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HomeMy WebLinkAbout10-Parks and Recreation t ti r CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION From: Kevin Hawkins, Director Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Dept: Parks, Recreation & Community authorizing the City Manager to execute a Services Dept. Use of Facilities Agreement between the City of San Bernardino and the Coast Date: April 18, 2011 Soccer League for use of the San Bernardino Soccer Complex for a 5-year period. ORIGINAL M/CC Meeting Date: May 2,2011 Synopsis of Previous Council Action: 12-19-2005— Mayor and Common Council approved resolution 2005-430 authorizing Mayor or her designee to execute an Agreement between the City of San Bernardino and the Coast Soccer League for use of the San Bernardino Soccer Complex for a 5-year period. Recommended motion: Adopt Resolution. Signature Contact person: Robert Lennox Phone: 384-5031 Supporting data attached: Staff Report, Reso, & Agreement Ward: 7 FUNDING REQUIREMENTS: Amount: $88,000 annual revenue, $3,000 annual facility improvements Source: (Acct. No.) 134-380-4861-0000 (Acct. Description) Program and Facility Use Fees Finance: Council Notes: eese Agenda Item No. f ( i CITY OF SAN BERNARDINO —REQUEST FOR COUNCIL ACTION Staff Report Subject: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute a Use of Facilities Agreement between the City of San Bernardino and the Coast Soccer League for use of the San Bernardino Soccer Complex for a 5-year period.. Background: Since October of 2002, the City has maintained and operated the San Bernardino Soccer Complex. Operations have consisted primarily of annual weekend events sponsored by several youth soccer organizations. Coast Soccer League (CSL) is the largest user of the Soccer Complex, typically comprising 20 or more weekends of use per year. CSL is interested in continuing their use of the complex and successful negotiations over the last several months have concluded in a 5-year agreement with CSL. The general terms of this agreement allow CSL permitted use of the entire 17 field complex for a total of 22 weekends annually, for 2-day tournaments and league play. Additionally, CSL will be permitted use of the north club house/storage building to keep supplies and equipment. CSL will be required to pay all applicable rental, cleaning, and deposit fees to the City. CSL will also provide tenant improvements in the north building valued at $15,000 over the five years. Staff is recommending the approval of this agreement as the contract will encourage regional tourism in San Bernardino and substantially stimulate the City's economy and tax base. Annual attendance from CSL use is estimated at 200,000 players and spectators. Financial Impact: There is no cost to enter into an agreement with CSL; however terms of the agreement require CSL to complete facility improvements/renovations valued at $3,000 annually plus $88,000 in annual lease payments, in exchange for Soccer Complex use. The revenues for this agreement was anticipated and already included in the Soccer Complex FYI 0-11 budget. Recommendation: Adopt resolution RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN USE OF FACILITIES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO 4 AND THE COAST SOCCER LEAGUE FOR USE OF THE SAN BERNARDINO 5 SOCCER COMPLEX FOR A 5-YEAR PERIOD. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY 7 OF SAN BERNARDINO AS FOLLOWS: 8 Section 1. That the City Manager is hereby authorized to execute on behalf of said City 9 the Facility Use Agreement with Coast Soccer League, Inc., a copy of which is attached 10 hereto, marked as Exhibit "A" and incorporated herein by reference as fully as though set 11 forth at length; and 12 13 Section 2. That the authorization to execute the above referenced Facility Use Agreement 14 is rescinded if the parties to the Agreement fail to execute it within ninety (90) days of the 15 passage of this resolution. 16 Section 3. That the implementation date of the Facility Use Agreement with California 17 Coast Soccer League, Inc. is May 1, 2011; therefore, any action taken between May 1, 2011 18 and the date that this Resolution is adopted is hereby ratified; 19 20 21 22 23 24 25 26 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF 2 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN USE OF FACILITIES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO 3 AND THE COAST SOCCER LEAGUE FOR USE OF THE SAN BERNARDINO 4 SOCCER COMPLEX FOR A 5-YEAR PERIOD. 