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HomeMy WebLinkAbout2011-090 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IMPORTANT NOTE: AGREEMENT FAILED TO MEET EXECUTION DEADLINE RESOLUTION NO. 2011-90 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A USE OF FACILITIES AGREEMENTS BY AND BETWEEN CALIFORNIA STATE UNIVERSITY, SAN BERNARDINO AND THE CITY OF SAN BERNARDINO; ALLOWING FOR USE OF FISCALINI FIELD FROM JANUARY 1,2011 THROUGH DECEMBER 31, 2011, WITH THE OPTION OF THREE (3) ONE-YEAR RENEWALS; AND REPEALING RESOLUTIO~ 2010-26. 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 a copy of which is attached hereto, marked as Exhibit "A" and incorporated herein by reference as fully as though set forth at length; and Section 2. That the authorization to execute the above referenced Facility Use Agreement is rescinded if the party to the agreement fails to execute it within ninety (90) days of the passage of this resolution. Section 3. That the implementation date of the Facility Use Agreement with California State University, San Bernardino is January l, 20 1 L therefore, any action taken between January 1,2011 and the date that this Resolution is adopted is hereby ratified; Section 4. That resolution No. 2010-26 adopted on February 16,2010 is hereby repealed. III III I I I 11/ 14 VACANT 15 16 17 18 19 20 21 1 2 3 4 5 6 7 8 9 10 11 12 13 22 23 24 25 26 27 28 2011-90 RESOLUTION NO. 2011-90 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A USE OF FACILITIES AGREEMENTS BY AND BETWEEN CALIFORNIA STATE UNIVERSITY, SAN BERNARDINO AND THE CITY OF SAN BERNARDINO; ALLOWING FOR USE OF FISCALINI FIELD FROM JANUARY 1,2011 THROUGH DECEMBER 31, 2011, WITH THE OPTION OF THREE (3) ONE-YEAR RENEWALS; AND REPEALING RESOLUTION 2010-26. 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 regular Meeting, thereof, held on the 18th wit: day of April ,2011, by the following vote to COUNCIL MEMBERS A YES NAYS ABSTAIN ABSENT MARQUEZ X BRINKER X SHORETT X KELLEY X JOHNSON X MCCAMMACK x ~k.~ Rac G. Clark, City Clerk The foregoing resolution is hereby approved this 19/1i day of April ~~~ "-J PatriCK-J:-Morris, Mayor City of San Bernardino ,2011. Approved as to Form: ~' 2011-90 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 FiscaJini Field, owned by the CITY, in accordance with the following terms and conditions: I. GENERAL: UNIVERSITY shall have exclusive use of FiscaJini Field from January I, 2011 through May 26, 2011 daily, 8:00 AM to 10:00 PM for practices and games and shared use from May 27, 2011 through October 31, 2011, Monday through Friday, 8:00 AM to 5:00 PM for practices. n. TERM: The term of this agreement shall be for one (1) year commencing on January I, 2011 and ending on December 31, 2011; 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 shared use of the baseball field and exclusive use of the clubhouse and batting cages. III. USE OF FISCALINI FIELD: A. CITY's Responsibilities: I. Maintenance of Field: a) Routine/Recurring: provide weekly landscape maintenance of Fiscalini Field, including I inch height mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. Routine maintenance of field shall occur Wednesday of each week and no play shall occur on this date by any users on the infield or outfield. All field users shall meet each Wednesday at 9:00 AM with the CITY maintenance 2011-90 EXHIBIT A representative, as needed, to determine current maintenance needs. b) Annual Renovation November 151 through December 31st: complete irrigation system repair (automated and manual), grass scalping to Y, 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 and cages: CITY will allow UNIVERSITY to use the clubhouse and batting cages, 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 entire field and facility use to designated CITY co-sponsored Pony youth tournaments three (3) weeks/weekends during UNIVERSITY use: January 13-16, April 15-17, and July 15-August 1. During CITY designated use, daily play shall comply with the terms and 2 EXHIBIT A 2011-90 conditions of the "Rules for Fiscalini Maintenance" in Attachment "I" UNIVERSITY will not utilize batting cages or club house during designated joint use tournament play. 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 Attachment "I". 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. 6. Public Access: UNIVERSITY shall be permitted to charge fees for access to sporting events on designated competition dates. UNIVERSITY is responsible for furnishing signage advertising CITY approved fee schedules and spectator rules while attending events. UNIVERSITY shall be permitted to deny access to patrons with pets, leashed or unleashed, during competition events; with the exception of disabled patrons utilizing pets as handicap aids. 