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HomeMy WebLinkAbout2009-355 Ai 1 RESOLUTION NO. 2009-355 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 3 FACILITY USE AGREEMENT BY AND BETWEEN THE AMERICAN SPORTS UNIVERSITY AND THE CITY OF SAN BERNARDINO ALLOWING FOR THE 4: UNIVERSITY'S USE OF THE RUDY C. HERNANDEZ RECREATION CENTER 5 GYMNASIUM, AND RATIFYING ANY ACTION TAKEN BETWEEN OCTOBER 1,2009 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 III 24 III 25 III 26 III 27 I II 28 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: Section 1: That the City Manager is hereby authorized to execute on behalf of said City the Facility Use Agreement with American Sports University (ASU), a copy of which is attached hereto, marked as Exhibit 1, and incorporated herein by reference as fully as though set forth at length; and Section 2: That the implementation date of the Facility Use Agreement with American Sports University is October 1, 2009~ therefore, any action taken between October 1, 2009 and the date that this Resolution is adopted is hereby ratified; and Section 3: That the authorization to execute the above referenced Facility Use Agreement is rescinded if the parties to the agreement fail to execute it within thirty (30) days of the passage of this resolution. III III 2009-355 1 SOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 2 FACILITY USE AGREEMENT BY AND BETWEEN THE AMERICAN SPORTS UNIVERSITY AND THE CITY OF SAN BERNARDINO ALLOWING FOR THE 3 UNIVERSITY'S USE OF THE RUDY C. HERNANDEZ RECREATION CENTER 4 GYMNASIUM, AND RATIFYING ANY ACTION TAKEN BETWEEN OCTOBER 1,2009 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regul~feeting thereof, held on the 16thdayof November , 2009, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT x ESTRADA x BAXTER x BRINKER x SHORETT KELLEY -1L- x JOHNSON x MCCAMMACK ~~1Ih..~ Rachel Clark~ City Clerk tt1 The foregoing resolution is hereby approved this _J~ V day of November 2009. Patrick J. Morris, Mayor City of San Bernardino Approved as to form: James F. Penman, City Attorn y By: EXHIBIT "1" 2009-355 CITY OF SAN BERNARDINO AMERICAN SPORTS UNIVERSITY FACILITY USE AGREEMENT This Agreement, by and between the American Sports University ("UNIVERSITY") and the City of San Bernardino ("CITY"), provides for the UNIVERSITY's use of the Rudy C. Hernandez Community Center gymnasium, owned by the CITY, in accordance with the following terms and conditions: 1. GENERAL: A. The CITY agrees to provide UNIVERSITY with the use of the Rudy C. Hernandez Community Center gymnasium as delineated in Section (3) (A) of this Agreement. B. The UNIVERSITY agrees to adhere to CITY regulations as stated in Section 3 (B) (3) of this Agreement, and to provide the CITY with professional and other services as delineated in Section 4 of this Agreement. 2. TERM: A. The term of this Agreement shall be for five (5) months commencing on October 1, 2009, and ending on February 28, 2010. 3. USE OF CITY FACILITIES: A. CITY: 1. Facility Use: CITY will allow UNIVERSITY to make use of the Hernandez Center gymnasium, subject to the schedule described in Section 3 (B) (1). CITY agrees to allow UNIVERSITY exclusive use of Hernandez Center gymnasium for regular scheduled basketball practices from 12:30 pm to 2:30 pm, Monday - Thursday, from October through February. UNIVERSITY players may stay after 2:30 pm; however, exclusivity expires at 2:30 pm and UNIVERSITY team shall release one-half of the court for community play at that time. Further, CITY agrees to allow UNIVERSITY exclusive use of the Hernandez Center gymnasium for all practices and home games set forth on Attachment "A," ("Mens' Basketball Schedule") attached hereto and incorporated herein by this reference. 2009-355 B. UNIVERSITY: 1. Use of Facilities: UNIVERSITY will have exclusive use of Hernandez Center gymnasium for basketball practices and games according to the Mens' Basketball Schedule. By the effective date of this Agreement, UNIVERSITY shall submit to CITY in writing the names of all authorized UNIVERSITY supervising staff who will be on the premises during the term of this Agreement. 2. Cancellation of Practices/Games: UNIVERSITY shall give CITY at least two (2) weeks' prior notice of any cancellation of a practice or game. 3. Maintenance of Facilities: UNIVERSITY will keep gymnasium clean of trash throughout the duration of this contract. UNIVERSITY agrees to complete all maintenance of gymnasium after each of its practices and games during the term of this Agreement. 4. Adherence to CITY Regulations: UNIVERSITY will ensure that all players, coaches, and staff adhere to CITY regulations in accordance with the City of San Bernardino Municipal Code Chapter 12.80 (with the exception of references to fees and deposits) at all times. CITY reserves the right to deny UNIVERSITY access to the court if requests for compliance with regulations are not met. 5. Background Checks: all UNIVERSITY faculty, staff and students working with youth shall submit to and pass a CITY background and "live scan" check consistent with the requirements of Public Resources Code Section 6154 and the CITY's requirements for CITY volunteers. 