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HomeMy WebLinkAbout2012-037 1 RESOLUTION NO. 2012-37 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE PATRONS OF THE ROOSEVELT BOWL FOR THE 4 PROVISION OF SUPPORT SERVICES FOR MARKET NIGHT AT PERRIS HILL PARK AND RATIFYING ANY ACTION TAKEN BETWEEN APRIL 17, 2010 AND THE DATE THAT THIS RESOLUTION IS ADOPTED 2 3 5 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 9 SECTION 1. The City Manager is hereby authorized to execute on behalf of the City an Agreement between the City of San Bernardino and the Patrons of the Roosevelt Bowl relative to 10 11 12 13 support services for Market Night at Perris Hill Park, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set fort at length. SECTION 2. That the implementation date ofthe Ag.reement is April 17, 2010; therefore any action taken between April17, 2010 and the date that this Resolution is adopted is hereby 14 ratified. 15 SECTION 3. That the authorization to execute the above referenced Agreement is 16 rescinded if the parties to the Agreement fail to execute it within sixty 60 days of the passage of this 17 Resolution. 18 IIII 19 IIII 20 IIII 21 IIII 22 IIII 23 IIII 24 IIII 25 IIII 26 IIII 27 IIII 28 IIII 1 2012-37 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE PATRONS OF THE ROOSEVELT BOWL FOR THE PROVISION OF SUPPORT SERVICES FOR MARKET NIGHT AT PERRlS HILL PARK AND RATIFYING ANY ACTION TAKEN BETWEEN APRIL 17, 2010 AND THE DATE THAT THIS RESOLUTION IS ADOPTED 2 3 4 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 ioint regular meeting thereof, held on the 7 8 5th day of March , 2012, by the following vote, to wit: 9 Council Members: AYES NAYS ABSTAIN ABSENT MARQUEZ x JENKINS x VALDIVIA x SHORETT x KELLEY x JOHNSON x McCAMMACK x 10 11 12 13 14 15 16 17 18 19 George anna, City Clerk City of San Bernardino 20 t1: 21 The foregoing resolution is hereby approved this .v--r~ay of March ,2012. 22 23 24 25 Approved as to Form: 26 JAMES F. PENMAN, City Attorney 27 2 28 2012-37 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PATRONS OF THE ROOSEVELT BOWL This Agreement is entered into this 5th day of March, 2012, by and between the City of San Bernardino ("City") and Patrons of the Roosevelt Bowl a 501(c)(3) non-profit organization ("Organization"), sometimes jointly referred to herein as Parties. Recitals: WHEREAS, Organization has requested support services from City in order to assist in defraying the expenses connected with the conduct of events related to their Market Night Program at Perris Hill Park the Park for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City owned facility; and, WHEREAS, the support services proposed to be provided by the City are for a valid municipal purpose, to wit: for the conduct of events related to the Organization s Weekly Market Night Program ("the Program") in Perris Hill Park for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City owned facility; and, WHEREAS, the Patrons of the Roosevelt Bowl was established for the sole purpose of providing financial physical and program support for arts, culture, entertainment and community activities at the Roosevelt Bowl Outdoor Amphitheater in San Bernardino's Perris Hill Park; and, WHEREAS, the weekly Market Nights at Perris Hill Park will be held during the months of May through October, inclusive; Now therefore for the consideration hereinafter set forth the Parties do hereby agree as follows: 1. The recitals set forth above are hereby repeated and made a part hereof and are hereby deemed to be true. 2. Term. This Agreement is for an initial term commencing April 17, 2010 and ending on April 16, 2014. The Agreement may be renewed upon the written concurrence of the Parties executed on or before the expiration of the then current term. Any renewal shall be upon such terms and conditions as shall be mutually agreeable to the Parties and incorporated into the written renewal. 3. In support of the Program the City hereby agrees to the following: A. Electricity. The City shall be responsible for the cost of electricity necessary to operate approved concessions and facilities of the Program. Approved concessions and facilities shall be those set forth on a list presented to the Director of Parks, Recreation and Community Services by the Organization at least thirty days prior to the first day of the Program. CITY OF SAN BERNARDINO PATRONS OF ROOSEVELT BOWL Page 1 2012-37 Organization shall be responsible for the installation and all costs associated with the operation of any portable electrical system required to provide electricity to any individual vendor. B. Parking/Signage/Barricades: The City shall post or cause to be posted, with the assistance of Organization and in conformance with the law, 25 temporary "No Parking after 3 :00 p m on Tuesday" signs to be placed along the Park roadway on the morning of the Program. The City will barricade, or cause to be barricaded, the Park roadway in conformance with the law as needed before during and after the Program. C. Parks and Recreation Storage: The City shall provide space in the former ticket office and adjoining room at Fiscalini Field for storage and the conduct of meetings by Organization, for placement of the temporary electrical system, for storage of cardboard trash containers, for storage of no parking signs and miscellaneous supplies. The space shall be made available until such time as the Patrons/Junior University develop their own on site storage facility or the expiration