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 6 Common Council of the City of San Bernardino at a Meeting, 7 thereof, held on the day of , 2011, by the following vote to 8 wit: 9 COUNCIL MEMBERS AYES NAYS ABSTAIN ABSENT 10 11 MARQUEZ 12 VACANT 13 BRINKER 14 SHORETT 15 KELLEY 16 JOHNSON 17 MCCAMMACK 18 19 20 Rachel G. Clark, City Clerk 21 The foregoing resolution is hereby approved this day of 22 23 Patrick J. Morris, Mayor 24 City of San Bernardino 25 Approved as to Form: 26 James F. Penman, City Attorney 27 28 . Y f -OMI CITY OF SAN BERNARDINO COAST SOCCER LEAGUE, INC. USE OF FACILITIES AGREEMENT This Agreement, by and between Coast Soccer League, Inc. ("CSL") and the City of San Bernardino ("CITY"), provides for CSL's use of the San Bernardino Soccer Complex located at 2500 Pacific St., Highland, CA, 92346, owned by CITY, in accordance with the following terms and conditions: I. GENERAL: CSL shall have shared use of the playing fields and North Garage Storage Building at the San Bernardino Soccer Complex from May 1, 2011 through April 30, 2016 on select weekends, 6:00 AM to 9:00 PM, for regional soccer tournaments and league competitions. 11. TERM; TERMINATION: The term of this agreement shall be for five (5) years commencing on May 1, 2011 and ending on April 30, 2016. This Agreement may be terminated at any time on thirty (30) days' written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. Should the CSL fail to faithfully perform all the terms and conditions of this Agreement, the CITY may summarily terminate this Agreement by giving CSL fourteen (14) calendar days' written notice of termination. II. USE OF SAN BERNARDINO SOCCER COMPLEX: A. CITY's Responsibilities: I. Maintenance of Field: Routine/Recurring: provide weekly landscape maintenance of San Bernardino Soccer Complex, including mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. 2. Provide space for storage container: CITY will allow CSL to place one 30 foot storage container at the facility for storage of CSL's equipment. 3. Parking: CITY shall provide to CSL, three (3) designated parking spaces and ten (10) parking passes. Additional staff will be required to pay the standard parking fee. The CITY shall have exclusive right to collect and retain any and all parking and concessions fees unless otherwise specifically set forth herein. Parking fees shall not exceed five dollars ($5) per vehicle per day, and fifteen dollars ($15) per recreational vehicle per day. 1 Exhibit "A" 4. Sponsors: CITY shall permit CSL sponsors to promote and sell the sponsor's products without competition from like apparel vendors, subject to CITY approval. CSL sponsors shall be required to pay to CITY twenty-five percent (25%) of all gross sales as determined by CITY. CSL sponsor vendors shall also be required to pay to CITY their pro rata share of overnight security costs if booths are left set up overnight. 5. Field Prep: CITY shall provide FIFA regulation-size and smaller, modified-sized fields as specified by CSL, lined with CITY- provided nets and corner flags on each day of competition use. CITY shall provide trash receptacles placed throughout the facility and clean them as needed. CITY shall clean Restroom facilities as needed during events. 6. Opening / Closing of facility: The facility shall be open from one and one half(1 '/2 ) hours prior to the first game until one (1) hour past the end of the last game on each day of use. 7. Facility Fees: The CITY agrees to refund to CSL the facility use fees for any weekend of a CSL event that the CITY cancels which is not related to unplayable conditions caused by weather or natural event. No fees shall be refunded if cancellation of an event is caused by weather or other natural condition. B. CSL Responsibilities: 1. Use of Facilities: CSL will use San Bernardino Soccer Complex for its events, including, but not limited to, CSL League Play, CSL League Cup, Cal Cup and Spring Cup. The exact dates and number of fields for these events will be determined by CSL in the last week of December of each year for the following year. The months and weeks for these events are specified on Attachment A. CSL will have the option of reserving up to six (6) additional weekends, subject to availability of fields. CITY shall extend the right of first refusal to CSL for the six (6) additional dates at the agreed upon fee for its other events. Right of first refusal is defined as "In the event CITY has obtained a field rental request from someone other than CSL, CITY will first offer said dates to CSL at the same costs." CSL shall have 5 days to accept the offer or refuse it thereby allowing the CITY the opportunity to rent the fields to the other party. Should CSL exercise this reservation right for any of the optional dates, CSL will be required to confirm reservation of said dates with payment of fees to the CITY within 10 days of acceptance. CSL shall pay facility use fees for any event that CSL cancels. CSL shall not be responsible for payment of any fees for any date that CITY cancels with the exception of unplayable conditions caused by weather or natural event. 