HomeMy WebLinkAbout13- Parks and Recreation ORIGINAL
CITY OF SAN BERNARDINO— REQUEST FOR COUNCIL ACTION
From: Kevin Hawkins, Director Subject: Resolution authorizing the City
Manager to execute a Operating Services
Dept: Parks and Recreation Agreement between Major League
Softball, Inc. and the City of San
Date: December 7, 2009 Bernardino for the provision of adult
softball and adult baseball programs, and
allowing for the use of Encanto Park and
Fiscalini Field.
M/CC Date: January 19, 2009
Synopsis of Previous Council Action:
September 5, 2006 –Resolution No. 2006-327 authorized an Agreement between the City of San
Bernardino and Major League Softball, Inc. for adult baseball and adult softball services for a
three year period of September 1, 2006 through August 31, 2009.
August 18, 2003 –Resolution No. 2003-236 authorized an Agreement with Major League
Softball, Inc. for adult baseball and adult softball services from September 1, 2003 through
August 31, 2006-
Recommended Motion:
Adopt Resolution. - —
Kevin H ms
Contact person: Robert Lennox, Deputy Director Phone: 5233
Supporting data attached: Staff Report, Reso, Agreement Ward(s): 2 & 6
FUNDING REQUIREMENTS: Amount: Anticipated revenue to the City: $4,000
Source: (Acct. No.)
Acct. Description:
Finance:
Council Notes: S�
Agenda Item No. '?)
New Staff Repo l'+
I-W-2010
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 an Operating Services Agreement by and between Major League
Softball, Inc. (MLS) and the City of San Bernardino for the organization and management of
the Parks, Recreation and Community Services Department's Adult Softball and Adult Baseball
Programs; MLS is granted use of Encanto Park from January 1, 2010 through December 31,
2010, with two (2) optional one-year renewals; and use of Fiscalini Field from May 28, 2010
through October 31, 2010, with the option of one (1) one-year renewal.
Background:
The City of San Bernardino Parks, Recreation and Community Services Department is
proposing to extend an agreement with Major League Softball, Inc. (MLS). MLS is a
company that collaborates with municipal parks & recreation departments to increase the
efficiency and effectiveness of adult baseball and softball programs. MLS currently has
agreements with over 24 parks and recreation departments in southern California to administer
adult baseball and adult softball programs. MLS has provided this service to the City of San
Bernardino for six years. They have served 493 adult softball teams and 170 adult baseball
teams from the fall of 2003 through the summer of 2009.
MLS will provide supervision, program administration/registration, equipment, officiating
services, marketing of programs, scorekeeping services, statistical reports, awards, and field
maintenance/preparation. In late August of 2009, MLS was authorized to begin a winter season
at Fiscalini Field pending creation and execution of this agreement. Due to field conditions
and overuse by all user groups, all permitted use was suspended so thorough annual
maintenance could take place. With field conditions addressed by late December, the site was
reopened for use on January 1, 2010. All users and providers were considered and consulted
with when determining field allocation for the upcoming year with compromises made by all
parties. The attached "Fiscalini Field 2010 Calendar" establishes use and maintenance to
ensure all groups can complete play on permitted dates before and after the field is dark for
maintenance in November and December. The fields subject to this agreement include two
fields at Encanto Park (January 1, 2010 through December 31, 2010) and Fiscalini Field (May
28, 2010 through October 31, 2010).
Financial Impact:
MLS coordinates team registration, and shall retain 80% of the gross receipts from registration
and forfeit fees for adult softball teams; and 85% of the registration and forfeit fees for adult
baseball teams. MLS shall pay to City the remaining 20% (for adult softball fees) and 15%
(for adult baseball fees). Anticipated annual revenue to the City for the term of the initial
agreement is $4,000.00.
Recommendation:
Adopt Resolution.
rn
to
r O N
fn fn
p .n N ^ z
In.
rA x .r N r! En
fn h Y (� rn h
On fn
a. n!I a. I'o I m
w N w N fn w N
r Y x In
to O h Y
�y L � N m
i�M T
fn
V
a z j
C r/l N n! f/l N r/1 nl
N S °
y
n V rn O h R .r, nl a. V. m N .�,.
N n N N N (/] N rn y S
Ay O O G
x .n N 01 'U y -.
N w - 7 .e
x .n m h Y O h Y Ei
•^y r --i N N N R
r
N N £ y o
rn
•m L ~ 0 y M,
LL
� O L
V7 N N rn ^ h rn
. - N V fn ["r y0
o v
td N v. rV m Cy 7
!q N ire 'A nl nl V] nl
^ m C> h Y L p
N N fl N Oi nl M *- r
O O N
r
N N
I'D m
7 R £
Y N m ° hlNl�I N N N
p rr, h 7 -n O
(/] N fn V] nl to qj N
1 RESOLUTION NO. COPY
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH MAJOR LEAGUE SOFTBALL, INC. (MLS) AND THE
4 CITY OF SAN BERNARDINO FOR THE ORGANIZATION AND
MANAGEMENT OF THE PARKS, RECREATION AND COMMUNITY
5 SERVICES DEPARTMENT'S ADULT SOFTBALL AND ADULT BASEBALL
6 PROGRAMS; MLS IS GRANTED USE OF ENCANTO PARK FROM JANUARY
1. 2010 THROUGH DECEMBER 31, 2010, WITH TWO (2) OPTIONAL ONE-
7 YEAR RENEWALS; AND USE OF FISCALINI FIELD FROM MAY 28, 2010
THROUGH OCTOBER 31, 2010, WITH THE OPTION OF ONE (1) ONE-YEAR
8 RENEWAL.
9 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF
10 THE CITY OF SAN BERNARDINO AS FOLLOWS:
11 Section 1: That the City Manager is hereby authorized to execute on behalf of
12 said City the Operating Services Agreement with Major League Softball, Inc., a copy
13
of which is attached hereto, marked as Exhibit "A", and incorporated herein by
14
15 reference as fully as though set forth at length; and
16 Section 2: That the authorization to execute the above referenced Operating
17 Services Agreement is rescinded if the parties to the agreement fail to execute it within
18 thirty (30) days of the passage of this resolution; and
19 Section 3: That the implementation date of the Operating Services Agreement
20
21 with Major League Softball is January 1, 2010; therefore, any action taken between
22 January 1, 2010 and the date that this Resolution is adopted is hereby ratified,
23
24
25
26
ui
27
28
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH MAJOR LEAGUE SOFTBALL, INC. (MLS) AND THE
4 CITY OF SAN BERNARDINO FOR THE ORGANIZATION AND
MANAGEMENT OF THE PARKS, RECREATION AND COMMUNITY
5 SERVICES DEPARTMENT'S ADULT SOFTBALL AND ADULT BASEBALL
6 PROGRAMS; MLS IS GRANTED USE OF ENCANTO PARK FROM JANUARY
1, 2010 THROUGH DECEMBER 31, 2010, WITH TWO (2) OPTIONAL ONE-
7 YEAR RENEWALS; AND USE OF FISCALINI FIELD FROM MAY 28, 2010
THROUGH OCTOBER 31, 2010, WITH THE OPTION OF ONE (1) ONE-YEAR
8 RENEWAL.
9 1 HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
10
Mayor and Common Council of the City of San Bernardino at a meeting
11
12 thereof, held on the day of 2010, by the following vote, to wit:
13 Council Members: AYES NAYS ABSTAIN ABSENT
14 ESTRADA
15 BAXTER
16
BRINKER
17
18 SHORETT
19 KELLEY
20 JOHNSON
21 MCCAMMACK
22
23 Rachel Clark, City Clerk
24 The foregoing resolution is hereby approved this day of . 2010.
25
26 Patrick J. Morris, Mayor
27 City of San Bernardino
Approved as to form:
28 James F. Penman. City Attorney 11 ""�
Exhibit A
OPERATING SERVICES AGREEMENT
MAJOR LEAGUE SOFTBALL
This Operating Services "Agreement" made the day of 2010,
by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter
referred to as CITY, and MAJOR LEAGUE SOFTBALL, INC., a California corporation
hereinafter referred to as PROVIDER.
WITNESSETH•
In consideration of this their mutual covenants and conditions, CITY exclusively retains
PROVIDER to organize and manage the City of San Bernardino Parks, Recreation &
Community Services Department's Adult Softball and Adult Baseball Programs and to do the
things necessary to provide the services, and to make payment to CITY, in accordance the terms
contained herein.
I. DEFINITIONS
A. For the purpose of this Agreement, the following words and phrases are defined
and shall be construed as hereinafter set out:
I. CITY: The City of San Bernardino, acting by and through the Director of
the Parks, Recreation and Community Services Department.
2, PROVIDER: MAJOR LEAGUE SOFTBALL, INC.,with whom CITY
enters into this Agreement, and the person with whom the Parks,
Recreation & Community Services Department Director or their
representative deals regarding subject Agreement. All employees and
agents of the PROVIDER are subject to the terms of this Agreement.
3. STAFF: The Parks, Recreation & Community Services Department
Director, or his authorized representatives, acting as agents of CITY.
4. SCOPE OF SERVICES: The services and responsibilities of PROVIDER
hereunder are described herein as follows:
A. General (Sec. IV A)
B. Program Administration(Sec. IV B)
C. Services(Sec. IV C)
Officiating
Scorekeeping
Awards
Field Maintenance/Preparation
D. Softball and/or Baseball Field Improvements (Sec. V)
Page 1 of 12
Exhibit A
E. Financial Considerations(Sec. II)
5. LEAGUE DIRECTOR: The individual assigned by PROVIDER to
provide daily supervision.
6. SOFTBALL FIELDS: The terms "softball fields" and "fields" as used in
this Agreement shall mean only the in-play areas, inclusive of dugouts, of
the subject ball fields, and specifically shall not include any out-of-play
areas, bleachers, buildings or structures of any kind, sidewalks, streets,
driveways, parking areas, playground or school yard areas.
7. SCMAF: Southern California Municipal Athletic Federation
8. PMBF: Players' Medical Benefit Fund
9. GROSS RECEIPTS: Includes all team registration and forfeit fees
remaining after payments of SCMAF registration fees (Sec. IV B [7]) and
PMBF fees (Sec. IV B [81).
H. FINANCIAL CONSIDERATIONS:
A. PROVIDER shall collect on behalf of CITY all team registration fees for the adult
baseball and softball programs. As consideration for its services under this Agreement,
PROVIDER shall be entitled to retain 80% of the gross receipts from team registration and
forfeit fees for adult softball teams and PROVIDER shall be entitled to retain 85% of the gross
receipts from team registration and forfeit fees for adult baseball teams. PROVIDER shall pay to
CITY 20% of the gross receipts from adult softball team registration and forfeit fees and 15% of
the gross receipts from adult baseball team registration and forfeit fees.
B. Payments of the CITY's share of team registration and forfeit fees shall be made by
PROVIDER to CITY in accordance with the payment schedule provided in Section IV B (9)
below. PROVIDER shall administer the registration system including, but not limited to
registrations, collecting of fees, providing a receipt and keeping of an accounting procedure
acceptable to CITY.
III. TERM
The term of this Agreement for exclusive operation and management of the adult softball
program at Encanto Field and the adult baseball program at Fiscalini Field shall be for a period
of one(1) year, beginning on January 1, 2010 and expiring on December 31, 2010, with two (2)
optional one-year renewals, unless earlier terminated in accordance with other provisions of this
Agreement. Option year 1 shall be for one year commencing on January 1, 2011, and Option
year 2 shall be for one year commencing on January 1, 2012. Option periods shall be on the
same terms and conditions set forth hereunder unless otherwise agreed to by the parties in
writing.
�,, Page 2 of 12
Exhibit A
IV. OPERATING RESPONSIBILITIES:
A. GENERAL
L Employees: PROVIDER shall provide such employees or independent
contractors(collectively referred to as "employees") as may be required to render service, to the
satisfaction of STAFF. Such employees shall be satisfactory to STAFF as to their personal
conduct, honesty, courtesy, health, appearance and cooperation with CITY employees. In the
event an employee is not satisfactory, as herein defined, STAFF shall furnish a written directive
to PROVIDER to correct the cause of said dissatisfaction. If PROVIDER does not correct said
problem to the satisfaction of CITY within 30 days after said written directive is received,
STAFF shall furnish a subsequent written notice to PROVIDER requiring that said employee be
excluded from providing further services to CITY.
