
19 insurance required to correct such deficiencies and the Lessee
20 and Individuals agree that the premium incurred therefor shall
21 constitute an additional fee to be paid by the Lessee to the City
22 upon demand.
23
(c)
On or before October 1, 1990, a certified, true
24 and correct copy of each pOlicy providing all or part of the
25
liability
insurance coverage required by Paragraph 18 above,
26 together with all required endorsements, and a certificate of
27 insurance together with the required endorsement for the workers'
28 compensation coverage required by Paragraph 20 above, must be
DAB/ses/Pride.lse
August 9, 1990
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1 received directly from the issuing company by the City
2 Administrator or his or her designee.
3
(d) During the first thirty (30) days coverage of any
4 policy obtained by the Lessee to fulfill requirements of this
5 agreement, evidence may be in the form of an insurance binder;
6 provided that any such binder must include language to fulfill
7 the requirements, including endorsement requirements, in addition
8 to the normally accepted items in a binder, such as, but not
9
limited to:
coverage, limits of liability, date coverage was
10 effective, expiration date of binder, name of insuring company
11 and signature of authorized company representative.
12
22.
City Not a Bailee.
It is further hereby understood
13 and agreed that the City in no way purports to be a bailee and is
14 in no way responsible for lost, stolen or damaged property of
15 Lessee, its agents, employees, concessionaires or invitees.
16
23.
Possessory Interest Tax.
Lessee hereby acknowledges
17 and understands that this agreement may create a possessory
18 interest subject to property taxation pursuant to California
19 Revenue and Taxation Code Section 107, and that Lessee may be
20 subject to payment of property taxes levied on such interest, and
21 that such tax payment shall not reduce any monies due the City
22 hereunder and any such tax shall be the liability of and be paid
23 by the Lessee.
24
24.
Compliance With Orders, Ordinances and Laws.
The
25 Lessee shall at all times and continuously operate in full
26 compliance with all Federal, State and local laws, statutes and
27 ordinances; all orders of the Health Officer of the County of San
28 Bernardino; all directives of the Director; and shall grant
DAB/ses/Pride.1se
August 9, 1990
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1 access for inspection purposes to any authorized representative
2 of the state Board of Health or the County's Health Officer, or
3 any authorized representative of the Director.
4
25.
Liens and Encumbrances.
Lessee shall keep the
5 premises and all structures and improvements situated thereon
6 free from any liens or encumbrances arising out of any work
7 performed, material furnished, or obligations incurred by Lessee,
8 or from any other cause.
9
26. Capital Improvements.
10
Lessee agrees:
In contemplation of this agreement,
11 Lessee agrees to rent, lease, or furnish additional rest room
12 facilities sufficient to accommodate anticipated average
13 attendance on a ratio of one commode for every 200 spectators.
14 Such requirement may be met by agreement or accommodation with
15 the San Bernardino Baseball Club, Inc. for the use of its
16 restroom facilities.
17
27. Staffing and Cleanup.
18
( a )
Lessee shall provide all
event personnel,
19 including, without limitation, ticket sellers, ticket takers,
20 ushers, clubhouse matrons, clubhouse janitors, medical persons,
21 switchboard, sound and scoreboard persons, and other supervisory
23
22 personnel, and all other personnel reasonably necessary for the
operation of the premises for the events held therein.
The
24 number and type of such personnel shall be based upon the number
25
of spectators and the type of event.
Lessee shall also provide
26 attendant care during the game including but not limited to
27 restroom clean-up, garbage, trash and litter clean-up of
28 facili ty.
DAB/ses/Pride.lse
August 9, 1990
16
1
(b)
City shall provide, at its expense, ballfield
2 preparation, stadium clean up to include pick up and removal of
3 all litter and debris from stadium, stadium parking lot and
4 adjoining areas. Clean up shall be provided, at a minimum, after
5 each home game and prior to the commencement of each home game
6 and prior to and after any event otherwise held at the facility
7
pursuant to this agreement.