4. PAYMENT AND SERVICES: A. Rate of payment: UNIVERSITY has requested financial assistance from CITY in order to assist in defraying the expenses connected with the conduct of events related to the UNIVERSITY's Men's Basketball program. UNIVERSITY will provide "pay-to-play" compensation at the rate of $1 per player, per day of use, Monday through Thursday, 12:30 - 2:30 p.m.. For use outside of the CITY's normal hours of operation, UNIVERSITY will pay the hard cost of staff to open/close building at the rate of $12 per hour. Total estimated hard costs in the amount of $648.00 shall be deposited by UNIVERSITY in advance of the first use under this Agreement, payable to the Parks, Recreation and Community 2 2009-355 Services Department for deposit into the Hernandez Center Trust Account. The above stated fees are in addition to the "pay to play" compensation of $1 per player, per practice session. B. Additional compensation: Additionally, UNIVERSITY will complete the refinishing of the gymnasium floor; project is valued at $3,700. Floor refinishing services shall be performed by a licensed contractor prior to game use, and shall be scheduled so as to minimize impact to CITY programming at the Center. Scheduling of maintenance services shall be coordinated with the CITY designee and subject to review and approval by the City Development and/or Facilities Department or City Engineer. C. Cancellations: UNIVERSITY shall receive a credit/refund of fees paid for any practices or games cancelled upon at least two weeks' prior notice to CITY. Fees deposited for use will be forfeited for any hours cancelled with less than two weeks' prior notice to the CITY. 5. INDEMNITY UNIVERSITY agrees to and shall indemnify and hold the CITY, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages, and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of UNIVERSITY, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the CITY, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, UNIVERSITY agrees to protect and defend at its own expense, including attorney's fees, the CITY, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. UNIVERSITY hereby waives any and all rights to any types of express or implied indemnity against the CITY, its elected officials, employees, agents or representatives, with respect to third party claims against the UNIVERSITY relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. Nothing contained in this agreement shall be construed as a waiver by the CITY of any immunity it may have under the law. III 3 2009-355 6. INSURANCE: While not restricting nor limiting the foregoing, during the term of this Agreement, UNIVERSITY shall maintain in effect policies of comprehensive public, general and automobile liability insurance, and all such riders as related to the operation of the Program, in the amount of $2,000,000.00 per occurrence combined single limit, naming the City of San Bernardino, it's departments, agencies, boards, commissions, elected officials, attorneys, employees, and agents, as additional insureds. The policy shall be without right of subrogation against the CITY. The insurance provided shall carry the endorsement that "this insurance is primary and noncontributory as respects any losses or liability arising directly or indirectly from the insured's operations. A certificate of insurance evidencing such coverage shall be provided to the Parks, Recreation and Community Services Director or his designee, with the added notation that the insurance policy shall not be terminated or materially altered without thirty days' prior notice to the CITY. 7. NON-DISCRIMINATION: In the performance of this Agreement and in the hiring and recruitment of employees, UNIVERSITY shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in the employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 8. NOTICES. Any notice to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE CITY: Parks, Recreation and Community Services Director 1350 South "E" Street San Bernardino, CA 92408 Phone: (909) 384-5233 Fax: (909) 384-5160 TO THE UNIVERSITY: American Sports University 399 North D Street San Bernardino, CA 92407-2397 Phone: (909) 889-5555 Fax: (909) 889-3855 4 2009-355 9. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees" for the purposes of this paragraph. 10. VENUE The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California, or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 11. GOVERNING LAW This Agreement shall be governed by the laws of the State of California. 12. SUCCESSORS AND ASSIGNS This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 13. HEADINGS The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 14. SEVERABILITY If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of the Agreement shall remain in full force and effect. 5 2009-355 CITY OF SAN BERNARDINO AMERICAN SPORTS UNIVERSITY FACILITY USE AGREEMENT 15. ENTIRE AGREEMENT; MODIFICATION This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject manner of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. 16. REMEDIESIWAIVER All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. 17. TERMINATION: The CITY or UNIVERSITY may terminate this Agreement by giving the other party thirty (30) days advance written notice of termination. Should UNIVERSITY fail to faithfully perform all the terms and conditions of this Agreement, CITY may summarily terminate this Agreement by giving written notice of termination of this Agreement. American Sports University 399 North 0 Street San Bernardino, CA 92407-2397 Charles McNeely City Manager // ~c;f f / BY~U B Date Approved as to form: James F en an, City Attorney By: 6