2. Operation. PROVIDER shall provide general supervision of fields
including the enforcement of safety practices and regulations during periods the fields are in use
in connection with the operation of the City of San Bernardino Adult Softball and Baseball
Programs (in accordance with published game schedules as submitted to and approved by CITY
in writing at least fifteen (15) days prior to the first game of the season).
3. Conduct. PROVIDER shall at all times perform its services in a quiet and
orderly manner to the satisfaction of STAFF.
4. Disorderly Persons: PROVIDER shall use its reasonable efforts to prohibit
intoxicated persons, profane or indecent language, or boisterous or loud conduct in or about the
softball and baseball fields and will call upon the aid of peace officers, if necessary, to assist in
maintaining peaceful conditions. PROVIDER is hereby granted the fight to exclude from using
the fields registered participants who do not abide by established rules of which they have been
previously placed on notice.
5. Permits and Licenses: PROVIDER shall be required to obtain at its sole
expense any and all permits or licenses that may be required in connection with PROVIDEWs
subject operation including, but not limited to, tax permits, business licenses and health permits.
6. Signs and Advertisements: No signs of any kind shall be displayed by
PROVIDER unless approved by CITY, who may require removal or refurbishment of any sign
previously approved. PROVIDER shall not permit vendors to display wares unless written
permission is secured from CITY and such permission shall be subject to revocation at any time.
CITY may charge and collect fees for the display of signs advertising products and/or services.
7. SponsorshiR Notwithstanding that PROVIDER is providing to CITY the
operating services contemplated in this Agreement, it is acknowledged that the City of San
Bernardino Adult Softball and Baseball Programs are sponsored by CITY, and that PROVIDER
is not a sponsor or co-sponsor of said Programs.
8. Independent Contractor: PROVIDER shall perform work tasks
provided by this Agreement, but for all intents and purposes PROVIDER shall be an independent
Page 3 of 12
Exhibit A
contractor and not an agent or employee of the CITY. PROVIDER shall secure, at its expense,
and be responsible for any and all payment of Income Tax, Social Security, State Disability
Insurance Compensation, Unemployment Compensation, and other payroll deductions for
PROVIDER and its officers, agents, and employees, and all business license, if any are required,
in connection with the services to be performed hereunder.
B. ADMINISTRATION
1. League Director: The LEAGUE DIRECTOR shall oversee the program on
a day-to-day basis. The League Director shall be an experienced umpire/scorekeeper who will
work to serve the needs of both CITY and program participants.
2. League Coordination: The dates designated for and the duration of each
league, registration procedures and the number of games offered will be determined by and
within the sole discretion of CITY. PROVIDER shall schedule adult softball league play at
Encanto Park and adult baseball league play at Fiscalini Field according to facility schedules as
determined by and within the sole discretion of CITY.
3. Marketing: PROVIDER shall at all times use its best efforts to provide for
the best possible program promotion, consistent with the marketing services generally offered by
persons engaged in providing services similar to those required of PROVIDER under this
Agreement. Services shall include, but may not be limited to, press releases, program flyers,
copy for the City Brochure, letters and forms, mailing lists, a phone "hot line", and
internet/website registration and promotion. All such marketing materials and forms shall be
submitted to CITY by deadlines established by the parties in writing. CITY'S written approval
shall be obtained before such materials are distributed.
4. Pre-Season Services: PROVIDER shall arrange with STAFF mutually
agreeable dates, times, and a San Bernardino location for team registration. PROVIDER shall
collect and deposit league fees as set forth in Sec. IV B (9), below PROVIDER shall be
responsible for team classification and league formation towards the end of establishingthe most
balanced and equitable competition possible. PROVIDER shall be responsible for preparing,
printing and distributing of game schedules. Copies of game schedules shall be provided to
CITY prior to the start of each season. Changes to game schedules will be provided to CITY by
fax prior to the date of implementation, but no later than three (3) calendar days after necessity
for change has been determined. In addition, PROVIDER shall post timely schedule changes on
their website.
5. Sign In Sheets: PROVIDER shall provide sign-in sheets with hold
harmless/release/assumption of risk provisions ("Release"), approved in advance by CITY in
writing and ensure that each player signs the Release. PROVIDER shall not permit any person
to play any games unless that person has signed the Release.
`.� - Page 4 of 12
Exhibit A
6. Managers' Meeting: PROVIDER shall organize and supervise each pre-
season managers' meeting. This meeting will include distribution of league rules. CITY
facilities will be made available for this purpose.
7. Southern California Municipal Athletic Federation (SCMAR
PROVIDER shall complete all SCMAF team registration paperwork for those teams that choose
to pay the prevailing registration fee, as required by SCMAF, and pay such registration fees to
SCMAF within thirty(30) days of the first scheduled day of the season.
8. Player's Medical Benefit Fund: PROVIDER shall collect and deposit the
optional PMBF fee for each team that pays it. .
9. Method of Payment: PROVIDER shall pay to CITY the amounts required
in Sec. II A, herein, in accordance with the following schedule:
Winter League - on or before April 15
Spring League - on or before July 15
Summer League - on or before October 15
Fall League - on or before January 15
PROVIDER shall transmit with payment, a Gross Receipts Report for the season for which
payment is submitted. STAFF shall provide a form for this purpose, and the completed form
shall include a statement of the gross receipts by source of sales, and such other information as
STAFF may require. The payment/check shall be made payable to "City of San Bernardino".
The payment shall be addressed to:
City of San Bernardino
Parks, Recreation& Community Services Dept.
1350 South E Street
San Bernardino, California 92408
In the event PROVIDER fails to submit payment by the date due, interest at the maximum
amount allowed by law will be charged for each month, or fraction thereof, that the payment is
due. This charge is intended to compensate CITY for additional accounting and administrative
costs.
C. SERVICES
1. Officiating Services: PROVIDER shall recruit, train, supervise and evaluate softball
and baseball umpires. PROVIDER shall schedule and assign the approved number of
SCMAF and C.I.F. certified umpires to all games.
2. Scorekeeping Services: PROVIDER shall recruit, Vain, supervise and evaluate all
scorekeepers. PROVIDER shall schedule and assign league scorekeepers to all
Q games. PROVIDER shall provide computerized scoring of all league softball and
Page 5 of 12
Exhibit A
baseball games and generate and provide to teams reports at the conclusion of each
game. CITY shall provide one(1) 110-volt electrical outlet at each field.
3. Equipment: PROVIDER shall provide all essential game equipment, including, but
not necessarily limited to: one (1) new and one (1) good used SCMAF approved
softball or baseball for each game, certified home plate extensions on each field, and
Hollywood Impact or similar CITY approved quality bases for each field.
4. Field Maintenance: PROVIDER shall perform maintenance services in accordance
with PROVIDER'S written proposal titled "Major League Softball Ballfield
Maintenance Services," a copy of which is attached hereto and incorporated herein as
Attachment I. Each term and condition set forth in Attachment I shall apply and is
incorporated in this Agreement by reference. PROVIDER shall perform basic upkeep
(e.g., watering, dragging, chalking and field prep) leaving the fields in the condition
in which they are received. CITY shall mow and edge the turf on a weekly basis, and
shall apply fertilizer and seed as necessary.
5. Awards: PROVIDER shall provide individual awards for first and second place
teams. Awards shall consist of shirts, sweatshirts or similar items as approved by
CITY. Awards shall also be provided for statistical leaders in up to three (3)
categories in each league at the end of each season.
V. SOFTBALL AND/OR BASEBALL FIELD IMPROVEMENTS:
... PROVIDER may make additional softball and/or baseball field improvements subject to
prior written approval of CITY. In addition, CITY may, from time to time, make certain
improvements, which it deems to be advantageous or necessary for the protection of public
property.
VI. LIABILITY AND INSURANCE:
A. Hold Harmless:
1 . CITY and its respective elected and appointed boards, officials, officers,
agents, employees and volunteers (individually and collectively, "CITY") shall have no liability
to PROVIDER or any other person for, and PROVIDER shall indemnify, defend, protect and
hold harmless CITY from and against, any and all liabilities, claims, actions, causes of action,
proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature,
including reasonable attorney's fees and disbursements(collectively "Claims"), which CITY may
suffer or incur or to which CITY may become subject by reason of or arising out of any injury to
or death of any person(s), damage to property, loss of use of property, economic loss or
otherwise to the extent occurring as a result of or allegedly caused by the negligent, willful or
unlawful acts or omissions of PROVIDER, its agents, officers, directors or employees,
committed in performing any of PROVIDER'S services under this Agreement.
2 . If any action or proceeding is brought against CITY by reason of any of
Page 6 of 12
Exhibit A
the matters against which PROVIDER has agreed to indemnify CITY as provided above,
PROVIDER, upon notice from CITY, shall defend CITY at PROVIDER'S expense by counsel
acceptable to CITY, such acceptance not to be unreasonably withheld. CITY need not have first
paid for any of the matters to which CITY is entitled to indemnification in order to be so
indemnified. The provisions of this section shall survive the expiration or earlier termination of
the Agreement.
3 . The provisions of this section do not apply to Claims to the extent
occurring as a result of the CITY's sole negligence or willful acts or omissions committed by the
CITY in performing any of the CITY's obligations under this Agreement.
B. Insurance:
While not restricting or limiting the foregoing, during the term of this Agreement,
PROVIDER 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 the CITY.
C. Worker's Compensation:
PROVIDER shall at all times during the term of the Agreement subscribe to and
comply with the Worker's Compensation Laws of the State of California and pay such premiums
as may be required thereunder, and hold CITY harmless from any and all liability arising from or
under such act. Prior to any operations being performed under this Agreement, and at such other
times as may be requested, it shall furnish to the CITY's Risk Manager a copy of the official
certificate of receipt, showing payments are current.
D. Safety:
With respect to the services being furnished by PROVIDER under this Agreement,
PROVIDER shall correct safety deficiencies and violations of safety practices immediately and
shall cooperate fully with CITY in the investigation of accidents occurring on the softball fields.
In the event of injury to a patron or customer, PROVIDER shall ensure that the injured person
receives prompt and qualified medical attention, and as soon as possible thereafter, it shall
submit a "City Accident Report" form.
VII. DEFAULT AND CANCELLATION:
In the event PROVIDER defaults in the performance of any of the terms or conditions of
the Agreement, or fails to conform to the rules and regulations or any of the directions or
Page 7 of 12
Exhibit A
instructions that may be properly made by CITY in the exercise of its powers, or fails, neglects,
or refuses to pay the CITY'S monies or any part thereof within thirty (30) days after the same
shall become due, or becomes unable through personal incapacity to fulfill its obligations under
the Agreement or defaults in the performance of any of the other terms or provisions therein
required, CITY shall have the following options without further notice or authorization from
PROVIDER, and its choice of any option shall in no way waive its rights to select any other
option at any time:
A. If the PROVIDER does not cure said default within thirty (30) days after written
notice of default (forthwith for a default involving sanitary or safety conditions) or make
reasonable progress to cure said default, CITY may terminate the Agreement, assume the
operation, and exclude PROVIDER and/or
B. CITY may recover at law any and all claims which may be due CITY; and/or
C. CITY may perform such work as it deems necessary to cure said default and charge
PROVIDER for the full cost of labor and materials expended, plus thirty percent (30%) of said
cost for administrative overhead_ STAFF may exercise this option immediately in the event of a
default involving cleanliness or safety provisions of the Agreement. STAFF may exercise this
option within ten (10) days after giving PROVIDER written notice of default involving
maintenance provisions of this Agreement.
D. In the event of abandonment or other inability of PROVIDER to conduct the services
required herein, CITY shall have the right to take immediate possession of all operations.
The acceptance of all or part of a payment by CITY for any period after a default shall
not be deemed a waiver of any of these options, nor a waiver of the default or any subsequent
default of the same or any other term, covenant or condition. Any waiver by CITY of a default
on the part of the PROVIDER shall not be construed as, or constitute a waiver of, any
subsequent default of the same or any other term, covenant or condition.
In the event CITY defaults in the performance of any of the terms or conditions of the
Agreement, and if a written notice of such default is issued to CITY by PROVIDER by
registered mail, and if CITY does not cure said default within thirty (30) days of receipt of said
notice as evidenced by return receipt of registered mail, then PROVIDER may immediately
terminate the Agreement and recover at law any and all claims which may be due. However, if
PROVIDER fails to notify CITY of its default within sixty (60) days after learning of its
occurrence, then it has automatically waived any and all of its rights occurring hereunder.