Clean up shall include washing down
8 the bleachers as necessary.
9
( c )
If City should provide any of the labor or
10 services described in subparagraph (a) above, Lessee shall
11 reimburse City for its labor, materials, supplies and
12 administrative overhead costs.
13
28. utilities and Additional Services.
14
( a)
City shall make arrangement for and pay for all
15 utilities furnished to or used at facilities for any use covered
16 by the agreement including, without limitation, gas,
18
17 electricity, water and trash cOllection, and for all connection
charges.
Except, Lessee shall be responsible for all costs of
19 telephone service, including connection fees, service charges
21
20 and user taxes.
(b)
At Lessee's request, City may provide, at the
22 sole discretion of the Director, or her designee, additional
23 services and supplies in support of the presentation of any of
24
the events herein contemplated.
Lessee shall reimburse City for
25 the labor, materials, supplies and administrative overhead costs
26 incurred in providing such services and supplies.
27
29.
Security.
Lessee shall be responsible for providing
28 all reasonably necessary security at each and every event held by
DAB/ses/Pride.1se
August 9, 1990
17
10
11
~~ -
1 Lessee at the facility under the provisions of this agreement.
2 The number and type of such personnel shall be based upon the
3 type of event and the number of spectators in determining
4 reasonably necessary security.
5 Lessee shall provide traffic control and security in
6 the stadium and parking lot at its expense. Traffic control and
7 security are to be provided at the discretion of the Lessee
8 except when the Director, in the exercise of her sole discretion,
9 determines that such is necessary as a matter of public safety.
30. Maintenance and Repair.
(a) General. Lessee agrees to maintain all equipment
12 at facility. City agrees to maintain all capital improvements at
13 facility.
14
15
(b) As is. Lessee agrees to accept facility as is.
City agrees to maintain the facility as specified herein.
In
16 the event, and at the time that additional and/or new equipment
17 other than is specified herein is necessary for the proper
18 operation of facility, Lessee shall, at Lessee's sole cost and
19
expense, purchase such additional and/or new equipment.
Unless
20 such equipment is attached as a fixture to facility, equipment
22
21 shall remain the personal property of Lessee.
(c) Routine Maintenance and Repairs.
Except as
24
23 otherwise provided herein, City shall maintain, in good and safe
condition, all portions of the facility.
City's routine
25 maintenance shall include, without limitation, and shall not be
26
limited to:
replacing light bUlbs in floodlights, field lights
27 and security lighting; manual broom or vacuum cleaning the
28 parking lot, grandstand and bleachers, and cleaning the public
DAB/ses/Pride.1se
August 9, 1990
18
- --..---
-
...
15
16
1 restroom; repair of asphalt surfaces including parking lot and
2 driveways; landscape maintenance to include fertilization and
3 weed control around the perimeter of the facility and both sides
4 of perimeter fencing, all aspects of playing field maintenance,
5 exclusive of game preparation; bleacher repairs; irrigation
6 system repairs including water fountains; plumbing repair such as
7 sewage stoppages; electrical repairs including junction box
8 blowouts and painting for cosmetic purposes.
9
(d) Emergency Maintenance.
Lessee hereby agrees to
10 comply with such written procedures as shall be established by
11 Director for obtaining emergency maintenance or repair of any
12 property or equipment to be maintained by City under this
13
agreement.
Lessee shall be liable for all costs incurred in a
14 manner consistent with such procedures.
31. Alterations.
18
17 Lessee shall not make any structural or nonstructural
(a) Except as otherwise specifically provided herein,
alterations to the facility without the
19 Director may act for the City in giving such consent.
City's consent.
20
The
(b)
City may elect, within thirty (30) days before
21 the expiration of the term or at the time of any other surrender
22 of such facility, to require Lessee to remove any alterations
23 that Lessee has made to the facility. If City so elects, Lessee,
24 at its cost, shall restore the facility to the condition it was
25 in at the commencement of the term less normal wear and tear,
26 within sixty (60) days after notice of election is given.