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 I st of January each year. In addition, UNIVERSITY will provide the following services during the term of this agreement: 3 2011-90 EXHIBIT A · Provide annual facility renovations/capital improvements approved by city staff · Provide basic user upkeep, i.e. dragging, chalking, watering and field preparati on · Maintain all aspects of the interior and exterior of the Players' Clubhouse and batting cages 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, defend 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: 4 2011-90 EXHIBIT A 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 5 2011-90 EXHIBIT A 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 courts shall determine which 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 6 EXHIBIT A 2011-90 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. 7 EXHIBIT A 2011-90 CITY OF SAN BERNARDINO CALIFORNIA STATE UNIVERSITY - SAN BERNARDINO USE OF FACILITIES AGREEMENT 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 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 Procurement and Support Services Officer By Charles McNeely, City Manager Date Date Approved as to form: James F. Penman, City Attorney By 8 ATTACHMENT I 2011-90 Rules for Fiscalini Maintenance Unless others wise stated below, all terms and conditions of maintenance and use set forth below are to be followed by USERS authorized by the CITY to utilize and/or maintain Fiscalini Field. I) Play not to exceed two games a day and 5 games per week unless pnor authorization has been secured by CITY management. 2) Field shall be mowed a minimum of once per week by a qualified CITY maintenance staff with a mower designed for athletic field mowing at a height that is associated with good athletic field maintenance -I inch suggested. 3) Each user shall furnish their own equipment (rake, drag, tamp, hose coupler, broom, small utility vehicle). 4) The field and bull-pens shall be repaired immediately after every use by the user. 5) The cut outs, baselines, and home plate areas must be raked and NOT dragged. 6) Maintenance vehicles must remain on the outfield warning track only. 7) No maintenance vehicles in the infield, except for a light weight vehicle to "drag" with. 8) No vehicles may be driven in front of the dugouts, across the plate, or in the baselines. 9) When dragging the infield the drag should remain one foot from the edge of the grass. 10) Mound should be repaired and tarped after every use. II) All dugout trash should be picked-up and dugouts should be swept after each use. 12) No materials should be added to the field without CITY management and/or Maintenance Division Manager approval (ie drying agents, field conditioners etc.). 13) All users shall have a designated maintenance worker to receive training from the CITY approved athletic field maintenance personnel. 14) Any destruction, vandalism, theft shall be reported immediately to the CITY and fixed by the user immediately. IS) Any general "wear and tear" irrigation issues should be reported to the CITY immediately for prompt repair. Irrigation damage resulting from USER neglect shall be reported to the CITY immediately and repaired by the USER within 24 hours. 16) All users shall provide a detailed use schedule to the CITY for approval prior to use. 17) All USERS will be required to refrain from field use during scheduled annual field maintenance and renovation. 18) National tournaments of any USER can exceed the number of games limitations with CITY approval, however tournaments must have national sports tourism benefit and implications. 19) Annual renovation of the field will occur November I - December 31 of each year. During this time, no play by any USER shall occur on the infield or outfield. 20) Routine CITY maintenance of field will occur Wednesday of each week; during such time no play by any USER shall occur on the infield or outfield. Exhibit A 2011-90 FAILED TO MEET EXECUTION DEADLINE CITY OF SAN BERNARDINO CALIFORNIA ST ATE 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 exclusive use of Fiscalini Field from January 1, 2011 through May 26, 2011 daily, 8:00 AM to 10:00 PM for practices and games and shared use from May 27, 2011 through October 31, 2011, Monday through Friday, 8:00 AM to 5:00 PM for practices. II. TERM: The term of this agreement shall be for one (1) year commencing on January 1, 201] and ending on December 31, 20] 1; 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 shared use of the baseball field and exclusive use of the clubhouse and batting cages. III. USE OF FISCALINI FIELD: A. CITY's Responsibilities: ] . Maintenance of Field: a) Routine/Recurring: provide weekly landscape maintenance of Fiscalini Field, including ] inch height mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. Routine maintenance of field shall occur Wednesday of each week and no play shall occur on this date by any users on the infield or outfield. All field users shall meet each Wednesday at 9:00 AM with the CITY maintenance 2011-90 representative, as needed, to determine current maintenance needs. b) Annual Renovation November 151 through December 31 st: complete irrigation system repair (automated and manual), grass scalping to Yz 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 and cages: CITY will allow UNIVERSITY to use the clubhouse and batting cages, 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 entire field and facility use to designated CITY co-sponsored Pony youth tournaments three (3) weeks/weekends during UNIVERSITY use: January 13-16, April 15-17, and July IS-August 1. During CITY designated use, daily play shall comply with the terms and 2 2011-90 conditions of the "Rules for Fiscalini Maintenance" in Attachment 3. "1" UNIVERSITY will not utilize batting cages or club house during designated joint use tournament play. 