VIII. ASSIGNMENT, BANKRUPTCY:
PROVIDER shall not transfer, assign or in any manner convey any of the rights or
privileges herein granted without the prior written consent of CITY. Neither the Agreement nor
the rights therein granted are assignable or transferable by any process or proceedings in any
court, or by attachment, execution, proceedings in insolvency or bankruptcy, either voluntary or
involuntary, or receivership proceedings. In the event of insolvency or bankruptcy, either
Page 8 of 12
Exhibit A
voluntary or involuntary, CITY, in the exercise of its sole discretion, may terminate and cancel
this Agreement, in which event all rights of PROVIDER herein, or any successor thereto, shall
cease immediately and possession of the softball and/or baseball fields shall be delivered to
CITY.
IX. BUSINESS RECORDS:
A. PROVIDER shall be required to maintain a method of accounting of all receipts in
connection with the performance of its services hereunder, which shall correctly and accurately
reflect the gross receipts received by PROVIDER relating to this Agreement, as well as SCMAF
and PMBF fees paid. The accounting, including bank accounts established for operations under
this Agreement, shall be separate from the accounting for any other operation of PROVIDER.
All receipts and distributions occurring under this Agreement shall be accounted for and
identified as such. In addition, the accounting shall include the keeping of the following
documents:
1. Any and all accounting records that CITY in its sole discretion deems
necessary for proper reporting of receipts.
2. A log showing the number of teams registered in each league. This log is
to be considered an accounting record.
B. All such documents, books and accounting records shall be open for inspection
and reinspection during regular business hours, and upon 24-hour's notice from the CITY,
during the term of this Agreement and for a reasonable period, not to exceed seven years,
thereafter. In addition, CITY may, from time to time, conduct an audit and re-audit of the books
and business conducted by PROVIDER, and observe the operation of the business so that
accuracy of the above records can be confirmed.
I. If the report of gross receipts made by PROVIDER to CITY shall be
found to be less than the amount of gross receipts disclosed by such audit
and observation, PROVIDER shall pay CITY within thirty (30) days after
billing any additional amounts disclosed by such audit. If discrepancy
exceeds two (2%) and no reasonable explanation is given for such
discrepancy, PROVIDER shall also pay the cost of the audit.
2. The PROVIDER understands that an annual audit by the CITY may be
conducted and PROVIDER agrees to cooperate fully with the CITY
during each audit. All information obtained in connection with CITY'S
inspections of records or audits shall be received and maintained in
confidence and shall not be disclosed to anyone not directly connected
with the official business of CITY, to the extent permitted by law.
X. REGULATIONS, INSPECTION AND DIRECTIVES:
® A. CITY Rules: PROVIDER and its employees shall at all times abide by all Rules and
Page 9 of 12
Exhibit A
Regulations heretofore adopted or that may hereafter be adopted by CITY, and of which
PROVIDER has notice, and shall cooperate fully with CITY employees in the performance of
their duties.
B. Laws and Ordinances: PROVIDER shall conduct its business in accordance with all
the laws, ordinances, rules and regulations applicable to such business as set forth by the City,
County, State and Federal government.
C. Permissions: Any permission required by the Agreement shall be secured in writing
by PROVIDER from CITY and any errors or omissions therefrom shall not relieve PROVIDER
of its obligations to faithfully perform the conditions therein. PROVIDER shall immediately
comply with any written request or order submitted to it by CITY or STAFF.
D. Right of Inspection: CITY and STAFF, their authorized representatives, agents and
employees shall have the right to enter upon the subject softball and baseball fields at any and all
reasonable times for the purpose of inspection and observation of PROVIDER'S operations.
During these inspections, they shall have the right to utilize photographic devices and other
instruments for recording conditions and events taking place upon the subject ball fields. Said
inspections may be made by persons identified to PROVIDER as CITY employees, or may be
made by independent contractors engaged by CITY.
E. Standard of Performance: PROVIDER represents and warrants that it has the
qualifications and experience necessary to properly perform the services required under this
Agreement in a thorough, competent and professional manner. PROVIDER shall at all times
faithfully, competently and to the best of its ability, experience and talent perform all services
described herein. In meeting its obligations under this Agreement, PROVIDER shall employ, at a
minimum generally accepted standards and practices utilized by persons engaged in providing
services similar to those required of PROVIDER under this Agreement.
:. Nondiscrimination: PROVIDER shall not discriminate, in any way, against any
person on the basis of race, religious creed, 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.
_ -verabiiity: In case any one or more of the provisions contained in this Agreement
shall f yr an,' mason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
.. _Billy yr w zIb,eabiiny shall not aitwr any other provision hercot; and the remainder of the
provisions of this Agreement shall continue in fuII force without impairment.
H- Governing Law: This .agreement shall he governed by the laws of the State of
California.
I. Venue: All actions or proceedings arising in connection with this Ageement shall be
tried and litigated in the San Bernardino County Superior Court or the tinted States tns*rie*
Court for the Central District of California, Eastern Division. Thi. e.hoii,e of venue is intender{
Page 10 of 12
Exhibit A
by the parties to be mandatory, not permissive.
J. 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 to be a waiver of such breach or a
waiver of future breaches, unless such waiver be in writing and signed by the party against
whom enforcement is sought.
K. Integration: This Agreement constitutes the entire Agreement of the parties
concerning the subject matter hereof and all prior agreements or understandings, oral or written,
are hereby merged herein. This Agreement shall not be amended in any way except by a writing
expressly purporting to be such an amendment, signed and acknowledged by both parties hereto.
L. Notices: Except as otherwise specifically set forth herein, any notices, documents,
correspondence or other communications concerning this Agreement or the work hereunder may
be provided by personal delivery, facsimile, e-mail or first class mail and shall be addressed as
set forth below. Such communication shall be deemed served or delivered: (a) at the time of
delivery if by personal delivery; (b)at the time of transmission if by facsimile or e-mail; and (c)
72 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark, if by first class
mail.
IF TO PROVIDER: IF TO CITY:
San Bernardino Parks, Recreation and
Community Services Department
1350 South E Street
San Bernardino, CA 92408
Telephone:
Fax:
E-mail:
XL AGREEMENT IN DUPLICATE:
This Agreement is executed in duplicate, each copy of which shall be deemed as an
original.
Signatures appear after Paragraph XI on next page
Page 11 of 12
i
i
VENDOR SERVICES AGREEMENT
MAJOR LEAGUE SOFTBALL, INC. and CITY OF SAN BERNARDINO
IN WITNESS WHEREOF, CITY and PROVIDER have executed the same, the day and
year hereinabove written.
MAJOR LEAGUE SOFTBALL, INC. CITY OF SAN BERNARDINO
By: By:
Charles McNeely
Title: Title: City Manager
Dated: Dated:
Approved as to Form:
James F. Penman, City Attorney
By:
Page 12 of 12
MAJOR LEAGUE SOFTBALL
IV BALL FIELD Periodic Field Repair Services
MAINTENANCE SERVICES
To the extent that adult softball or baseball play impacts
Before, during and after each softball season MLS the fields allocated for league use, the following repair
will provide the following services: services will be performed on each field programmed tot
adult softballlbaseball:
The MLS Standard Ball Diamond
11 Surrey the traction(infield)area each season to
Maintenance System (SBDMS) evaluatc the existing gradc and decide which
equipment and grading method should he
The MLS Field Maintenance Division is managed employedtobrin gtheinfield(Ototheproper
MLS's Director of Maintenance Operations (hereafter grade.See Paragraph*below rorspccific
detaitx regarding grading equipment and methods.
"DFM") and his staff. The DFM has integrated his
own innovative techniques along with proven 2) Afterstuveying the tractionamiof each infield,
maintenance procedures to create a comprehensive obtain and provide whatever amount of traction
maintenance system that renders ball field conditions material (-Angel Mix'.decomposed granite.
that have proven both safe and enjoyable for program etc.) is necessary to build up the infieid(s)that
have suffered sm,niftcam material displacement--
participants. if additional traction material is needed to create
a level grade.It must be clearly understood that
The most remarkable benefit of the MLS Standard the SBDMS traction material replacement
(� Ball Diamond Maintenance System (SBDMS) is that feature is limited to replacing only those quantities
Ff� it affords program administrators the opportunity to of material that have been loll or displaced ducto
resume league play immediately after inclement adult softball baseball use.The SBDMS will not
weather. The SBDMS eliminates the need to wait include replacement of traction materialwhen
multiple days for ball fields to dry after a heavy rain: such material loss or displacement is caused by
this feature has significantly reduced the number of weather and/or adhldic uses such as college
rained-out games and the resulting rescheduling baseball,vouch softball,soccer.school
programming orany field uscw otherthan adult
burden. MLS warrants that the SBDMS will enable it softball or baseball.
to schedule and complete four (4) softball seasons per
year, regardless of the amount of rainfall. 31 On two(2)occasions per year.grade the traction area
of each infield using a skip loader and"Gannon-
By their very nature. every softball field has a unique grading box.Traction material will be added where
set of conditions that requires special attention. necessary during the grading process.Traction material
Therefore, the Major League Softball SBDMS purchasc'n s will be prorated such[hat MLS will pay for
consists of two friction matenal only tothethecxtcn iof the SBDMS
..d i a l i n c t material replacement feature defined in Paragraph 2
c I e in e n t s above and the tLy Hall pay forth¢portion of each
«'^ Periodic Repair traction matenal purchase that is needed due to
-- -
— Services and the non-adult sunball:baseball uses and/or weather.To
D a i I y ensure optimal drainage.safely and playability on
Maintenance each infield allocated for adult softball league
Y play.MLS strongly recommends that each infield is
-
Program. play.
leveled on one(1)occasion per year.MLS'
will invoice the City the sum ol'S500 tl0per
infield after rendering laser leveling services.
i
MAJOR LEAGUE SOFTBALL
4) On a seasonal basis. sunny the outfield(sodded) perimeter edge such that it will remain free of
area to determine which areas are wom or infield mix buildup.it must be clearly understood
damaged due to adult sofibalI use. It must be that this infield perimeter border edge repair
clearly understood that this SBDMS sod feature is limited to repair of damage caused by
rgtlacemetn feature is limited to damage or wear adult softball or baseball use only.The SBDMS
that is specifically tossed by adult softball use will not provide repair of perimeter border edges
only.Worn or damaged areas of a softball or when such repairs are caused by weather and/or
baseball outfield that have been cousecd by other athletic uses such as college baseball.youth
activities or athletic uses such a,soccer. rugby. soitbball or baseball.soccer,school programming
football or school programming such as college or any field uses otherthan adult softball or
baseball will not he considered part of the outfield baseball.
area that will be repaired by the SBDMS.
MLS will evaluate the existing conditions on each
5) When necessary.obtain and provide whatever type field allocated for adult.program use prior to
berm that is currently ry. cte.)outfield will Supply commencement of a contract. If the existing
bcrmuda,perennial rye. ctcJ MLS will supply
enough sod to completely fill those areas which conditions on each softball field do not meet industry
arc heavily impacted by adult sollball or baseball standards then MLS will prepare a written estimate of
league play.MLS will use proper sod cutting proposed renovation services with MLS's customary
equipment to remove damaged.wom or diseased charges for such services. In such situations, the City
sod and replacer with healthy 3'by I' lengths. agrees to either accept MLS's proposal and pay MLS
During the planting process. MLS will add all
necessary amendments(recipe to be mutually to renovate said softball fields or the City will bear
40*., agreed upon between the appropriate City staff the responsibility for bringing said fields up to
mcmberto and the DFM)to ensure proper industry standards for safety and playability
mending and growth.
Periodic Repair Services are provided to ensure that
base anchor.and to the pitcher's plate I
6) Measure thedistancesfrom home platebetween rubber)to all playing surfaces are kept available for use. It is
ensure that they fall within the specifications set mutually understood that the City has its own,
forth in the SCMAF and Major League Baseball seperate parks maintenance staff and/or parks
Wile books.At this time,all base anchors. home maintenance program. The SBDMS is not a parks
plates and pitchers'plate,will be thoroughh maintenance program and is not designed to alleviate
checked for excessive wear or defects:and a the City's park maintenance responsibilities.
written status report may be submitted to the
appropriate city staff membens).
7) Using a light meter.MLS will test the candle font Infield Treatment Program
power(lux)for each infield and outfield.In the
event that an existing candle foot reading dots not After necessary Periodic Repair Services have been
comply with the State of California's minimum completed, each ball field will be ready for the
standard for ball field use.a written diagram opening day of the season. Beginning on opening day,
illustrating the location and quantity of each MLS's Field Maintenance staff will perform an
reading will be provided to the appropriate city Infield Treatment on each field scheduled for league
staff membms).
