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HomeMy WebLinkAbout2009-378 (NOTE: REPEALED BY RESOLUTION 2010-26) 1 2 RESOLUTION NO. 2009-378 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 4 FACILITY USE AGREEMENT BY AND BETWEEN CALIFORNIA STATE UNIVERSITY, SAN BERNARDINO AND THE CITY OF SAN BERNARDINO 5 ALLOWING FOR THE UNIVERSITY'S USE OF FISCALINI FIELD FROM 6 DECEMBER 26, 2009 THROUGH DECEMBER 25, 2010, WITH THE OPTION OF THREE (3) ONE- YEAR RENEWALS. 7 8 9 10 11 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 California State University. San Bernardino, 12 a copy of which is attached hereto, marked as Exhibit" A". and incorporated herein by 13 reference as fully as though set forth at length; and 14 15 16 17 18 I I I 19 20 21 I I I 22 III 23 III 24 III 25 26 27 III 28 III Section 2: That the authorization to execute the above referenced Facility Use Agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. III III 2009-378 1 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A FACILITY USE AGREEMENT BY AND BETWEEN CALIFORNIA STATE 4 UNIVERSITY. SAN BERNARDINO AND THE CITY OF SAN BERNARDINO ALLOWING FOR THE UNIVERSITY'S USE OF FISCALINI FIELD FROM 5 DECEMBER 26, 2009 THROUGH DECEMBER 25, 2010, WITH THE OPTION 6 OF THREE (3) ONE-YEAR RENEWALS. 7 8 9 10 11 12 13 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the joint Mayor and Common Council of the City of San Bernardino at a regular meeting thereof. held on the ~ day of December , 2009, by the following vote, to wit: Council Members: AYES NAYS ABST AIN ABSENT ESTRADA x BAXTER x 14 BRINKER 15 16 17 18 19 20 21 22 23 24 25 26 27 28 x x SHORETT x KELLEY JOHNSON ~ x MCCAMMACK ~1J.~ Rachel Clark, City Clerk ')., ,~ approved this wY day of hereby The foregoing resolution IS December . 2009. P trick J. Morris, Mayor ity of San Bernardino Approved as to form: Bv: Exhibit A CITY OF SAN BERNARDINO CALIFORNIA STATE UNIVERSITY - SAN BERNARDINO USE OF FACILITIES AGREEMENT This Agreement, by and between California State University, San Bernardino ("UNIVERSITY") and the City of San Bernardino ("CITY"), provides for the UNIVERSITY's use of Fiscalini Field, owned by the CITY, in accordance with the following terms and conditions: I. GENERAL: UNIVERSITY shall have use of Fiscalini Field from December 26, 2009 through December 25, 2010 for practices and games (Schedule attached - Exhibit "A") and potential CCM Tournament scheduled for May 6-18,2010. II. TERM: The term of this agreement shall be for one (1) year commencing on December 26, 2009 and ending on December 25, 2010; with the option of three (3) one year renewals upon mutual consent of the parties. During the term of the Agreement, the UNIVERSITY is granted use of Fiscalini Field from December 26 through May 23. III. USE OF FISCALlNI FIELD: A. CITY's Responsibilities: 1. Maintenance of Field: a) Routine/Recurring: provide weekly landscape maintenance of Fiscalini Field, including 1 inch height mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. b) Annual Renovation: complete irrigation system repair (automated and manual), grass scalping to 'Y2 inch previous to over seeding, complete turf aeration, install UNIVERSITY provided sand to "float" infield lightly, over seed and cover bare spots with seed topper materials provided by UNIVERSITY, remove lips from back of infield, apply new sod to necessary turf areas, rebuild pitcher's mound with UNIVERSITY provided sand, grade and spread Infield sand material provided by UNIVERSITY, repair and tie down outfield wind screens, cut back trees hanging over fences in outfield, in the initial year remove fences in preparation for UNIVERSITY replacement from dugout to 3ft yellow cap fence. 2. Use of Clubhouse: CITY will allow UNIVERSITY to use the clubhouse, which includes the manager office, training room, restrooms and showers during the scheduled use as described herein. 3. Use of Scoreboard and P.A. System: After training by City staff, CITY will allow UNIVERSITY personnel to operate and use the scoreboard and P.A. amplification equipment. B. UNIVERSITY Responsibilities: 1. Use of Facilities: UNIVERSITY will use Fiscalini Field for baseball practices and games. 2. Joint Use of Facilities: UNIVERSITY will relinquish field use to designated CITY co-sponsored youth play three (3) weekends during UNIVERSITY use: January 16-18, February 13-14, April 3-4. During CITY designated use, daily play shall comply with the terms and conditions of the "Rules for Fiscalini Maintenance" in Exhibit "B". 3. Maintenance of Field and Facilities: UNIVERSITY will keep the infield, outfield, dugouts; batters' cage, spectator stands and players' Clubhouse clean of trash throughout the duration of use. UNIVERSITY will comply with the CITY "Rules for Fiscalini Maintenance" in Exhibit "B". 4. Adherence to CITY Regulations: UNIVERSITY will insure that all players, coaches, and staff adhere to CITY regulations at all times. CITY reserves the right to close the field if requests for compliance with regulations are not met. 5. Use of Sign Panels on Outfield Fence: UNIVERSITY will use existing sign panels to solicit advertising in support of Men's Baseball Scholarships at UNIVERSITY. UNIVERSITY will solicit businesses in San Bernardino and Riverside Counties. UNIVERSITY will produce, install, and maintain signs as needed. UNIVERSITY will pay the CITY a fee of twenty five percent (25%) of the net profit received from advertising. Should a third party be contracted by UNIVERSITY to solicit the sponsorships, the twenty five percent (25%) will be taken from the UNIVERSITY percentage and not the market value of the sponsorship. IV. FEES & CSUSB Reciprocal Services: The UNIVERSITY agrees to pay CITY an annual rental payment of $17,500 for use of Fiscalini Field. The fee for use of Fiscalini Field facilities will be payable to the "City of San Bernardino" by the 1st of January 2010. In