27
28 alterations are made by Lessee in accordance with the provisions
32. Construction Bond Requirements.
In the event that
DAB/ses/Pride.lse
August 9, 1990
19
1 of this agreement or in the event that individual maintenance and
2 repairs exceeding Five Thousand and No/lOO Dollars ($5,000.00)
3 are made by Lessee as a requirement of this agreement, Lessee
4 shall provide such faithful performance bonds, payment bonds and
5 labor and material bonds as City may demand and the terms and
6 provisions of the construction or maintenance contract to
7 accomplish any such alterations, maintenance or repairs to the
8 facility shall be subject to the approval of the Director and the
9 City Attorney.
10
33. Structural Restoration and Repair. City, at its cost,
11 shall repair, replace, and maintain the structural integrity of
12 the following:
13
( a )
The structural parts of the building and
14 permanent fixtures and other improvements that are a part of the
15 facility, including, without limitation, the foundations, bearing
16 walls, sub-flooring, ceiling, roof, window frames (not including
17 screens and panes), gutters and downspouts, light poles,
19
18 grandstands, and concession stands.
(b)
The unexposed electrical, plumbing and sewage
20 systems, including, without limitations, those portions of the
21 systems lying outside the facility.
22
(c)
City shall repair the facility if it is damaged
23 by (1) causes outside the facility over which Lessee has no
24 control; (2) acts or omissions of City or its authorized
25 representatives; or (3) City's failure to perform its obligations
26
under this agreement.
Lessee shall, and hereby agrees, to
27 reimburse City for City's total cost of repairs made necessary by
28
DAB/ses/Pride.lse
August 9, 1990
20
1 the activities and operations of Lessee, Lessee's agents,
2 employees, contractors or invitees.
3
34. Destruction.
4
( a )
If, during the term of this agreement, the
5 facility is totally or partially destroyed from any cause,
6 rendering the facility totally or partially inaccessible or
7 unusable and if, with reasonable diligence, the restoration can
8 be completed within ninety (90) working days after the date of
9 destruction, City shall restore the facility to substantially the
10 same condition as it was in immediately before destruction, and
11 such destruction shall not terminate this agreement.
12
(b)
If such destruction occurs during the playing
13 season of lessee, City shall have 15 calendar days following date
14 of destruction within which to notify lessee of City's
16
15 determination of its ability to repair the facility within the
time set forth in subparagraph (a).
If such destruction occurs
17 at any other time, City shall have 30 calendar days within which
18 to provide such notice.
19
20 of its discretion determines that restoration cannot be made in
(c) Upon notice that City in the reasonable exercise
21 the time stated in subparagraph (a), Lessee may then terminate
22 this agreement immediately by giving written notice to City. If
23 Lessee fails to terminate this agreement, within 15 calendar days
24 of date of such notice, City, at its election, can either
25 terminate this agreement, or restore the facility within a
26 reasonable time. If within 15 calendar days following date of
27 expiration of the period for lessee's notice of its election to
28
DAB/ses/Pride.lse
August 9, 1990
21
1 terminate, City notifies lessor of its intent to restore, this
2 agreement shall continue in full force and effect.
3
(d)
When such destruction occurs within ninety (90)
4 days of the last day of the then current baseball season, Lessee
5 may conduct the remainder of its home games during that season
6 within some other facility without impairment of any of its
7 rights hereunder.
8
(e) The time periods herein set forth shall not
9 include time for evaluation of loss by any insurer. Notice that
10 a claim for loss of facility is under evaluation by an insurer of
11 the facility shall toll the time for notice of intent to restore.
12 City shall not be responsible for any losses incurred by lessor
13 proximately arising from a delay in the restoration of the
14 facility which occurs for reasons beyond the control of the City.