Pla)'•
8) When necessary.theperimeter border edge rthc
line where infield traction material meets outfield The Infield Treatment Program takes into account
turn win receive special attention to eliminate an) that specific locations (referred to as "high-impact
berm or ridge that develops from frequent use. areas') on each diamond endure heavv use and thus
MLS will doliatch.scalp and waterblast the require special attention. High-impact areas such as
2
MAJOR LEAGUE SOFTBALL
batter's boxes, catcher's and umpire's places behind While the SBDM S is quite comprehensive. it does
home plate, the pitcher's mound, the base paths, and not include the following landscape and parks
the sliding areas around the base anchors will receive maintenance tasks: seeding, aeration, fertilization,
additional watering and scarifying on a daily basis: mowing, watering of outfield areas, irrigation system
and traction material will be added when needed. A repair, or infield mix replacement that becomes
Daily Infield Treatment consists of the following necessary due to weather or uses other than adult
steps that arc performed on each day a field is softball. However, the MLS Field Maintenance
scheduled for Icague play: Division is capable of providing maintenance services
well beyond the scope of the Standard Ball Diamond
I l Lade quantities of displaced material from Maintenance System. if such maintenance services
high-impact areas will be back-filled using the are desired, it separate contract concerning these
front scoop of a John Deere 12W ball field maintenance services may be negotiated.
conditioner.
2) 'r he entire traction area will be watered, with City Responsibilities
additional quantities tipplicd to high-impact The City agrees to maintain in safe condition all park
areas. fixtures such as: poles, light fixtures, light bulbs,
3) As needed,the entire traction area will he scarified bleachemiscating apparatus, playground equipment..
usinga viarctyof ltcptlisettings.dcpcndin,,Oathc chainlink fencing (including but not limited to
existing condition of the field.MIS staff uses "dugout", "backstop", "out of play" and
scarifier,that come as standard attachments on "outfield/home run" fences), base anchors, home
John Decre I21N1 ball field conditioners.'rhe it) plates and pitcher's rubbers.
120()scarifier is 54 inches wide and can be sci to
depths mliging From one to six inches.Extra care
will he exercised when scarifying nest to
perimeter edges,base anchors. home plates,
pitcher's plates,backstops and chain link fencing.
1
41 'rhe JD 1200 grading'leveling attachment and a
-screen"drag will then be employed to evenly
distribute traction material over the entire traction
area surface of the infield leaving a smooth
surface.
51 Finally.the field shall be lineal as prescribed by the
SC'MAF or Major Lrageuc Baseball vale
books.thing a batter's box template and string.
' MLS staff will set down thcbatter's boxes.foul
lines, coaches'boxes.first base panning lane,and
on-deck circles.Appropriate city staff membens)
will be consulted.so that MLS will use only field
marking materials that have been approved by the
City's designated representative.
3
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
From: Kevin Hawkins, Director Subject: Resolution authorizing the City
Manager to execute a Operating Services
Dept: Parks and Recreation Agreement between Major League
Softball, Inc. and the City of San
Date: December 7, 2009 Bernardino for the provision of adult
softball and adult baseball programs, and
allowing for the use of Encanto Field and
Fiscalini Field.
M/CC Date: January 4, 2009
Synopsis of Previous Council Action:
September 5, 2006 —Resolution No. 2006-327 authorized an Agreement between the City of San
Bernardino and Major League Softball, Inc. for adult baseball and adult softball services for a
three year period of September 1, 2006 through August 31, 2009.
August 18, 200') —Resolution No. 2003-236 authorized an Agreement with Major League
Softball, Inc. for adult baseball and adult softball services from September 1, 2003 through
August 31, 2006.
Recommended Motion:
1
Adopt Resolution.
Kevin Hawkirg
Contact person: Robert Lennox, Deputy Director Phone: 5233
Supporting data attached: Staff Report, Reso, Agreement Ward(s): 2 & 6
FUNDING REQUIREbIENTS: Amount: Anticipated revenue to the City: $4,000
Source: (Acct. No.)
Acct. Description:
Finance:
Council Notes: r�0 9 it/T
407
Agenda Item No.
STAFF REPORT
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the
City Manager to execute an Operating Services Agreement by and between Major League
Softball, Inc. (MLS) and the City of San Bernardino for the organization and management of
the Parks, Recreation and Community Services Department's Adult Softball and Adult Baseball
Programs; MLS is granted use of Encanto Field from January 1, 2010 through December 31,
2010, with two (2) optional one-year renewals; and use of Fiscalini Field from May 28, 2010
through October 31, 2010, with the option of one (1) one-year renewal.
Background:
The City of San Bernardino Parks, Recreation and Community Services Department is
proposing to extend an agreement with Major League Softball, Inc. (MLS). MLS is a
company that collaborates with municipal parks & recreation departments to increase the
efficiency and effectiveness of adult baseball and softball programs. MLS currently has
agreements with over 24 parks and recreation departments in southern California to administer
adult baseball and adult softball programs.
�... MLS has provided this service to the City of San Bernardino for six years. They have served
493 adult softball teams and 170 adult baseball teams from the fall of 2003 through the summer
of 2009.
MLS will provide supervision, program administration/registration, equipment, officiating
services, marketing of programs, storekeeping services, statistical reports, awards, and field
maintenance/preparation.
The fields subject to this agreement include Encanto Park(January 1, 2010 through December
31, 2010) and Fiscalini Field (May 28, 2010 through October 31, 2010).
Financial Impact:
MLS coordinates team registration, and shall retain 80% of the gross receipts from registration
and forfeit fees for adult softball teams; and 85% of the registration and forfeit fees for adult
baseball teams. MLS shall pay to City the remaining 20% (for adult softball fees) and 15%
(for adult baseball fees). Anticipated annual revenue to the City for the term of the initial
agreement is $4,000.00.
Recommendation:
Adopt Resolution.
01/04/2010, Item No. 17
Item History
Backup distributed on 12/21/09, Item No. 17
CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION
From: Kevin Hawkins, Director Subject: Resolution authorizing the City
Manager to execute a Operating Services
Dept: Parks and Recreation Agreement between Major League
Softball, Inc. and the City of San
Date: December 7, 2009 Bernardino for the provision of adult
sof all and adult baseball programs, and
al wing for the use of Encanto Field and
iscalini Field.
VCC Date: January 4, 2009
Synopsis of Previous Council Ac/-236
September 5, 2006—Resolution N authorized an Agreement between the City of San
Bernardino and Major League Soft adult baseball and adult softball services for a
three year period of September 1, August 31, 2009.
August 18, 2003 —Resolution No. thorized an Agreement with Major League
Softball, Inc. for adult baseball anall services from September 1, 2003 through
August 31, 2006.
Recommended Motion:
Adopt Resolution.
Kevin Hawki
Contact person: Rob Lennox, Deputy Director Phone: 5233
Supporting data a ched: Staff Report, Reso, Agreement Ward(s): 2 & 6
FUNDING REQ IREMENTS: Amount: Anticipated revenue to the City: $4,000
Source: (Acct. No.)
Acct. Description:
Finance:
Council otes:
Agenda Item No. _
New Si-44 (Zeror4
I -xl - to
STAFF REPORT
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the
City Manager to execute an Operating Services Agreement by and between Major League
Softball, Inc. (MLS) and the City of San Bernardino for the organization and management of
the Parks, Recreation and Community Services Department's Adult Softball and Adult Baseball
Programs; MLS is granted use of Encanto Field from January 1, 2010 through December 31,
2010, with two (2) optional one-year renewals; and use of Fiscalini Field from May 28, 2010
through October 31, 2010, with the option of one (1) one-year renewal.
Background:
The City of San Bernardino Parks, Recreation and Community Services Department is
proposing to extend an agreement with Major League Softball, Inc. (MLS). MLS is a
company that collaborates with municipal parks & recreation departments to increase the
efficiency and effectiveness of adult baseball and softball programs. MLS currently has
agreements with over 24 parks and recreation departments in southern California to administer
adult baseball and adult softball programs.
MLS has provided this service to the City of San Bernardino for six years. They have served
493 adult softball teams and 170 adult baseball teams from the fall of 2003 through the summer
of 2009.
MLS will provide supervision, program administration/registration, equipment, officiating
services, marketing of programs, scorekeeping services, statistical reports, awards, and field
maintenance/preparation.
The fields subject to this agreement include Encanto Park (January 1, 2010 through December
31, 2010) and Fiscalini Field (May 28, 2010 through October 31, 2010).
Financial Impact:
MLS coordinates team registration, and shall retain 80% of the gross receipts from registration
and forfeit fees for adult softball teams; and 85% of the registration and forfeit fees for adult
baseball teams. MLS shall pay to City the remaining 20% (for adult softball fees) and 15%
(for adult baseball fees). Anticipated annual revenue to the City for the term of the initial
agreement is $4,000.00.
Recommendation:
Adopt Resolution.
I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH MAJOR LEAGUE SOFTBALL, INC. (MLS) AND THE
4 CITY OF SAN BERNARDINO FOR THE ORGANIZATION AND
MANAGEMENT OF THE PARKS, RECREATION AND COMMUNITY
5 SERVICES DEPARTMENT'S ADULT SOFTBALL AND ADULT BASEBALL
PROGRAMS; MLS IS GRANTED USE OF ENCANTO FIELD FROM JANUARY
6 1, 2010 THROUGH DECEMBER 31, 2010, WITH TWO (2) OPTIONAL ONE-
7 YEAR RENEWALS; AND USE OF FISCALINI FIELD FROM MAY 28, 2010
THROUGH OCTOBER 31, 2010, WITH THE OPTION OF ONE (1) ONE-YEAR
8 RENEWAL.
9 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF
10 THE CITY OF SAN BERNARDINO AS FOLLOWS:
11 Section 1: That the City Manager is hereby authorized to execute on behalf of
12 said City the Operating Services Agreement with Major League Softball, Inc., a copy
13 of which is attached hereto, marked as Exhibit "A°, and incorporated herein by
14
reference as fully as though set forth at length; and
15
16 Section 2: That the authorization to execute the above referenced Operating
17 Services Agreement is rescinded if the parties to the agreement fail to execute it within
18 thirty (30) days of the passage of this resolution.
19
20
21 /u I N--1
23
24
25
26
27
28
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
AGREEMENT WITH MAJOR LEAGUE SOFTBALL, INC. (MLS) AND THE
4 CITY OF SAN BERNARDINO FOR THE ORGANIZATION AND
MANAGEMENT OF THE PARKS, RECREATION AND COMMUNITY
5 SERVICES DEPARTMENT'S ADULT SOFTBALL AND ADULT BASEBALL
PROGRAMS; MLS IS GRANTED USE OF ENCANTO FIELD FROM JANUARY
6 1, 2010 THROUGH DECEMBER 31, 2010, WITH TWO (2) OPTIONAL ONE-
7 YEAR RENEWALS; AND USE OF FISCALINI FIELD FROM MAY 28, 2010
THROUGH OCTOBER 31, 2010, WITH THE OPTION OF ONE (1) ONE-YEAR
8 RENEWAL.
9 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
10
Mayor and Common Council of the City of San Bernardino at a meeting
11
12 thereof, held on the _ day of 2010, by the following vote, to wit:
13 Council Members: AYES NAYS ABSTAIN ABSENT
14 ESTRADA
15 BAXTER
16 BRINKER
17
18 SHORETT
19 KELLEY
20 JOHNSON
21 MCCAMMACK
22
23 Rachel Clark, City Clerk
24 The foregoing resolution is hereby approved this day of 2010.
25
26 Patrick J. Morris, Mayor
27 form: of San Bernardino
Approved as to form:
28 James F. Penman. City Attorney By:
OPERATING SERVICES AGREEMENT
MAJOR LEAGUE SOFTBALL
This Operating Services "Agreement" made the day of , 2010,
by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter
referred to as CITY, and MAJOR LEAGUE SOFTBALL, INC., a California corporation
hereinafter referred to as PROVIDER.
WITNESSETH:
In consideration of this their mutual covenants and conditions, CITY exclusively retains
PROVIDER to organize and manage the City of San Bernardino Parks, Recreation &
Community Services Department's Adult Softball and Adult Baseball Programs and to do the
things necessary to provide the services, and to make payment to CITY, in accordance the terms
contained herein.
I. DEFINITIONS
A. For the purpose of this Agreement, the following words and phrases are defined
and shall be construed as hereinafter set out:
1. CITY: The City of San Bernardino, acting by and through the Director of
the Parks, Recreation and Community Services Department.