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 Attachment "1". 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. 6. Public Access: UNIVERSITY shall be permitted to charge fees for access to sporting events on designated competition dates. UNIVERSITY is responsible for furnishing signage advertising CITY approved fee schedules and spectator rules while attending events. UNIVERSITY shall be permitted to deny access to patrons with pets, leashed or unleashed, during competition events; with the exception of disabled patrons utilizing pets as handicap aids. 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 151 of January each year. In addition, UNIVERSITY will provide the following services during the term of this agreement: 3 2011-90 · Provide annual facility renovations/capital improvements approved by city staff · Provide basic user upkeep, i.e. dragging, chalking, watering and field preparation · Maintain all aspects of the interior and exterior of the Players' Clubhouse and batting cages 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, defend 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: 4 2011-90 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 5 2011-90 combined single limit, nammg 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 courts shall determine which 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 2011-90 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. 7 2011-90 CITY OF SAN BERNARDINO CALIFORNIA ST ATE UNIVERSITY - SAN BERNARDINO USE OF FACILITIES AGREEMENT 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 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 By Procur ent and Support Services Officer o/1'/+' f City of San Bernardino Parks, Recreation and Community Services Department 1350 South "E" Street San Bernardino, CA 92408 B ~ Charles McNeely, C <.Il1ll1 \ Date Date Approved as to form: James F. Penman, City Attorney BZ!;k\AG-w~ 8 2011-90 ATTACHMENT 1 Rules for Fiscalini Maintenance Unless others wise stated below, all terms and conditions of maintenance and use set forth below are to be followed by USERS authorized by the CITY to utilize and/or maintain Fiscalini Field. 1) Play not to exceed two games a day and 5 games per week unless pnor authorization has been secured by CITY management. 2) Field shall be mowed a minimum of once per week by a qualified CITY maintenance staff with a mower designed for athletic field mowing at a height that is associated with good athletic field maintenance -1 inch suggested. 3) Each user shall furnish their own equipment (rake, drag, tamp, hose coupler, broom, small utility vehicle). 4) The field and bull-pens shall be repaired immediately after every use by the user. 5) The cut outs, baselines, and home plate areas must be raked and NOT dragged. 6) Maintenance vehicles must remain on the outfield warning track only. 7) No maintenance vehicles in the infield, except for a light weight vehicle to "drag" with. 8) No vehicles may be driven in front of the dugouts, across the plate, or in the baselines. 9) When dragging the infield the drag should remain one foot from the edge of the grass. 10) Mound should be repaired and tarped after every use. 11) All dugout trash should be picked-up and dugouts should be swept after each use. 12) No materials should be added to the field without CITY management and/or Maintenance Division Manager approval (ie drying agents, field conditioners etc.). 13) All users shall have a designated maintenance worker to receive training from the CITY approved athletic field maintenance personnel. 14) Any destruction, vandalism, theft shall be reported immediately to the CITY and fixed by the user immediately. 15) Any general "wear and tear" irrigation issues should be reported to the CITY immediately for prompt repair. Irrigation damage resulting from USER neglect shall be reported to the CITY immediately and repaired by the USER within 24 hours. 16) All users shall provide a detailed use schedule to the CITY for approval prior to use. 17) All USERS will be required to refrain from field use during scheduled annual field maintenance and renovation. 18) National tournaments of any USER can exceed the number of games limitations with CITY approval, however tournaments must have national sports tourism benefit and implications. 19) Annual renovation of the field will occur November 1 - December 31 of each year. During this time, no play by any USER shall occur on the infield or outfield. 20) Routine CITY maintenance of field will occur Wednesday of each week; during such time no play by any USER shall occur on the infield or outfield.