15
35. Time of Essence/Breach.
Where performance of a
16 covenant is specified herein to be on or before a certain date,
17
time shall be of the essence of said covenant.
Performance by
18 the Lessee of each and every condition, covenant or provision of
19 this agreement is material, the breach of which shall constitute
20 a material breach of this contract for which City's Director may
21 terminate this agreement; provided, however, that any such
22 termination by said Director shall not be effective until not
23 less than thirty (30) days after notice of termination by said
24 Director to the Lessee and said Director may withdraw and cancel
25
such termination if, in the sole discretion of City:
(1) the
26 breach is cured within the thirty-day period; or (2) the nature
27 of the breach is such that it cannot be cured within such thirty-
28 day period but the Lessee promptly commences to correct such
DAB/ses/Pride.lse
August 9, 1990
22
1 breach and proceeds to correct the same as promptly as reasonably
2 practicable.
3
36. Attorney's Fees/Legal Costs.
4 City, if any action at law or in equity shall be brought to
As between Lessee and
5 enforce or interpret the terms of this agreement, including costs
6
of reduction to
cash the proceeds of any security provided
7 hereunder, the prevailing party shall be entitled to recover from
8 the other party as part of the prevailing party's costs
9 reasonable attorney's fees, the amount of which shall be fixed by
10 the court and shall be made a part of any judgment or decree
11 rendered.
12
37. Waiver of Breach.
The waiver of any breach of any
13 term, covenant or condition herein contained shall not be deemed
14 to be a waiver of any subsequent breach of the same or any other
15 term, condition or covenant contained herein.
16
38. Surrender of Premises.
Upon the termination of the
17 term, Lessee shall surrender to City, the facility and all
18 Lessee's improvements and alterations, on good condition (except
19 for ordinary wear and tear occurring after the last necessary
20 maintenance made by lessee and destruction of the facility
21 covered by paragraph 34), except for alterations that Lessee has
22 the right to remove, or is obligated to remove, under the
23
provisions of paragraph 31.
Lessee shall remove all of its
24 personal property and perform all restoration made necessary by
25 the removal of said personal property and by the removal of any
26 alterations prior to the termination of the term of this
27 agreement.
28
/
/
/
DAB/ses/Pride.lse
August 9, 1990
23
1
39. Termination.
2
( a)
The City may terminate this agreement for cause
3 including but not limited to, the following occurrences:
4
(1 )
Any action taken or suffered by the Lessee
5 or shareholders of 40% or more under an insolvency or bankruptcy
6 act, including the appointment of a receiver to take possession
7 of all or substantially all of the assets of the Lessee or
8 shareholders of 40% or more.
9
( 2 )
Any general assignment by Lessee or
10 shareholders of 40% or more for the benefit of creditors.
11
(3) Loss of the franchise.
12
(4) Sale, transfer or hypothecation of more than
13 10% of the baseball franchise of 10% interest in Lessee whether
14 in a single or multiple transaction during the term of this
15 agreement.
16
(5)
Lessee fails to provide the regular playing
17 of baseball games at Senior Professional Baseball Association
19 other than loss or destruction of the field or other
18 level Class A or above league level at the facility for reasons
21
20 impossibility, including but not limited.to a players strike.
(b)
The Mayor and Common Council is empowered to
22 decide, on the part of the City, that this agreement is to be
24
23 terminated for cause and to furnish 30 days' written notice
25
thereof to the Lessee.
Lessee shall have the right to cure any
default within those 30 days.
Notice of termination shall be
26 sufficient if delivered personally or if deposited in the United
27 States postal service in a postage prepaid envelope addressed as
28
DAB/ses/Pride.lse
August 9, 1990
24
1 follows unless a different address shall have been furnished in
2 writing by one party to the other party:
3
AS TO CITY:
AS TO LESSEE:
4
Director
Parks, Recreation and
Community Services
547 North Sierra Way
San Bernardino, CA 92401
San Bernardino Pride, Inc.