2. PROVIDER: MAJOR LEAGUE SOFTBALL, INC.,with whom CITY
enters into this Agreement, and the person with whom the Parks,
Recreation & Community Services Department Director or their
representative deals regarding subject Agreement. All employees and
agents of the PROVIDER are subject to the terms of this Agreement.
3. STAFF: The Parks, Recreation & Community Services Department
Director, or his authorized representatives, acting as agents of CITY.
4. SCOPE OF SERVICES: The services to be provided by PROVIDER, and
the responsibilities of PROVIDER, which are limited to the following
functions:
A. Program Administration/Registration
B. Officiating Services
C. Scorekeeping Services
D. Awards
E. Field Maintenance/Preparation
Page 1 of It
5. LEAGUE DIRECTOR: The individual assigned by PROVIDER to
provide daily supervision.
6. SOFTBALL FIELDS: The terms "softball fields" and "fields" as used in
this Agreement shall mean only the in-play areas, inclusive of dugouts, of
the subject ball fields, and specifically shall not include any out-of-play
areas, bleachers, buildings or structures of any kind, sidewalks, streets,
driveways, parking areas, playground or school yard areas.
7. SCMAF: Southern California Municipal Athletic Federation
8. PMBF: Players' Medical Benefit Fund
II. FINANCIAL CONSIDERATIONS:
A. As part of the services to be provided hereunder, PROVIDER shall collect on behalf
of CITY all team registration fees for the adult baseball and softball programs. As consideration
for its services under this Agreement, PROVIDER shall be entitled to retain 80% of the gross
receipts from team registration and forfeit fees for adult softball teams and PROVIDER shall be
entitled to retain 85% of the gross receipts from team registration and forfeit fees for adult
baseball teams. PROVIDER shall pay to CITY the other 20% of the gross receipts from adult
softball team registration and forfeit fees and 15% of the gross receipts from adult baseball team
registration and forfeit fees. Gross receipts shall not include team payments for SCMAF
registration fees (Sect. IV B (7)) and PMBF fees (Sect. IV B (8)).
B. Payments of the City share of team registration and forfeit fees shall be made by
PROVIDER to CITY in accordance with the payment schedule provided in Section IV B (9)
below. PROVIDER shall administer the registration system including, but not limited to
registrations, collecting of fees, providing a receipt and keeping of an accounting procedure
acceptable to CITY.
III. TERM
The term of this Agreement for exclusive operation and management of the adult softball
program at Encanto Field and the adult baseball program at Fiscalini Field shall be for a period
of one (1) year, beginning on January 1, 2010 and expiring on December 31, 2010, with two (2)
optional one-year renewals, unless earlier terminated in accordance with other provisions of this
Agreement.
Page 2 of 11
IV. OPERATING RESPONSIBILITIES:
A. GENERAL
1. Employees: PROVIDER shall provide such employees or independent
contractors (collectively referred to as "employees") as may be required to render good service,
to the satisfaction of STAFF. Such persons shall be satisfactory to STAFF as to their personal
conduct,honesty, courtesy, health,personal appearance and willingness to cooperate with CITY
employees. In the event an employee is not satisfactory, as herein defined, STAFF may furnish a
written directive to PROVIDER to correct the cause of said dissatisfaction. If PROVIDER does
not correct said problem to the satisfaction of CITY within 30 days after said written directive is
received, STAFF may furnish a subsequent written notice to PROVIDER requiring that said
employee be excluded from providing further services to CITY.
2. Operation. PROVIDER shall provide general supervision of fields
including the enforcement of safety practices and regulations during periods the fields are in use
in connection with the operation of the City of San Bernardino Adult Softball and Baseball
Programs (in accordance with published game schedules as submitted to and approved by
CITY). PROVIDER shall have the right to exclude from using the fields registered participants
who do not abide by established rules.
3. Conduct. PROVIDER shall at all times perform its services in a quiet and
orderly manner to the satisfaction of STAFF.
4. Disorderly Persons: PROVIDER shall use its reasonable efforts to prohibit
intoxicated persons, profane or indecent language, or boisterous or loud conduct in or about the
softball and baseball fields and will call upon the aid of peace officers to assist in maintaining
peaceful conditions.
5. Permits and Licenses: PROVIDER shall be required to obtain at its sole
expense any and all permits or licenses that may be required in connection with PROVIDER's
subject operation including, but not limited to, tax permits, business licenses and health permits.
6. Sins and Advertisements: No signs of any kind shall be displayed by
PROVIDER unless approved by CITY, who may require removal or refurbishment of any sign
previously approved. PROVIDER shall not permit vendors to display wares unless written
permission is secured from CITY and such permission shall be subject to revocation at any time.
CITY may charge and collect fees for the display of signs advertising products and/or services.
7. Sponsorship: Notwithstanding that PROVIDER is providing to CITY the
operating services contemplated in this Agreement, it is acknowledged that the City of San
Bernardino Adult Softball and Baseball Programs are sponsored by CITY, and that PROVIDER
is not a sponsor or co-sponsor of said Programs.
Page 3 of I I
B. ADMINISTRATION
1. League Director: The LEAGUE DIRECTOR shall oversee the program on
a day-to-day basis. The League Director shall be an experienced umpire/scorekeeper who will
work to serve the needs of both City and program participants.
2. League Coordination: The dates designated for and the duration of each
league, registration procedures and the number of games offered will be determined by and
within the sole discretion of CITY. PROVIDER shall schedule adult softball league play at
Encanto Park and adult baseball league play at Fiscalini Field according to facility schedules as
determined by and within the sole discretion of CITY.
3. Marketing: PROVIDER shall at all times use its reasonable best efforts to
provide for the best possible program promotion, consistent with the marketing services
generally offered by persons engaged in providing services similar to those required of
PROVIDER under this Agreement. Services shall include, but may not be limited to, press
releases, program flyers, copy for the City Brochure, letters and forms, mailing lists, a phone
"hot line", and internet/website registration and promotion. All such marketing materials and
forms must be submitted to CITY by established deadlines. CITY'S written approval shall be
obtained before such materials are distributed.
4. Pre-Season Services: PROVIDER shall arrange with STAFF mutually
agreeable dates, times, and a San Bernardino location for team registration. PROVIDER shall
collect and deposit league fees into a separate "San Bernardino" checking account. PROVIDER
shall be responsible for team classification and league formation resulting in the most balanced
and equitable competition possible. PROVIDER shall be responsible for preparing, printing and
distributing of game schedules. Copies of game schedules shall be provided to CITY prior to the
start of each season. Changes to game schedules will be provided to CITY by fax within three(3)
calendar days after necessity for change has been determined and/or implemented. In addition,
PROVIDER shall post timely schedule changes on their website.
5. Sign In Sheets: PROVIDER shall provide sign-in sheets with hold
harmless/release/assumption of risk provisions ("Release"), approved in advance by CITY in
writing and ensure that each player signs the Release. PROVIDER shall not permit any person
to play any games unless that person has signed the Release.
6. Managers' Meeting_ PROVIDER shall organize and supervise each pre-
season managers' meeting. This meeting will include distribution of league rules. City facilities
will be made available for this purpose.
7. Southern California Municipal Athletic Federation (SCMAF):
PROVIDER shall complete all SCMAF team registration paperwork for those teams that choose
to pay the prevailing registration fee, as required by SCMAF, and pay such registration fees to
SCMAF within thirty(30) days of the first scheduled day of the season.
Page 4 of 11
8. Player's Medical Benefit Fund: PROVIDER shall collect and deposit the
optional PMBF fee for each team that pays it. .
9. Method of Payment: PROVIDER shall pay to CITY 15% of the gross
receipts from team registration and forfeit fees for Adult Baseball and 20% of gross receipts
from team registration and forfeit fees for Adult Softball, in accordance with the following
schedule:
Winter League on or before April 15
i
Spring League on or before July 15
I
Summer League on or before October 15
Fall League on or before January 15
PROVIDER shall transmit with payment, a Gross Receipts Report for the season for which
payment is submitted. STAFF shall provide a form for this purpose, and the completed form
shall include a statement of the gross receipts by source of sales, and such other information as
STAFF may require. The payment/check shall be made payable to "City of San Bernardino".
The payment shall be addressed to:
City of San Bernardino
Parks, Recreation& Community Services Dept.
1350 South E Street
San Bernardino, California 92408
In the event PROVIDER fails to submit payment by the date due, interest at the maximum
amount allowed by law will be charged for each month, or fraction thereof, that the payment is
due. This charge is intended to compensate CITY for additional accounting and administrative
costs.
C. SERVICES
1. Officiating Services: PROVIDER shall recruit, train, supervise and
evaluate softball and baseball umpires. PROVIDER shall schedule and assign the approved
number of SCMAF and C.I.F. certified umpires to all games.
2. Scorekeeping Services: PROVIDER shall recruit, train, supervise and
evaluate all scorekeepers. PROVIDER shall schedule and assign league scorekeepers to all
games. PROVIDER shall provide computerized scoring of all league softball and baseball games
and generate and provide to teams reports at the conclusion of each game. CITY shall provide
one(1) 110-volt electrical outlet at each field.
3. Equipment: PROVIDER shall provide all essential game equipment,
including, but not necessarily limited to: one (1) new and one (1) good used SCMAF approved
softball or baseball for each game, certified home plate extensions on each field, and Hollywood
Impact or similar City approved quality bases for each field.
Page 5 of 11
a
5. Field Maintenance: PROVIDER shall perform maintenance services in
accordance with PROVIDER'S written proposal titled "Major League Softball Ballfield
Maintenance Services,"a copy of which is attached hereto and incorporated herein as
Attachment I. Each term and condition set forth in Attachment I shall apply and is incorporated
in this Agreement by reference. PROVIDER shall perform basic upkeep (e.g., watering,
dragging, chalking and field prep) leaving the fields in the condition in which they are received.
CITY shall mow and edge the turf on a weekly basis, and shall apply fertilizer and seed as
necessary.
4. Awards: PROVIDER shall provide individual awards for first and
second place teams. Awards shall consist of shirts, sweatshirts or similar items as approved by
City. Awards shall also be provided for statistical leaders in up to three (3) categories in each
league at the end of each season.
V. SOFTBALL AND/OR BASEBALL FIELD IMPROVEMENTS:
PROVIDER may make additional softball and/or baseball field improvements subject to
prior written approval of CITY. In addition, CITY may, from time to time, make certain
improvements, which it deems to be advantageous or necessary for the protection of public
property.
VI. LIABILITY AND INSURANCE:
A. Hold Harmless:
1 . CITY and its respective elected and appointed boards, officials, officers,
agents, employees and volunteers (individually and collectively, "CITY") shall have no liability
to PROVIDER or any other person for, and PROVIDER shall indemnify, defend, protect and
hold harmless CITY from and against, any and all liabilities, claims, actions, causes of action,
proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature,
including reasonable attorney's fees and disbursements(collectively "Claims"), which CITY may
suffer or incur or to which CITY may become subject by reason of or arising out of any injury to
or death of any person(s), damage to property, loss of use of property, economic loss or
otherwise to the extent occurring as a result of or allegedly caused by the negligent, willful or
unlawful acts or omissions of PROVIDER, its agents, officers, directors or employees,
committed in performing any of PROVIDER'S services under this Agreement.
2 . If any action or proceeding is brought against CITY by reason of any of
the matters against which PROVIDER has agreed to indemnify CITY as provided above,
PROVIDER, upon notice from CITY, shall defend CITY at PROVIDER'S expense by counsel
acceptable to CITY, such acceptance not to be unreasonably withheld. CITY need not have first
paid for any of the matters to which CITY is entitled to indemnification in order to be so
indemnified. The provisions of this section shall survive the expiration or earlier termination of
the Agreement.
Page 6 of 11
3 . The provisions of this section do not apply to Claims to the extent
occurring as a result of the City's sole negligence or willful acts or omissions committed by the
City in performing any of the City's obligations under this Agreement.
B. Insurance:
While not restricting or limiting the foregoing, during the term of this Agreement,
PROVIDER 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 the City.
C. Worker's Compensation:
PROVIDER shall at all times during the term of the Agreement subscribe to and
comply with the Worker's Compensation Laws of the State of California and pay such premiums
as may be required thereunder, and hold CITY harmless from any and all liability arising from or
under such act. Prior to any operations being performed under this Agreement, and at such other
times as may be requested, it shall famish to the City's Risk Manager a copy of the official
certificate of receipt, showing payments are current.