2 2. Facility Renovation: CSL shall have shared use of the North Storage Building located at the Soccer Complex. CSL shall provide tenant capital improvements valued at no less than $15,000 total over the term of this Agreement. CSL shall renovate the following interior spaces: A. Construction of a shared "Registration Office" comprised of/4 of the interior space. The office will be designed to accommodate a number of different users and shall be air-conditioned and heated. It shall have enough electrical outlets to handle a significant number of electrical demands including a 220 outlet. B. CITY may use or sublet "Registration Office" to other complex users when CSL is not hosting an event. CSL shall not sublet fields, building, or any other part of the facilities. C. CSL shall also renovate the two (2) existing private offices, which shall remain for the CSL's exclusive use during the term of this Agreement. D. CITY shall have unrestricted exclusive use of and access to a small janitor closet located in the North Building. E. CSL shall also renovate the remaining interior space and shall have exclusive use of the space for storage of assorted field equipment, ice machine, golf carts and other equipment needed to operate its events. F. The interior renovations shall be mutually designed by CSL and CITY. Neither party shall unreasonably withhold consent of the concepts of the redesign. Said redesign shall be submitted to CITY for approval by a licensed architect and shall be constructed by licensed contractors. All plans are subject to CITY approval. 3. Use of Gator: CSL will make available to CITY a used "Gator" for its use. CITY will conduct general maintenance and provide storage, however due to its "used" condition it is agreed that the CITY will not be liable for any major repairs with the exception of any damages resulting from CITY's negligent use and operation of equipment. CSL is permitted to use the Gator for its events at the complex. 3 4. Maintenance of Field and Facilities: CSL is permitted to drive automobiles or other vehicles on designated pathways to prepare for CSL events, provided these vehicles are properly escorted to avoid damage to irrigation system or other structures. CSL may also drive golf carts, provided they are driven safely along designated routes as determined by the CITY. CSL shall repair at its expense any damage to the irrigation system or other facility damage caused by CSL's vehicles. 5. Adherence to CITY Regulations: CSL shall 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. 6. Vendors: CSL may erect and maintain E-Z Up portable shelters, and, upon approval by the CITY, a retail product trailer. CSL and its sponsors may also exhibit and sell CSL tournament apparel, trinkets, and memorabilia, subject to CITY approval, without competition from vendors of like apparel. CSL shall not be required to pay a percentage of gross sales for its direct vending operations. However, CSL sponsor vendors shall be required to pay CITY twenty-five percent (25%) of gross sales as determined by the CITY. CSL sponsor vendors shall also be required to pay to CITY its pro rata share of overnight security costs if booths are left set up overnight. CSL may refer preferred and/or CSL sponsor vendors to CITY, however the decision on which vendors will be permitted rests exclusively with CITY. CITY shall not unreasonably withhold its permission to CSL sponsor vendors. 7. Advertising: CSL shall provide to CITY one full-page ad for the complex in its Coach's Handbook. CITY shall provide the artwork. IV. FEES: CSL shall pay the CITY Facility Fees for use of San Bernardino Soccer Complex as follows: $3,500 per 2-day weekend and $5,000 per 3-day weekend for full complex use of 17 fields; and $1,800 per weekend for League Play for use of half of the complex due to seasonal field renovations. CSL shall pay a $250 per day cleaning fee for events using the full complex (17 fields), and $125 per day cleaning fee for events using half of the complex. CSL shall schedule an average of four games per field, per day. CSL shall submit a refundable damage deposit of five thousand dollars ($5,000) upon execution of this Agreement refundable at the end of the fifth year of this Agreement if the Facility is in substantially the same condition it was in at the commencement of the Agreement. The fee for use of San Bernardino Soccer Complex facilities will be payable to the "City of San Bernardino"by the 15th of the month following the preceding month's events. 