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ORIGINAL
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Kevin Hawkins, Director
Subject: Resolution authorizing the City
Manager to execute a revised Facility Use
Agreement with the San Bernardino City
Unified School District relative to the use of
156 parking spaces in the parking lot at
Speicher Park, and ratifying any action
taken between October 7, 2008 and the date
that this Resolution is adopted.
Dept: Parks, Recreation and
Community Services Dept.
Date: November 25, 2008
Synopsis of Previous Council Action:
MICC Meeting Date: December 15,2008
Oct. 6, 2008 - Council adopted Resolution No. 2008-385 authorizing the City Manager to
execute a Facility Use Agreement with the San Bernardino City Unified School District relative
to the use of 156 designated parking spaces in the parking lot at Speicher Park.
Recommended Motion:
Adopt Resolution.
/
Contact person:
Kevin Hawkins
Phone: 384-5233
Supporting data attached:
Yes
Ward: ih Ward
FUNDING REQUIREMENTS:
Amount: No cost to the City.
Source: (Acct Nn)
(Acct Description)
Council Notes:
~o .?L:v8- 455
Finance:
Agenda Item No. -.l7
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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 revised Facility Use Agreement with the San Bernardino City
Unified School District relative to the use of 156 parking spaces in the parking lot at Speicher
Park.
Background:
Council authorized execution of a Facility Use Agreement with the San Bernardino Unified
School District (SBUSD) on October 6, 2008. The term of the Facility Use Agreement is
October 7, 2008 through October 6, 2010. In lieu of paying facility rental fees, the Agreement
stated that the District agrees to the joint use of the track at San Gorgonio High School.
Subsequently, the District contacted the City, requesting changes to the Agreement that
included additional indemnification language to cover the District for the City's use of the track
at San Gorgonio High School. The District has assured the City that the track can be used for
their local track meet on the first Saturday in April, and the State Track event on the first
Saturday in June in each of the two years covered by the Agreement; however, that process can
be handled adequately outside of the parameters of this Agreement.
At the request of the City Attorney's Office, Tim Sabo, Special Counsel, was consulted
regarding the request for changes to the Agreement. He advised that the preferred methodology
to change the Agreement was to remove the sentence referencing the reciprocal services
involving the City's use of the track at the High School, then send it back to Council for
authorization.
The proposed change in the Agreement is as follows:
4. PAYMENT AND RECIPROCAL SERVICES:
In lieu of paying facility rental fees, DISTRICT will provide tile City 'l\'itll joint use sf tile
tract at San Gsrgonio Higll Selloel fer a lecal tmck meet event en tile first Satmeay in
l'.f1ril, aHa a State traek meet event on tlle first Satmaay in JmlC, in eaell of tlle t'l\'8 )'ears
e8veree by tIIis ,\greemeat. DISTRICT will also provide security services for the Speicher
Park parking lot. Further, the parking lot was resurfaced during the first quarter of 2008;
therefore, the DISTRICT commits to restore the parking lot to that condition at the
conclusion of the project in October of 20 I 0 when the parking lot is returned to the CITY
for their use. At that time, the Public Service Department Deputy Director - Street
Division will provide to the DISTRICT information relative to the level of
repair/resurfacing required to restore the parking lot to its previous condition.
Financial Impact:
There is no impact to the General Fund.
Recommendation:
Adopt Resolution.