D. Safety:
With respect to the services being furnished by PROVIDER under this Agreement,
PROVIDER shall correct safety deficiencies and violations of safety practices immediately and
shall cooperate fully with CITY in the investigation of accidents occurring on the softball fields.
In the event of injury to a patron or customer, PROVIDER shall ensure that the injured person
receives prompt and qualified medical attention, and as soon as possible thereafter, it shall
submit a "City Accident Report" form.
VII. DEFAULT AND CANCELLATION:
In the event PROVIDER defaults in the performance of any of the terms or conditions of
the Agreement, or fails to conform to the rules and regulations or any of the directions or
instructions that may be properly made by CITY in the exercise of its powers, or fails, neglects,
or refuses to pay the CITY'S monies or any part thereof within thirty (30) days after the same
shall become due, or becomes unable through personal incapacity to fulfill its obligations under
the Agreement or defaults in the performance of any of the other terms or provisions therein
required, CITY shall have the following options without further notice or authorization from
PROVIDER, and its choice of any option shall in no way waive its rights to select any other
Page 7 of 11
option at any time:
within thirty 30 days after written
A. If the PROVIDER does not cure said default tth ( ) y
rty
notice of default (forthwith for a default involving sanitary or safety conditions) or make
reasonable progress to cure said default, CITY may terminate the Agreement, assume the
operation, and exclude PROVIDER and/or
B. CITY may recover at law any and all claims which may be due CITY; and/or
C. CITY may perform such work as it deems necessary to cure said default and charge
PROVIDER for the full cost of labor and materials expended, plus thirty percent (30%) of said
cost for administrative overhead. STAFF may exercise this option immediately in the event of a
default involving cleanliness or safety provisions of the Agreement. STAFF may exercise this
option within ten (10) days after giving PROVIDER written notice of default involving
maintenance provisions of this Agreement.
D. In the event of abandonment or other inability of PROVIDER to conduct the services
required herein, CITY shall have the right to take immediate possession of all operations.
The acceptance of all or part of a payment by CITY for any period after a default shall
not be deemed a waiver of any of these options, nor a waiver of the default or any subsequent
default of the same or any other term, covenant or condition. Any waiver by CITY of a default
on the part of the PROVIDER shall not be construed as, or constitute a waiver of, any
subsequent default of the same or any other term, covenant or condition.
In the event CITY defaults in the performance of any of the terms or conditions of the
Agreement, and if a written notice of such default is issued to CITY by PROVIDER by
registered mail, and if CITY does not cure said default within thirty (30) days of receipt of said
notice as evidenced by return receipt of registered mail, then PROVIDER may immediately
terminate the Agreement and recover at law any and all claims which may be due. However, if
PROVIDER fails to notify CITY of its default within sixty (60) days after learning of its
occurrence, then it has automatically waived any and all of its rights occurring hereunder.
VIII. ASSIGNMENT. BANKRUPTCY:
PROVIDER shall not transfer, assign or in any manner convey any of the rights or
privileges therein granted without the written consent of CITY. Neither the Agreement nor the
rights therein granted shall be assignable or transferable by any process or proceedings in any
court, or by attachment, execution, proceedings in insolvency or bankruptcy, either voluntary or
involuntary, or receivership proceedings. In the event of insolvency or bankruptcy, either
voluntary or involuntary, CITY, at its option, may terminate and cancel this Agreement, in which
event all rights of PROVIDER herein shall cease immediately and possession of the softball
and/or baseball fields shall be delivered to CITY.
IX. BUSINESS RECORDS:
Page 8 of I 1
i
i
A. PROVIDER shall be required to maintain a method of accounting of all receipts in
connection with the performance of its services hereunder, which shall correctly and accurately
reflect the gross receipts received by PROVIDER relating to this Agreement. The method of
accounting, including bank accounts established for operations under this Agreement, shall be
separate from the accounting system used for any other business operation of PROVIDER. Such
method shall include the keeping of the following documents:
1. Any accounting records that CITY in its sole discretion deems necessary
for proper reporting of receipts.
2. A log showing the number of teams registered in each league. This log is
to be considered an accounting record. What about team members? All
registration materials or receipts?
B. All such documents, books and accounting records shall be open for inspection
and reinspection at any reasonable time during the terns of the Agreement and for a reasonable
period, not to exceed seven years, thereafter. In addition, CITY may, from time to time, conduct
an audit and re-audit of the books and business conducted by PROVIDER, and observe the
operation of the business so that accuracy of the above records can be confirmed. If the report of
gross receipts made by PROVIDER to CITY shall be found to be less than the amount of gross
receipts disclosed by such audit and observation, PROVIDER shall pay CITY within thirty (30)
days after billing any additional amounts disclosed by such audit. If discrepancy exceeds two
(2%) and no reasonable explanation is given for such discrepancy, PROVIDER shall also pay the
cost of the audit. The PROVIDER understands that an annual audit by the CITY may be
conducted and PROVIDER agrees to cooperate fully with the CITY during each audit. All
information obtained in connection with CITY'S inspections of records or audits shall be
received and maintained in confidence and shall not be disclosed to anyone not directly
connected with the official business of CITY,to the extent permitted by law.
X. REGULATIONS, INSPECTION AND DIRECTIVES:
A. City Rules: PROVIDER and its employees shall at all times abide by all Rules and
Regulations heretofore adopted or that may hereafter be adopted by CITY and cooperate fully
with CITY employees in the performance of their duties.
B. Laws and Ordinances: PROVIDER shall conduct its business in accordance with all
the laws, ordinances, rules and regulations applicable to such business as set forth by the City,
County, State and Federal government.
C. Permissions: Any permission required by the Agreement shall be secured in writing
by PROVIDER from CITY and any errors or omissions therefrom shall not relieve PROVIDER
of its obligations to faithfully perform the conditions therein,.PROVIDER shall immediately
comply with any written request or order submitted to it by CITY or STAFF.
D. Right of Inspection: CITY and STAFF, their authorized representatives, agents and
". employees shall have the right to enter upon the subject softball and baseball fields at any and all
Page 9 of 11
reasonable times for the purpose of inspection and observation of PROVIDER'S operations.
During these inspections, they shall have the right to utilize photographic devices and other
instruments for recording conditions and events taking place upon the subject ball fields. Said
inspections may be made by persons identified to PROVIDER as City employees, or may be
made by independent contractors engaged by CITY.
E. Standard of Performance: PROVIDER represents and warrants that it has the
qualifications and experience necessary to properly perform the services required under this
Agreement in a thorough, competent and professional manner. PROVIDER shall at all times
faithfully, competently and to the best of its ability, experience and talent perform all services
described herein. In meeting its obligations under this Agreement, PROVIDER shall employ,at a
minimum, generally accepted standards and practices utilized by persons engaged in providing
services similar to those required of PROVIDER under this Agreement.
F. Nondiscrimination: PROVIDER shall not discriminate, in any way, against any
person on the basis of race, religious creed, 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.
G. Severability: In case any one or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and the remainder of the
provisions of this Agreement shall continue in full force without impairment.
H. Governing Law: This Agreement shall be governed by the laws of the State of
California.
I. Venue: All actions or proceedings arising in connection with this Agreement shall be
tried and litigated in the San Bernardino County Superior Court or the United States District
Court for the Central District of California, Eastern Division. This choice of venue is intended
by the parties to be mandatory, not permissive.
J. 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 to be a waiver of such breach or a
waiver of future breaches, unless such waiver be in writing and signed by the party against
whom enforcement is sought.
K. Integration: This Agreement constitutes the entire Agreement of the parties
concerning the subject matter hereof and all prior agreements or understandings, oral or written,
are hereby merged herein. This Agreement shall not be amended in any way except by a writing
expressly purporting to be such an amendment, signed and acknowledged by both parties hereto.
Page 10 of I 1
i
XI. AGREEMENT IN DUPLICATE:
This Agreement is executed in duplicate, each copy of which shall be deemed as an
original.
Signatures appear after Paragraph XI on next page
VENDOR SERVICES AGREEMENT
MAJOR LEAGUE SOFTBALL, INC. and CITY OF SAN BERNARDINO
IN WITNESS WHEREOF, CITY and PROVIDER have executed the same, the day and
year hereinabove written.
MAJOR LEAGUE SOFTBALL, INC. CITY OF SAN BERNARDINO
By: By:
Title: Title: City Manager
Dated: Dated:
Approved as to Form:
James F. Penman, City Attorney
By:
i
Page 11 of 11
15. Continued.
No Action Taken
MOTION: That said resolution be adopted.
Approved
MOTION: That the matter be continued to January 4, 2010.
XXICxXXXXXXXXX}IItXXXXXXXXXXXXXXX
16. Resolution of the Mayor and Common Council of the City of San Bernardino
authorizing the City Manager to execute a Facility Use Agreement by and
between California State University, San Bernardino and the City of San
Bernardino allowing for the University's use of Fiscalini Field from December
26, 2009 through December 25, 2010, with the option of three (3) one-year
renewals. (See Attached) (No Cost to the City - $17,500 Revenue from
University annually) (Resolution not available at time of printing.) Ward 2
Approved
MOTION: That said resolution be adopted.
Adopted 2009-378
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
17. Resolution of the Mayor and Common Council of the City of San Bernardino
authorizing the City Manager to execute an Operating Services Agreement by
and between Major League Softball, Inc. (MLS) and the City of San Bernardino
for the organization and management of the Parks, Recreation and Community
Services Department's adult softball and adult baseball programs; MLS is
granted use of Encanto Field from January 1, 2010 through December 31, 2010
with two (2) optional one-year renewals; and use of Fiscalini Field from May
28, 2010 through October 31, 2010, with the option of one (1) one-year
renewal. (See Attached) (No Cost to the City - Anticipated Revenue of
$4,000) (Resolution not available at time of printing.) Wards 2 & 6
Approved
MOTION: That the matter be continued to January 4, 2010.
XXXXXXX X XXXXXXXXXX
Police
18. Resolution by the Mayor and Common Council to execute Amendment No. 2 to
the Agreement for Crossing Guard Services with All City Management Services
for a crossing guard position at Victoria Elementary School (Redlands Unified
School District. (See Attached) (Cost to the City - $5,150 Net Cost: $10,300
Cost; $5,150 Revenue) Ward 3
(Item Continued on Next Page)
7 12/21/2009
CITY OF SAN BERNARDINO -REQUEST FOR COUNCIL ACTION
From: Kevin Hawkins, Director Subject: Resolution authorizing the City
Manager to execute a Operating Services
Dept: Parks and Recreation Agreement between Major League
Softball, Inc. and the City of San
Date: December 7, 2009 Bernardino for the provision of adult
softball and adult baseball programs, and
allowing for the use of Encanto Field and
Fiscalini Field.
MICC Date: December 21, 2009
Synopsis of Previous Council Action:
September 5,2006—Resolution No. 2006-327 authorized an Agreement between the City of San
Bernardino and Major League Softball, Inc. for adult baseball and adult softball services for a
three year period of September 1, 2006 through August 31, 2009.
August 18, 2003 —Resolution No. 2003-236 authorized an Agreement with Major League
Softball, Inc. for adult baseball and adult softball services from September 1, 2003 through
August 31, 2006.
Recommended Motion:
Adopt Resolution.
Kevin Hawkins
Contact person: Robert Lennox, Deputy Director Phone: 5233
i Supporting data attached: Staff Report, Reso, Agreement Ward(s): 2 & 6
FUNDING REQUIREMENTS: Amount: Anticipated rPVPnue t0 the City- $4,000
Source: (Acct.No.)
Acct. Description:
Finance:
Council Notes:
Agenda Item No.
12-2�_0q
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 an Operating Services Agreement by and between Major League
Softball, Inc. (MLS) and the City of San Bernardino for the organization and management of
the Parks, Recreation and Community Services Department's Adult Softball and Adult Baseball
Programs; MLS is granted use of Encanto Field from January 1, 2010 through December 31,
2010, with two (2) optional one-year renewals; and use of Fiscalini Field from May 28, 2010
through October 31, 2010, with the option of one (1) one-year renewal.
Background:
The City of San Bernardino Parks, Recreation and Community Services Department is
proposing to extend an agreement with Major League Softball, Inc. (MLS). MLS is a
company that collaborates with municipal parks & recreation departments to increase the
efficiency and effectiveness of adult baseball and softball programs. MLS currently has
agreements with over 24 parks and recreation departments in southern California to administer
adult baseball and adult softball programs.
MLS has provided this service to the City of San Bernardino for six years. They have served
493 adult softball teams and 170 adult baseball teams from the fall of 2003 through the summer
of 2009.