4 V. EMPLOYMENT AND INDEPENDENT CONTRACTORS: CSL, at CSL's own expense, may employ or contract such persons, as the CSL deems necessary to perform the services required of CSL by this Agreement. CSL 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. CSL agrees to provide worker's compensation insurance for their own employees, volunteers and agents and agrees to hold harmless, defend and indemnify the CITY for any and all claims arising out of any injury, disability, or death of any of CSL's employees, contractors, sponsors or agents. VI. DISCRIMINATION: CITY and CSL mutually agree that the activities provided under this Agreement and all employment offered by CITY and CSL 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. VII. INDEMNIFICATION: CSL 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 CSL, 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, CSL 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. CSL 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 CSL relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. VIII. INSURANCE: While not restricting or limiting the foregoing, during the term of this Agreement, CSL 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. 5 IX. 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. Attorneys' fees for the City Attorney and members of his office shall be calculated based on the market rate for comparable services. X. ASSIGNMENT. CSL shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the CSL'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 CSL of CSL's obligation to perform all other obligations to be performed by CSL hereunder for the term of this Agreement. XI. 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, Eastern Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. XII. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. XIII. 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. XIV. 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. XV. 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. 6 CITY OF SAN BERNARDINO -- COAST SOCCER LEAGUE, INC. USE OF FACILITIES AGREEMENT XVL 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 waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. XVIL AMENDMENTS TO THE AGREEMENT: This Agreement may only be changed by written amendment signed by authorized officials of CITY and CSL. No oral agreements shall be binding or of any effect on either party. XVIII.It is not the intent of the Parties that any rights in third parties be created by the terms and conditions agreed to herein. XIX. NOTICES Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO CSL: TO CITY: Bernard Towers City of San Bernardino Coast Soccer League President Parks, Recreation and Community 924 E. Chapman Avenue Services Department Orange, CA 92866 1350 South E Street San Bernardino, CA 92408 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. COAST SOCCER LEAGUE CITY OF SAN BERNARDINO By By Bernard Towers, President CSL Charles McNeely, City Manager Dated: , 2011 Dated: , 2011 Approved as to form: James F. Penman, City Attorney By: CITY OF SAN BERNARDINO COAST SOCCER LEAGUE, INC. USE OF FACILITIES AGREEMENT This Agreement, by and between Coast Soccer League, Inc. ("CSL") and the City of San Bernardino ("CITY"), provides for CSL's use of the San Bernardino Soccer Complex located at 2500 Pacific St., Highland, CA, 92346, owned by CITY, in accordance with the following terms and conditions: I. GENERAL: CSL shall have shared use of the playing fields and North Garage Storage Building at the San Bernardino Soccer Complex from May 1, 2011 through April 30, 2016 on select weekends, 6:00 AM to 9:00 PM, for regional soccer tournaments and league competitions. 11. TERM; TERMINATION: The term of this agreement shall be for five (5) years commencing on May 1, 2011 and ending on April 30, 2016. This Agreement may be terminated at any time on thirty (30) days' written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. Should the CSL fail to faithfully perform all the terms and conditions of this Agreement, the CITY may summarily terminate this Agreement by giving CSL fourteen(14) calendar days' written notice of termination. II. USE OF SAN BERNARDINO SOCCER COMPLEX: A. CITY's Responsibilities: 1. Maintenance of Field: Routine/Recurring: provide weekly landscape maintenance of San Bernardino Soccer Complex, including mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. 2. Provide space for storage container: CITY will allow CSL to place one 30 foot storage container at the facility for storage of CSL's equipment. 3. Parking: CITY shall provide to CSL, three (3) designated parking spaces and ten (10) parking passes. Additional staff will be required to pay the standard parking fee. The CITY shall have exclusive right to collect and retain any and all parking and concessions fees unless otherwise specifically set forth herein. Parking fees shall not exceed five dollars ($5) per vehicle per day, and fifteen dollars ($15) per recreational vehicle per day. 1 4. Sponsors: CITY shall permit CSL sponsors to promote and sell the sponsor's products without competition from like apparel vendors, subject to CITY approval. CSL sponsors shall be required to pay to CITY twenty-five percent (25%) of all gross sales as determined by CITY. CSL sponsor vendors shall also be required to pay to CITY their pro rata share of overnight security costs if booths are left set up overnight. 