Fiscalini Field
1007 E. Highland
San Bernardino, CA 92404
5
6
7
40. Effect of Termination.
8
( a )
Any other provisions of this agreement
9 notwithstanding, upon termination of this agreement City shall be
10 entitled to utilize any security in the manner as set forth at
11 Section 19 of this agreement.
12
(b)
Upon termination of this agreement, in addition
13 to any other amounts due to City hereunder, City shall be
14 entitled to receipt of any unpaid rents for the remainder of the
15 year during which such termination occurs.
16
(c)
It is hereby agreed by lessee that if this
17 agreement is terminated because of the sale or transfer of Lessee
18 or an interest therein, City shall have a lien upon the proceeds
19 of such sale to the extent of its interest as described
20 hereinabove and under any provision of this agreement. Provided
21 that, with the prior written approval of the Mayor and Common
22 Council, the lease is transferable with no penalties and on the
23 same terms and conditions or on such terms and conditions as
24 shall be established at the time of such proposed transfer.
25
41. Reader Board/Message Center.
Lessee shall provide at
26 least one public service announcement on the scoreboard reader
27 board during each game. The message shall be published without
28
charge.
Said language shall be approved by the Director.
City
DAB/ses/Pride.lse
August 9, 1990
25
1 shall provide messages on the message center outside the facility
2 to help promote the Pride at a rate of 50% of the time available
3 to City from September 15, 1990 until February 28, 1991.
4
(c)
Provide at no cost to the City, one 30-second
5
radio spot for each game played, whether at home or away.
This
6 requirement is contingent upon the team obtaining a contract for
7 the radio broadcast of its games.
8
42. Incorporation of Prior Agreements and Amendments.
9
This Agreement contains all agreements of the parties
10 with respect to any matter mentioned herein. No prior agreement
11 or understanding pertaining to any such matter shall be effective
12
except as otherwise incorporated herein.
This agreement may be
13 modified in writing only, signed by the parties in interest at
14
the time of the modification.
This agreement shall not be
15 construed as requiring the City to make any expenditures, other
16 than as specifically set forth herein.
17
43. Venue. If either Lessee or City initiate an action to
18 enforce the terms hereof or declare rights hereunder, including
19 actions on any bonds and/or surety agreements, the parties agree
20 that the venue thereof shall be the County of San Bernardino,
22
21 State of California.
44. Severability.
The invalidity of any provision of
23 this agreement, as determined by a Court of competent
24 jurisdiction, shall in no way affect the validity of any other
25 provision hereof.
26
45. Captions.
Paragraph headings in this agreement are
27 used solely for convenience, and shall be whOlly disregarded in
28 the construction of this agreement.
DAB/ses/Pride.lse
August 9, 1990
26
19
20
21
-~
1
46. Covenant and Conditions.
Each provision of this
2 agreement performable by Licensee shall be deemed both a covenant
3 and a condition.
4
47. Notice.
Except as otherwise provided herein, any
5 notice, statement, demand, request, consent, approval,
6 authorization, offer, agreement or communication, that either
7 party hereto desires, or is required to give to the other party,
8 shall be in writing and shall be sufficiently given and served
9 upon the other party if delivered personally, or if sent by
10 United states postal service, first class postage prepaid, and
11
addressed as specified in paragraph 39 above.
Ei ther party
12 hereto may change its address for purposes of this agreement by
13 giving the other party appropriate written notice of the change
14
of address.
Notice shall be deemed to be communicated within
15 forty-eight (48) hours of the time of mailing, if mailed to the
16 following:
17
AS TO CITY:
AS TO LESSEE:
18
Director
Parks, Recreation and
Community Services
546 North Sierra Way
San Bernardino, CA 92401
San Bernardino Pride, Inc.
Fiscalini Field
1007 E. Highland
San Bernardino, CA 92404
48. No Third Party Beneficiaries of Agreement.
Any
23
22 insurance coverage required herein is for the protection of City,
its officers, agents, employees, contractors, and invitees.