MLS will provide supervision, program administration/registration, equipment, officiating
services, marketing of programs, scorekeeping services, statistical reports, awards, and field
maintenance/preparation.
The fields subject to this agreement include Encanto Park (January 1, 2010 through December
31, 2010) and Fiscalini Field (May 28, 2010 through October 31, 2010).
FYnancial Impact:
MLS coordinates team registration, and shall retain 80% of the gross receipts from registration
and forfeit fees for adult softball teams; and 85% of the registration and forfeit fees for adult
baseball teams. MLS shall pay to City the remaining 20% (for adult softball fees) and 15%
(for adult baseball fees). Anticipated annual revenue to the City for the term of the initial
agreement is $4,000.00.
Recommendation:
Adopt Resolution.
1 RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
OPERATING SERVICES AGREEMENT BY AND BETWEEN MAJOR LEAGUE
4 SOFTBALL, INC. (MLS) AND THE CITY OF SAN BERNARDINO FOR THE
ORGANIZATION AND MANAGEMENT OF THE PARKS, RECREATION AND
5 COMMUNITY SERVICES DEPARTMENT'S ADULT SOFTBALL AND ADULT
6 BASEBALL PROGRAMS; MLS IS GRANTED USE OF ENCANTO FIELD
FROM JANUARY 1, 2010 THROUGH DECEMBER 31, 2010, WITH TWO (2)
7 OPTIONAL ONE-YEAR RENEWALS; AND USE OF FISCALINI FIELD FROM
MAY 28, 2010 THROUGH OCTOBER 31, 2010, WITH THE OPTION OF ONE (1)
8 ONE-YEAR RENEWAL.
9 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF
10 THE CITY OF SAN BERNARDINO AS FOLLOWS:
11 Section 1: That the City Manager is hereby authorized to execute on behalf of
12 said City the Operating Services Agreement with Major League Softball, Inc., a copy
13 of which is attached hereto, marked as Exhibit "A", and incorporated herein by
14
reference as fully as though set forth at length; and
15
16 Section 2: That the authorization to execute the above referenced Operating
17 Services Agreement is rescinded if the parties to the agreement fail to execute it within
18 thirty (30) days of the passage of this resolution.
19
20
21
22
23
24
u/
26
27
28
I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN
2 OPERATING SERVICES AGREEMENT BY AND BETWEEN MAJOR LEAGUE
3 SOFTBALL, INC. (MLS) AND THE CITY OF SAN BERNARDINO FOR THE
ORGANIZATION AND MANAGEMENT OF THE PARKS, RECREATION AND
4 COMMUNITY SERVICES DEPARTMENT'S ADULT SOFTBALL AND ADULT
BASEBALL PROGRAMS; MLS IS GRANTED USE OF ENCANTO FIELD
5 FROM JANUARY 1, 2010 THROUGH DECEMBER 31, 2010, WITH TWO (2)
OPTIONAL ONE-YEAR RENEWALS; AND USE OF FISCALINI FIELD FROM
6 MAY 28,2010 THROUGH OCTOBER 31,2010,WITH THE OPTION OF ONE (1)
7 ONE-YEAR RENEWAL.
8 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the
9 Mayor and Common Council of the City of San Bernardino at a meeting
10 thereof, held on the_day of 2009, by the following vote, to wit:
11
Council Members: AYES NAYS ABSTAIN ABSENT
12
13 ESTRADA
14 BAXTER
15 BRINKER
16 SHORETT _
17
18 KELLEY
19 JOHNSON
20 MCCAMMACK
21
22 Rachel Clark, City Clerk
23 The foregoing resolution is hereby approved this day of
24 2009.
26 City of San Bernardino
Approved as to form:
27 James F. Penman, City Attorney By:
28
OPERATING SERVICES AGREEMENT
MAJOR LEAGUE SOFTBALL
This Operating Services "Agreement" made the day of , 2009,
by and between the CITY OF SAN BERNARDINO, a municipal corporation, hereinafter
referred to as CITY, and MAJOR LEAGUE SOFTBALL, INC., a California corporation
hereinafter referred to as PROVIDER.
WITNESSETH:
In consideration of this their mutual covenants and conditions, CITY exclusively retains
PROVIDER to organize and manage the City of San Bernardino Parks, Recreation &
Community Services Department's Adult Softball and Adult Baseball Programs and to do the
things necessary to provide the services, and to make payment to CITY, in accordance to the
terms contained herein.
I. DEFINITIONS
A. For the purpose of this Agreement, the following words and phrases are defined
and shall be construed as hereinafter set out:
1. CITY: The City of San Bernardino, acting by and through the Director of
the Parks, Recreation and Community Services Department.
2. PROVIDER: The Individual or Corporation with whom CITY enters into
this Agreement, and the person with whom the Parks, Recreation &
Community Services Department Director or their representative deals
regarding subject Agreement. All employees and agents of the
PROVIDER are subject to the terms of this Agreement.
3. STAFF: The Parks, Recreation & Community Services Department
Director, or their authorized representative, acting as agents of CITY.
4. SCOPE OF SERVICES: The services to be provided by PROVIDER, and
the responsibilities of PROVIDER, shall be limited to the following
functions:
A. Program Administration/Registration
B. Officiating Services
C. Scorekeeping Services
D. Awards
5. LEAGUE DIRECTOR: The individual assigned by PROVIDER to
Page 1 of 11
provide daily supervision.
6. SOFTBALL FIELDS: The terms "softball fields" and "fields" as used in
this Agreement shall mean only the in-play areas of the subject ball fields,
and specifically shall not include any out-of-play areas, bleachers,
buildings or structures of any kind, sidewalks, streets, driveways, parking
areas,playground or school yard areas.
7. SCMAF: Southern California Municipal Athletic Federation
8. PMBF: Players' Medical Benefit Fund
II. FINANCIAL CONSIDERATIONS:
A. As part of the services to be provided hereunder, PROVIDER shall collect on behalf
of CITY all team registration fees for the adult baseball and softball programs. As consideration
for its services under this Agreement, PROVIDER shall be entitled to retain 80% of the gross
receipts from team registration and forfeit fees for adult softball teams and PROVIDER shall be
entitled to retain 85% of the gross receipts from team registration and forfeit fees for adult
baseball teams. PROVIDER shall pay to CITY the other 20% of the gross receipts from adult
softball team registration and forfeit fees and 15% of the gross receipts from adult baseball team
registration and forfeit fees. Gross receipts shall not include team payments for SCMAF
registration fees(Sect. IV B (7)) and PMBF fees (Sect. IV B (8)).
B. Payments of the City share of team registration and forfeit fees shall be made by
PROVIDER to CITY in accordance with the payment schedule provided in Section IV. B. 9
below. PROVIDER shall administer the registration system including, but not limited to
registrations, collecting of fees, providing a receipt and keeping of an accounting procedure
acceptable to CITY.
III. TERM
The term of this Agreement for exclusive operation and management of the adult softball
program at Encanto Field and the adult,baseball program at Fiscalini Field shall be for a period
of one (1) year, beginning on January 1, 2010 and expiring on December 31, 2010, with two (2)
optional one-year renewals, unless earlier terminated in accordance with other provisions of this
Agreement.
Page 2 of 11
IV. OPERATING RESPONSIBILITIES:
A. GENERAL
1. Employees: PROVIDER shall provide such employees or independent
contractors (collectively referred to as "employees") as may be required to render good service,
to the satisfaction of STAFF. Such persons shall be satisfactory to STAFF as to their personal
conduct,honesty, courtesy,health, personal appearance and willingness to cooperate with CITY
employees. In the event an employee is not satisfactory, as herein defined, STAFF may furnish a
written directive to PROVIDER to correct the cause of said dissatisfaction. If PROVIDER does
not correct said problem to the satisfaction of CITY within 30 days after said written directive is
received, STAFF may furnish a subsequent written notice to PROVIDER requiring that said
employee be excluded from providing further services to CITY.
2. Operation. PROVIDER shall provide general supervision of fields
including the enforcement of safety practices and regulations during periods the fields are in use
in connection with the operation of the City of San Bernardino Adult Softball and Baseball
Programs (in accordance with published game schedules as submitted to and approved by
CITY). PROVIDER shall have the right to exclude from using the fields registered participants
who do not abide by established rules.
3. Conduct. PROVIDER shall at all times perform its services in a quiet and
orderly manner to the satisfaction of STAFF.
4. Disorderly Persons: PROVIDER shall use its reasonable efforts to prohibit
intoxicated persons, profane or indecent language, or boisterous or loud conduct in or about the
softball and baseball fields and will call upon the aid of peace officers to assist in maintaining
peaceful conditions.
5. Permits and Licenses: PROVIDER shall be required to obtain at his sole
expense any and all permits or licenses that may be required in connection with PROVIDER's
subject operation including, but not limited to tax permits, business licenses and health permits.
6. Signs and Advertisements: No signs of any kind shall be displayed by
PROVIDER unless approved by CITY, who may require removal or refurbishment of any sign
previously approved. PROVIDER shall not permit vendors to display wares unless written
permission is secured from CITY and such permission shall be subject to revocation at any time.
CITY may charge and collect fees for the display of signs advertising products and/or services.
7. Sponsorship Notwithstanding that PROVIDER is providing to CITY the
operating services contemplated in this Agreement, it is acknowledged that the City of San
Bernardino Adult Softball and Baseball Programs are sponsored by CITY, and that PROVIDER
is not a sponsor or co-sponsor of said Programs.
1. League Director: The LEAGUE DIRECTOR shall oversee the program on
Page 3 of 11
a day-to-day basis. The League Director shall be an experienced umpire/scorekeeper who will
work to serve the needs of both City and program participants.
2. League Coordination: The dates designated for and the duration of each
league, registration procedures and the number of games offered will be determined by and
within the sole discretion of CITY. PROVIDER shall schedule adult softball league play at
Encanto Park and adult baseball league play at Fiscalini Field according to facility schedules as
determined by and within the sole discretion of CITY.
3. Marketing: PROVIDER shall at all times use its reasonable best efforts to
provide for the best possible program promotion, consistent with the marketing services
generally offered by persons engaged in providing services similar to those required of
PROVIDER under this Agreement. Services shall include, but may not be limited to, press
releases, program flyers, copy for the City Brochure, letters and forms, mailing lists, a phone
"hot line", and internet/website registration and promotion. All such marketing materials and
forms must be submitted to CITY by established deadline. CITY'S written approval shall be
obtained before such materials are distributed.
4. Pre-Season Services: PROVIDER shall arrange with STAFF mutually
agreeable dates, times, and a San Bernardino location for team registration. PROVIDER shall
collect and deposit league fees into a separate "San Bernardino" checking account. PROVIDER
shall be responsible for team classification and league formation resulting in the most balanced
and equitable competition possible. PROVIDER shall be responsible for preparing, printing and
distributing of game schedules. Copies of game schedules shall be provided to CITY prior to the
start of each season. Changes to game schedules will be provided to CITY within three (3)
calendar days after their occurrence. Faxed copies and changes are preferred, although timely
website postings are also desirable.
5. Sign In Sheets: PROVIDER shall provide sign-in sheets with hold
harmless/release/assumption of risk provisions ("Release"), approved in advance by CITY in
writing and ensure that each player signs the Release. PROVIDER shall not permit any person
to play any games unless that person has signed the Release.
6. Managers' Meeting: PROVIDER shall organize and supervise each pre-
season managers' meeting. This meeting will include distribution of league rules. City facilities
will be made available for this purpose.
7. Southern California Municipal Athletic Federation (SCMAF):
PROVIDER shall complete all SCMAF team registration paperwork for those teams that choose
to pay the prevailing registration fee, as required by SCMAF, and pay such registration fees to
SCMAF within thirty(U0 days ofilc first sc e e tiay of the season.
8. Player's Medical Benefit Fund: PROVIDER shall collect and deposit the
optional PMBF fee for each team that pays it. .
Page 4 of 1 I
9. Method of Payment: PROVIDER shall pay to CITY 15% of the gross
receipts from team registration and forfeit fees for Adult Baseball and 20% of gross receipts
from team registration and forfeit fees for Adult Softball, in accordance with the following
schedule:
Winter League - on or before April 15
Spring League - on or before July 15
Summer League - on or before October 15
Fall League - on or before January 15
PROVIDER shall transmit with payment, a Gross Receipts Report for the season which payment
is submitted. STAFF shall provide a form for this purpose, and the completed form shall include
a statement of the gross receipts by source of sales, and such other information as STAFF may
require. The payment/check shall be made payable to "City of San Bernardino'. The payment
shall be addressed to:
City of San Bernardino
Parks,Recreation& Community Services Dept.