5. Field Prep: CITY shall provide FIFA regulation-size and smaller, modified-sized fields as specified by CSL, lined with CITY- provided nets and corner flags on each day of competition use. CITY shall provide trash receptacles placed throughout the facility and clean them as needed. CITY shall clean Restroom facilities as needed during events. 6. Opening / Closing of facility: The facility shall be open from one and one half(1 %2 ) hours prior to the first game until one (1) hour past the end of the last game on each day of use. 7. Facility Fees: The CITY agrees to refund to CSL the facility use fees for any weekend of a CSL event that the CITY cancels which is not related to unplayable conditions caused by weather or natural event. No fees shall be refunded if cancellation of an event is caused by weather or other natural condition. B. CSL Responsibilities: 1. Use of Facilities: CSL will use San Bernardino Soccer Complex for its events, including, but not limited to, CSL League Play, CSL League Cup, Cal Cup and Spring Cup. The exact dates and number of fields for these events will be determined by CSL in the last week of December of each year for the following year. The months and weeks for these events are specified on Attachment A. CSL will have the option of reserving up to six (6) additional weekends, subject to availability of fields. CITY shall extend the right of first refusal to CSL for the six (6) additional dates at the agreed upon fee for its other events. Right of first refusal is defined as "In the event CITY has obtained a field rental request from someone other than CSL, CITY will first offer said dates to CSL at the same costs." CSL shall have 5 days to accept the offer or refuse it thereby allowing the CITY the opportunity to rent the fields to the other party. Should CSL exercise this reservation right for any of the optional dates, CSL will be required to confirm reservation of said dates with payment of fees to the CITY within 10 days of acceptance. CSL shall pay facility use fees for any event that CSL cancels. CSL shall not be responsible for payment of any fees for any date that CITY cancels with the exception of unplayable conditions caused by weather or natural event. 2 ® 2. Facility Renovation: CSL shall have shared use of the North Storage Building located at the Soccer Complex. CSL shall provide tenant capital improvements valued at no less than $15,000 total over the term of this Agreement. CSL shall renovate the following interior spaces: A. Construction of a shared "Registration Office" comprised of of the interior space. The office will be designed to accommodate a number of different users and shall be air-conditioned and heated. It shall have enough electrical outlets to handle a significant number of electrical demands including a 220 outlet. B. CITY may use or sublet "Registration Office" to other complex users when CSL is not hosting an event. CSL shall not sublet fields, building, or any other part of the facilities. C. CSL shall also renovate the two (2) existing private offices, which shall remain for the CSL's exclusive use during the term of this Agreement. D. CITY shall have unrestricted exclusive use of and access to a small janitor closet located in the North Building. E. CSL shall also renovate the remaining interior space and shall have exclusive use of the space for storage of assorted field equipment, ice machine, golf carts and other equipment needed to operate its events. F. The interior renovations shall be mutually designed by CSL and CITY. Neither party shall unreasonably withhold consent of the concepts of the redesign. Said redesign shall be submitted to CITY for approval by a licensed architect and shall be constructed by licensed contractors. All plans are subject to CITY approval. 3. Use of Gator: CSL will make available to CITY a used "Gator" for its use. CITY will conduct general maintenance and provide storage, however due to its "used" condition it is agreed that the CITY will not be liable for any major repairs with the exception of any damages resulting from CITY's negligent use and operation of equipment. CSL is permitted to use the Gator for its events at the complex. 3 4. Maintenance of Field and Facilities: CSL is permitted to drive automobiles or other vehicles on designated pathways to prepare for CSL events, provided these vehicles are properly escorted to avoid damage to irrigation system or other structures. CSL may also drive golf carts, provided they are driven safely along designated routes as determined by the CITY. CSL shall repair at its expense any damage to the irrigation system or other facility damage caused by CSL's vehicles. 5. Adherence to CITY Regulations: CSL shall 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. 