of this Agreement whichever occurs first. D. Police: The Police Department shall provide police officers at no cost to the Organization for the Program in the numbers and under the terms and conditions specified by the Police Chief. E. Street Banners: While Market Night is in season the City will provide use of the banner location on Highland Avenue and other locations as available. Banner shall be mounted by City Employees. F. Maintenance: City shall provide an adequate number of bags and cardboard trash receptacles, as determined by City, to collect the refuse of the attendees. The refuse receptacles shall be emptied by Market Night staff into a 3-cubic yard container with weekly service which the Organization will pay to lease from the City. 4. Accountability and Use of Funds by Organization. Organization is solely responsible for the financial support, administration and management of Program. Organization hereby covenants and agrees that one hundred percent (100%) of its weekly net profit (weekly revenue minus weekly expenses) will be committed and spent on improvements to the Roosevelt Bowl. Organization will provide a monthly report to the Director of Parks, Recreation and Community Services listing vendors, attendance, expenses and cash receipts. Additionally, Organization will provide monthly financial statements to the Director, which shall include but not be limited to, the amount of funds spent by Organization on improvements to the Roosevelt Bowl. Organization further agrees to permit the City, its agents and representatives, at reasonable intervals at any and all times upon reasonable advance notice, to inspect all books, records and accounts for the weekly Market Night events. CITY OF SAN BERNARDINO PATRONS OF ROOSEVELT BOWL Page 2 2012-37 5. Indemnity. Organization 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 Organization, its employees, agents, concessionaires 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 Organization agrees to protect and defend at its own expense, including attorneys' 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. Organization 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 Organization relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 6. Insurance. While not restricting or limiting the foregoing, during the term of this Agreement Organization shall maintain in effect policies of comprehensive public, general and automobile liability insurance and all such riders as are related to the operation of the Program in the amount of $2,000,000 per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees and agents as additional insureds. The policy shall be without right of subrogation against the City. The insurance provided shall carry the endorsement that "This insurance is primary and noncontributory as respects any loss or liability arising directly or indirectly from the insured's operations." A certificate of insurance evidencing such coverage shall be provided to the City's Risk Manager with the added notation that the insurance policy shall not be terminated or materially altered without thirty days' prior written notice to the City. 7. Organization shall obtain from the City and all other appropriate agencies all such permits and approvals as shall be required under law for the conduct of the Program or any part thereof. 8. Non-discrimination. In the performance of this Agreement and in the hiring and recruitment of employees Organization shall not engage in nor permit its officers, employees or agents to engage in discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation or any other status protected by law. 9. Assignment. Organization shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the Organization'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 CITY OF SAN BERNARDINO PATRONS OF ROOSEVELT BOWL Page 3 2012-37 release Organization of Organization's obligation to perform all other obligations to be performed by Organization hereunder for the term of this Agreement. 10. Termination. This Agreement may be terminated by either Party upon the giving of thirty (30) days' prior written notice. 11. Notice. All notices herein required shall be in writing and delivered in person or sent by certified mail, postage prepaid, addressed as follows: As to City: As to Organization: City of San Bernardino 300 North D Street San Bernardino CA 92418 Attn: City Manager Patrons of the Roosevelt Bowl 1833 Kenwood Avenue San Bernardino, CA 92404 Attn: President 12. Authorization to Execute. Organization hereby covenants that it has taken all actions necessary to make the adherence to the obligations imposed y this Agreement a binding obligation of the Organization 13. 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. 14. California. Governing Law. This Agreement shall be governed by the laws of the State of 15. 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. 16. 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. 17. 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. CITY OF SAN BERNARDINO PATRONS OF ROOSEVELT BOWL Page 4 .. I ... . 2012-37 18. 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 matter of this Agreement. This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date se~rrth below. Dated: j(1lMc~ 'I., ,2012 Dated: f- r _lA, 2012 CITY OF SAN BERNARDINO By: l()dNc.. de IA0Jn6 ~~ f1 Charles McNeely, City Manager r APPROVED AS TO FORM: James F. Penman, City Attorney By: L 1~ (l CITY OF SAN BERNARDINO PATRONS OF ROOSEVELT BOWL Page 5