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
REVISED FACILITY USE AGREEMENT WITH THE SAN BERNARDINO CITY
UNIFIED SCHOOL DISTRICT RELATIVE TO THE USE OF 156 PARKING SPACES
IN THE PARKING LOT AT SPEICHER PARK, AND RATIFYING ANY ACTION
TAKEN BETWEEN OCTOBER 7, 2008 AND THE DATE THAT THIS RESOLUTION
IS ADOPTED.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION I. That the City Manager is hereby authorized to execute a revised Facility
Use Agreement with the San Bernardino City Unified School District for the period of October
7,2008 through October 6.2010. a copy of which is attached hereto. marked Attachment "A"
and incorporated herein by reference as fully as though set forth at length; and
SECTION 2. That the authorization granted hereunder shall expire and be void and of
no further effect if the Facility Use Agreement is not executed by both parties and returned to
the Office of the City Clerk within sixty (60) days following effective date of the Resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A
REVISED FACILITY USE AGREEMENT WITH THE SAN BERNARDINO CITY
UNIFIED SCHOOL DISTRICT RELATIVE TO THE USE OF 156 PARKING SPACES
IN THE PARKING LOT AT SPEICHER PARK, AND RATIFYING ANY ACTION
TAKEN BETWEEN OCTOBER 7, 2008 AND THE DATE THAT THIS RESOLUTION
IS ADOPTED.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
meeting thereof, held
on the day of
, 2008. by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
ESTRADA
BAXTER
BRINKER
(VACANT)
KELLEY
JOHNSON
MCCAMMACK
Rachel G. Clark. City Clerk
The foregoing resolution is hereby approved this
day of
Patrick J. Morris, Mayor
City of San Bernardino
APproved.a. s tOf~:
-;~11r~
Timothy Sabo;
Special Counsel
CITY OF SAN BERNARDINO
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT
REVISED FACILITY USE AGREEMENT
This revised Agreement, by and between the San Bernardino City Unified School District
("DISTRICT") and the City of San Bernardino ("CITY"), provides for the DISTRICT's use of
156 parking spaces with chain link fence at Speicher Park, owned by the CITY, in accordance
with the following terms and conditions:
1. GENERAL:
The City agrees to provide DISTRICT with the use of the 156 designated parking
spaces at Speicher Park as delineated in Section (3) (A) of this Agreement.
2. TERM:
The term of this Agreement shall be for two (2) years commencing on October 7, 2008
and ending on October 6, 2010.
3. USE OF CITY FACILITIES:
A. CITY:
1. Facility Use: CITY will allow DISTRICT to make use of 156 parking
spaces at Speicher Park.
B. DISTRICT:
1. Use of Facilities: DISTRICT will use the 156 designated parking
spaces in the parking lot at Speicher Park during their construction
project at San Gorgonio High School.
2. Maintenance of Parking Lot: DISTRICT will keep the parking lot
clean and free of trash throughout the duration of this contract.
4. PAYMENT AND RECIPROCAL SERVICES:
DISTRICT will also provide security services for the Speicher Park parking lot.
Further, the parking lot was resurfaced during the first quarter of 2008; therefore, the
DISTRICT commits to restore the parking lot to that condition at the conclusion of the
project in October of 2010 when the parking lot is returned to the CITY for their use.
At that time, the Public Services Department Deputy Director - Street Division will
provide to the District information relative to the level of repair/resurfacing required to
restore the parking lot to its previous condition.
5. INDEMNITY
DISTRICT 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 DISTRICT, 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, DISTRICT 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. DISTRICT 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 DISTRICT
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.
6. INSURANCE:
While not restricting nor limiting the foregoing, during the term of this Agreement,
DISTRICT 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 $1,000,000.00 per occurrence combined single limit,
naming the City of San Bernardino, its 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 with respect
to any losses or liability arising directly or indirectly from the insureds 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
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that the insurance policy shall not be terminated or materially altered without thirty
days prior notice to the City.
7. 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
201 A North "E" Street, Suite 103
San Bernardino, CA 92401
Phone: (909) 384-5233
Fax (909) 384-5160
TO THE DISTRICT:
San Bernardino City Unified School District
777 No. F Street
San Bernardino, CA 92410
Phone: (909) 381-1238
8. ATTORNEY'S 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.
9. 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 US. 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.
10. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
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11. 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.
12. 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
13. 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
14. 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
15. 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.
16. TERMINATION:
The CITY or DISTRICT may terminate this Agreement by giving the other party thirty
(30) days advance written notice of termination. Should DISTRICT fail to faithfully
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CITY OF SAN BERNARDINO
SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT
REVISED FACILITY USE AGREEMENT
perform all the terms and conditions of this Agreement, CITY may summarily terminate
this Agreement by giving written notice of termination of this Agreement.
San Bernardino City Unified
School District
777 No. F Street
San Bernardino, CA 92410
City of San Bernardino
Parks, Recreation and
Community Services
201 A North "E" Street, Ste. 103
San Bernardino, CA 92401
By
By
Mark Weinberg,
Interim City Manager
Date
Date
Approved as to form: I {;
- ~ \ 'cJ
By \ /- '. y.' ',41-
Special Cdunsel
Date I "J-I 'J-! tJ P.
i I
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