6. Vendors: CSL may erect and maintain E-Z Up portable shelters, and, upon approval by the CITY, a retail product trailer. CSL and its sponsors may also exhibit and sell CSL tournament apparel, trinkets, and memorabilia, subject to CITY approval, without competition from vendors of like apparel. CSL shall not be required to pay a percentage of gross sales for its direct vending operations. However, CSL sponsor vendors shall be required to pay CITY twenty-five percent (25%) of gross sales as determined by the CITY. CSL sponsor vendors shall also be required to pay to CITY its pro rata share of overnight security costs if booths are left set up overnight. CSL may refer preferred and/or CSL sponsor vendors to CITY, however the decision on which vendors will be permitted rests exclusively with CITY. CITY shall not unreasonably withhold its permission to CSL sponsor vendors. 7. Advertising: CSL shall provide to CITY one full-page ad for the complex in its Coach's Handbook. CITY shall provide the artwork. IV. FEES: CSL shall pay the CITY Facility Fees for use of San Bernardino Soccer Complex as follows: $3,500 per 2-day weekend and $5,000 per 3-day weekend for full complex use of 17 fields; and $1,800 per weekend for League Play for use of half of the complex due to seasonal field renovations. CSL shall pay a $250 per day cleaning fee for events using the full complex (17 fields), and $125 per day cleaning fee for events using half of the complex. CSL shall schedule an average of four games per field, per day. CSL shall submit a refundable damage deposit of five thousand dollars ($5,000) upon execution of this Agreement refundable at the end of the fifth year of this Agreement if the Facility is in substantially the same condition it was in at the commencement of the Agreement. The fee for use of San Bernardino Soccer Complex facilities will be payable to the "City of San Bernardino"by the 15th of the month following the preceding month's events. 4 V. EMPLOYMENT AND INDEPENDENT CONTRACTORS: CSL, at CSL's own expense, may employ or contract such persons, as the CSL deems necessary to perform the services required of CSL by this Agreement. CSL 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. CSL agrees to provide worker's compensation insurance for their own employees, volunteers and agents and agrees to hold harmless, defend and indemnify the CITY for any and all claims arising out of any injury, disability, or death of any of CSL's employees, contractors, sponsors or agents. VI. DISCRIMINATION: CITY and CSL mutually agree that the activities provided under this Agreement and all employment offered by CITY and CSL 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. VII. INDEMNIFICATION: CSL 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 CSL, 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, CSL 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. CSL 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 CSL relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. VIII. INSURANCE: While not restricting or limiting the foregoing, during the term of this Agreement, CSL 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. 5 IX. 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. Attorneys' fees for the City Attorney and members of his office shall be calculated based on the market rate for comparable services. X. ASSIGNMENT. CSL shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the CSL'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 CSL of CSL's obligation to perform all other obligations to be performed by CSL hereunder for the term of this Agreement. XI. 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, Eastern Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. XII. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. XIII. 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. XIV. 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. XV. 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. 6 CITY OF SAN BERNARDINO -- COAST SOCCER LEAGUE, INC. USE OF FACILITIES AGREEMENT XVI. 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 waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. XVII. AMENDMENTS TO THE AGREEMENT: This Agreement may only be changed by written amendment signed by authorized officials of CITY and CSL. No oral agreements shall be binding or of any effect on either party. XVIII.It is not the intent of the Parties that any rights in third parties be created by the terms and conditions agreed to herein. XIX. NOTICES Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service,postage prepaid and addressed as follows: TO CSL: TO CITY: Bernard Towers City of San Bernardino Coast Soccer League President Parks, Recreation and Community 924 E. Chapman Avenue Services Department Orange, CA 92866 1350 South E Street San Bernardino, CA 92408 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. COAST SOCCER LEAGUE CITY OF SAN BERNARDINO By By Bernard Towers, President CSL Charles McNeely, City Manager Dated: , 2011 Dated: , 2011 Approved as to form: James F. Pe n, City Attt ey By: 7