addition, UNIVERSITY will provide the following services during the term of this agreement: Provide two (2) single day baseball clinics for San Bernardino youth through the Parks, Recreation and Community Services Department youth sports program. All students, employees and volunteers who will be supervising minors shall have submitted to and passed LiveScan background checks administered by the San Bernardino Police Department. Replace sideline/field fences (value - $12,000) after approval of specified materials and design by CITY. Provide basic user upkeep, i.e. dragging, chalking, watering and field preparation before and after each use. Maintain all aspects of the interior and exterior of the Players' Clubhouse for the UNIVERSITY's exclusive use. V. EMPLOYMENT AND INDEPENDENT CONTRACTORS: The UNIVERSITY, at the UNIVERSITY's own expense, may employ or contract such persons, as the UNIVERSITY deems necessary to perform the services required of the UNIVERSITY by this agreement. The UNIVERSITY assumes full and sole responsibility for payment of all compensation and expenses of these employees or independent contractors for all state and federal income tax, Worker's Compensation unemployment insurance, Social Security, disability insurance, and other applicable withholdings. The UNIVERSITY agrees to provide worker's compensation insurance for their own employees, volunteers and agents and agrees to hold harmless and indemnify the CITY for any and all claims arising out of any injury, disability, or death of any of the UNIVERSITY's employees or agents. VI. DISCRIMINATION: CITY and UNIVERSITY mutually agree that the activities provided under this Agreement and all employment offered by CITY and UNIVERSITY under this Agreement shall be free of discrimination based upon 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. CITY and UNIVERSITY shall comply with the law and the policies and procedures of their respective agencies relative to affirmative action compliance in their employment practices. VII. LIABILITY: UNIVERSITY AND CITY AGREE AS FOllOWS: CITY agrees to indemnify and hold harmless the State of California and UNIVERSITY, its employees, officers, agents and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from CITY'S negligent acts or omissions arising from the CITY'S performance of its obligations under the Agreement. UNIVERSITY agrees to indemnify and hold harmless CITY, its employees, officers, agents, and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from UNIVERSITY'S negligent acts or omissions arising from the UNIVERSITY'S performance of its obligations under the Agreement. In the event that CITY and/or UNIVERSITY is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, CITY and/or UNIVERSITY shall indemnify the other to the extent of this comparative fault. The costs, salary and expenses of the City Attorney and members of his office in enforcing this agreement shall be considered as costs for the purposes of this paragraph. CITY and UNIVERSITY do not hereby waive each as to the other any defenses or immunities each may have, either jointly or separately, under California Government Code Sections 810, et seq. and, by way of emphasis and not of limitation, with specific reference to California Government Code Sections 830, et seq. VIII. INSURANCE: While not restricting or limiting the foregoing, during the term of this Agreement, UNIVERSITY shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000, per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents as additionally insured. A certificate of insurance evidencing such coverage shall be provided to the City's Risk Manager or his designee, with the added notation that the insurance policy shall not be terminated or materially altered without thirty (30) days prior written notice to CITY. IX. TERMINATION: The CITY or the UNIVERSITY may terminate this Agreement by giving the other party thirty (30) days advance written notice of termination. Should the UNIVERSITY fail to faithfully perform all the terms and conditions of this Agreement, the CITY may summarily terminate this Agreement by giving fourteen (14) working days' written notice of termination to the UNIVERSITY. X. 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. XI. ASSIGNMENT. UNIVERSITY shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the UNIVERSITY's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release UNIVERSITY of UNIVERSITY's obligation to perform all other obligations to be performed by UNIVERSITY hereunder for the term of this Agreement. XII. 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. XIII. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. XIV. 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. XV. 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. XVI. 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 this Agreement shall remain in full force and effect. XVII. REMEDIES; WAIVER. 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 CITY OF SAN BERNARDINO CALIFORNIA STATE UNIVERSITY - SAN BERNARDINO USE OF FACILITIES AGREEMENT waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. XVIII. AMENDMENTS TO THE AGREEMENT: This Agreement may only be changed by written amendment signed by authorized officials of CITY and UNIVERSITY. No oral agreements shall be binding or of any effect on either party. XIX. It is not the intent of the Parties that any rights in third parties be created by the terms and conditions agreed to herein. California State University San Bernardino 5500 University Parkway San Bernardino, CA 92407-2397 City of San Bernardino Parks, Recreation and Community Services Department 1350 South "E" Street San Bernardino, CA 92408 By By Procurement and Support Services Officer Charles McNeely, City Manager Date Date Approved as to form: James F. Penman, City Attorney By 12/15/09 CAL STATE - FISCALINI AGREEMENT