No
24 third party beneficiaries other than as specifically named herein
25 are contemplated under any provision of this agreement, nor is it
26 the intent of this agreement to create any right in same.
27
49. Vendor Consideration.
Lessee hereby agrees to give
28 serious consideration to vendors with principal offices in the
DAB/ses/Pride.lse
August 9, 1990
27
1 City of S an Bernardino in the award of contracts for the
2 provision of goods and services.
3
50. Accounting.
4
(a)
Within sixty (60) days after the end of each
5 Senior Professional Baseball Association season during the term
6 of this lease, Lessee shall file with the Parks, Recreation and
7 Community Services Director of City, an accounting showing the
8 gross receipts from use of the facility as herein defined for
9
each such season.
Said accounting statement shall contain an
10 appropriate certification that all gross receipts of the previous
11 year have been duly and properly reported to City and that the
12 statements filed with the City are in accord with Lessee's
13 reports of profits and losses to its owners and its Federal
14 Income Tax Return.
15
(b)
Lessee shall make such accounting and give such
16 notices as are necessary to implement Section 5(c) of Agreement
18
17 entitled "Payment of Percentage of Gross Receipts".
19
51. Records.
(a)
The term "records" as used herein shall include,
20 but is not confined to, sales slips, cash register tapes, bank
21 deposit receipts, sales tax returns, sales books, rent receipts,
23
22 sales contracts, service contracts, books and ledgers.
(b)
Lessee shall keep true and accurate
books and
24 records showing all of its business transactions conducted on or
25 from the premises in accounts separate from any other business
26
which Lessee may have or
conduct.
All such records shall be
27 retained on the premises or at such other place in San Bernardino
28 County as is approved by City, provided that Lessee may
DAB/ses/Pride.lse
August 9, 1990
28
1 temporarily remove the same as may be necessary for legal or
2 accounting purposes.
3
( c)
City shall have the right, after reasonable
4 notice and at any reasonable time, from time to time, to examine
5 and audit the books and records of Lessee and his sublessees,
6 concessionaires and licensees, including California Sales Tax
7 Records, and to make copies of same and of any written agreements
8 between Lessee and such sublessees, concessionaires, and
9
licensees of Lessee.
Providing further, that City reserves the
10 right to examine all such books and records at any time during
11 the period following the regular baseball season.
12
( d )
Lessee shall provide the City with all
13 information needed to exercise its rights under this section of
14 agreement, and shall not unreasonably withhold any requested
16
15 information.
52.
Successors Bound.
This agreement shall be binding
17 upon and inure to the benefit of each of the parties and their
18 respective legal representatives, successors, heirs and assigns.
19
53. Spirit Agreement.
The parties understand and
20 acknowledge that this Lease Agreement is subject to the
21 conflicting provisions, if any, of that certain Agreement entered
22 into between the City and the San Bernardino Baseball Club, Inc.,
23 dated March 21, 1990 ("Spirit Agreement") and that certain
24 agreements may have to be made between Lessee and the San
25 Bernardino Baseball Club, Inc. relating to various provisions of
26 said Spirit Agreement including but not limited to concession
27 operation, scoreboard use, advertising signs, and restroom use.
28 Copies of such Agreements shall be filed with City.
DAB/ses/Pride.lse
August 9, 1990
29
1 LEASE AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND THE
SAN BERNARDINO PRIDE, INC.
2
3
CITY OF SAN BERNARDINO
4
5
BY:
W. R. HOLCOMB, Mayor
6
ATTEST:
7
8
City Clerk
9
10
SAN BERNARDINO PRIDE, INC.
11
BY:
12
Approved as to form
13 and legal content:
14 JAMES F. PENMAN,
City Attorney
15
16
.fG'~
17
18
19
20
21
22
23
24
25
26
27
28
DAB/ses/Pride.1se
August 9, 1990
30