1350 South E Street
San Bernardino, California 92408
In the event PROVIDER fails to submit payment by the date due, interest at the maximum
amount allowed by law will be charged for each month, or fraction thereof, that the payment is
due. This charge is intended to compensate CITY for additional accounting and administrative
costs.
C. SERVICES
1. Officiating Services: PROVIDER shall recruit, train, supervise and
evaluate softball and baseball umpires. PROVIDER shall schedule and assign the approved
number of SCMAF and C.I.F. certified umpires to all games.
2. Scorekeeping Services: PROVIDER shall recruit, train, supervise and
evaluate all scorekeepers. PROVIDER shall schedule and assign league scorekeepers to all
games. PROVIDER shall provide computerized scoring of all league softball and baseball games
and generate and provide to teams reports at the conclusion of each game. CITY shall provide
one (1) 110-volt electrical outlet at each field.
3. ui e t: V
pm n PROVIDER shall provide all essential game equipment,
including, but not necessarily limited to: one (1) new and one (1) good used SCMAF approved
softball or baseball for eaeh game, '&ed home plate-extensions-on ---
Impact or similar City approved bases or each field.
PP
4. Field Maintenance: PROVIDER shall perform maintenance services in
Page 5 of 11
accordance with PROVIDER'S written proposal titled "The MLS Standard Ball Diamond
Maintenance System(SBDMS), Attachment I". Each term and condition set forth in Attachment
I shall apply and is incorporated in this Agreement by reference. . PROVIDER shall perform
basic user upkeep (e.g., watering, dragging, chalking and field prep). CITY shall mow and edge
the turf on a weekly basis, and shall apply fertilizer and seed as necessary.
5. Awards: PROVIDER shall provide individual awards for first and
second place teams. Awards shall consist of shirts, sweatshirts or similar items as approved by
City Awards shall also be provided for statistical leaders in up to three (3) categories in each
league at the end of each season.
V. SOFTBALL AND/OR BASEBALL FIELD IMPROVEMENTS:
PROVIDER may make additional softball and/or baseball field improvements subject to
prior written approval of CITY. In addition, CITY may, from time to time, make certain
improvements, which it deems to be advantageous or necessary for the protection of public
property.
VI. LIABILITY AND INSURANCE:
A. Hold Harmless:
1. CITY and its respective elected and appointed boards, officials, officers,
agents, employees and volunteers (individually and collectively, "CITY") shall have no liability
to PROVIDER or any other person for, and PROVIDER shall indemnify, defend, protect and
hold harmless CITY from and against, any and all liabilities, claims, actions, causes of action,
proceedings, suits, damages, judgments, liens, levies, costs and expenses of whatever nature,
including reasonable attorney's fees and disbursements (collectively "Claims"), which CITY may
suffer or incur or to which CITY may become subject by reason of or arising out of any injury to
or death of any person(s), damage to property, loss of use of property, economic loss or
otherwise to the extent occurring as a result of or allegedly caused by the negligent, willful or
unlawful acts or omissions of PROVIDER, its agents, officers, directors or employees,
committed in performing any of the PROVIDER'S obligations under this Agreement.
2 . If any action or proceeding is brought against CITY by reason of any of
the matters against which PROVIDER has agreed to indemnify CITY as provided above,
PROVIDER, upon notice from CITY, shall defend CITY at PROVIDER'S expense by counsel
acceptable to CITY, such acceptance not to be unreasonably withheld. CITY need not have first
paid for any of the matters to which CITY is entitled to indemnification in order to be so
indemnified. The provisions of this section shall survive the expiration or earlier termination of
the Agreement.
occurring as a result of the City's sole negligence or willful acts or omissions committed by the
City in performing any of the City's obligations under this Agreement.
Page 6 of 11
B. Insurance:
While not restricting or limiting the foregoing, during the term of this Agreement,
PROVIDER 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 Mayor 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 the City.
C. Worker's Compensation:
PROVIDER shall at all times during the term of the Agreement subscribe to and
comply with the Worker's Compensation Laws of the State of California and pay such premiums
as may be required thereunder, and hold CITY harmless from any and all liability arising from or
under such act. Prior to any operations being performed under this Agreement, and at such other
times as may be requested, it shall furnish a copy of the official certificate of receipt, showing
payments herein above referred to.
D. Safe .
With respect to the services being famished by PROVIDER under this Agreement,
PROVIDER shall correct safety deficiencies and violations of safety practices immediately and
shall cooperate fully with CITY in the investigation of accidents occurring on the softball fields.
In the event of injury to a patron or customer, PROVIDER shall ensure that the injured person
receives prompt and qualified medical attention, and as soon as possible thereafter, it shall
submit a "City Accident Report" form.
VII. DEFAULT AND CANCELLATION:
In the event PROVIDER defaults in the performance of any of the terms or conditions of
the Agreement, or fails to conform to the rules and regulations or any of the directions or
instructions that may be properly made by CITY in the exercise of its powers, or fails, neglects,
or refuses to pay the CITY'S monies or any part thereof within thirty (30) days after the same
shall become due, or becomes unable through personal incapacity to fulfill its obligations under
the Agreement or defaults in the performance of any of the other terms or provisions therein
required, CITY shall have the following options without further notice or authorization from
PROVIDER, and its choice of any option shall in no way waive its rights to select any other
option at any time:
A. If the PROVIDER does not cure said default within thirty (30) days after written
notice of default (forthwith for a default involving sanitary or safety conditions) or make
reasonable progress to cure said default, CITY may terminate the Agreement, assume the
Page 7 of 11
operation, and exclude PROVIDER and/or
B. CITY may recover at law any and all claims which may be due CITY; and/or
C. CITY may perform such work as it deems necessary to cure said default and charge
PROVIDER for the full cost of labor and materials expended, plus thirty percent (30%) of said
cost for administrative overhead. STAFF may exercise this option immediately in the event of a
default involving cleanliness or safety provisions of the Agreement. STAFF may exercise this
option within ten (10) days after giving PROVIDER written notice of default involving
maintenance provisions of this Agreement.
D. In the event of abandonment or other inability of PROVIDER to conduct the services
required herein, CITY shall have the right to take immediate possession of all operations.
The acceptance of all or part of a payment by CITY for any period after a default shall
not be deemed a waiver of any of these options,nor a waiver of the default or any subsequent
default of the same or any other terms, covenant and condition. Any waiver by CITY of a default
on the part of the PROVIDER shall not be construed as, or constitute a waiver of, any
subsequent default of the same or any other term, covenant and condition.
In the event CITY defaults in the performance of any of the terms or conditions of the
Agreement, and if a written notice of such default is issued to CITY by PROVIDER by
registered mail, and if CITY does not cure said default within thirty (30) days of receipt of said
notice as evidenced by return receipt of registered mail, then PROVIDER may immediately
terminate the Agreement and recover at law any and all claims which may be due. However, if
PROVIDER fails to notify CITY of its default within sixty (60) days after learning of its
occurrence,then it has automatically waived any and all of its rights occurring hereunder.
VIII. ASSIGNMENT,BANKRUPTCY:
PROVIDER shall not transfer, assign or in any manner convey any of the rights or
privileges therein granted without the written consent of CITY. Neither the Agreement nor the
rights therein granted shall be assignable or transferable by any process or proceedings in any
court, or by attachment, execution, proceedings in insolvency or bankruptcy, either voluntary or
involuntary, or receivership proceedings. In the event of insolvency or bankruptcy, either
voluntary or involuntary, CITY, at its option,may terminate and cancel this Agreement, in which
event all rights of PROVIDER herein shall cease immediately and possession of the softball
and/or baseball fields shall be delivered to CITY.
IX. BUSINESS RECORDS:
A. PROVIDER shall be required to maintain a method of accounting of all receipts in _
reflect the gross receipts received by PROVIDER relating to this Agreement. The method of
accounting, including bank accounts established for operations under this Agreement, shall be
Page 8 of 11
i
separate from the accounting system used for any other business operation of PROVIDER. Such
method shall include the keeping of the following documents:
1. Any accounting records that CITY in its sole discretion deems necessary
for proper reporting of receipts.
2. A log showing the number of teams registered in each league. This log is
to be considered an accounting record.
B. All such documents, books and accounting records shall be open for inspection
and reinspection at any reasonable time during the terms of the Agreement and for a reasonable
period, not to exceed one year, thereafter. In addition, CITY may, from time to time, conduct an
audit and re-audit of the books and business conducted by PROVIDER, and observe the
operation of the business so that accuracy of the above records can be confirmed. If the report of
gross receipts made by PROVIDER to CITY shall be found to be less than the amount of gross
receipts disclosed by such audit and observation, PROVIDER shall pay CITY within thirty (30)
days after billing any additional amounts disclosed by such audit. If discrepancy exceeds two
(2%) and no reasonable explanation is given for such discrepancy, PROVIDER shall also pay the
cost of the audit. The PROVIDER understands that an annual audit by the CITY may be
conducted and PROVIDER agrees to cooperate fully with the CITY during each audit. All
information obtained in connection with CITY'S inspections of records or audits shall be
received and maintained in confidence and shall not be disclosed to anyone not directly
connected with the official business of CITY, to the extent permitted by law.
X. REGULATIONS,INSPECTION AND DIRECTIVES:
A. City Rules: PROVIDER and its employees shall at all times abide by all Rules and
Regulations heretofore adopted or that may hereafter be adopted by CITY and cooperate fully
with CITY employees in the performance of their duties.
B. Laws and Ordinances: PROVIDER shall conduct its business in accordance with all
the laws, ordinances, rules and regulations applicable to such business as set forth by the City,
County, State and Federal government.
C. Permissions: Any permission required by the Agreement shall be secured in writing
by PROVIDER from CITY and any errors or omissions there from shall not relieve PROVIDER
of its obligations to faithfully perform the conditions therein, and without regard to any other
basis prohibited by law. PROVIDER shall immediately comply with any written request or order
submitted to it by CITY or STAFF.
D. Right of Inspection: CITY and STAFF, their authorized representatives, agents and
employees shall have the right to enter upon the subject softball and baseball fields at any and all
reagnnship. timeq tor the numnce nt ing—,n- - - T2t1f1rLS
During these inspections, they shall have the right to utilize photographic devices and other
instruments for recording conditions and events taking place upon the subject ball fields. Said
inspections may be made by persons identified to PROVIDER as City employees, or may be
Page 9 of 11
made by independent contractors engaged by CITY.
E. Standard of Performance: PROVIDER represents and warrants that it has the
qualifications and experience necessary to properly perform the services required under this
Agreement in a thorough, competent and professional manner. PROVIDER shall at all times
faithfully, competently and to the best of its ability, experience and talent perform all services
described herein. In meeting its obligations under this Agreement,PROVIDER shall employ, at a
minimum, generally accepted standards and practices utilized by persons engaged in providing
services similar to those required of PROVIDER under this Agreement.
F. Nondiscrimination: PROVIDER shall not discriminate, in any way, against any
person on the basis of race, religious creed, 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.
G. Severability: In case anyone or more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision hereof, and the remainder of the
provisions of this Agreement shall continue in full force without impairment.
H. Governine Law: This Agreement shall be governed by the laws of the State of
California.
I. Venue: All actions or proceedings arising in connection with this Agreement shall be
tried and litigated in the San Bernardino county Superior Court or the United States District
Court for the Central District of California, Eastern Division. This choice of venue is intended
by the parties to be mandatory, not permissive.
J. 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 to be a waiver of such breach or a
waiver of future breaches, unless such waiver be in writing and signed by the party against
whom enforcement is sought.
K. Integration: This Agreement constitutes the entire Agreement of the parties
concerning the subject matter hereof and all prior agreements or understandings, oral or written,
are hereby merged herein. This Agreement shall not be amended in any way except by a writing
expressly purporting to be such an amendment, signed and acknowledged by both parties hereto.
XI. AGREEMENT IN DUPLICATE:
original.
Page 10 of 11
I
Signatures appear after Paragraph XI on next page
VENDOR SERVICES AGREEMENT
MAJOR LEAGUE SOFTBALL, INC. and CITY OF SAN BERNARDINO
IN WITNESS WHEREOF, CITY and PROVIDER have executed the same, the day and
year hereinabove written.
MAJOR LEAGUE SOFTBALL, INC. CITY OF SAN BERNARDINO
By: By:
Title: Title: City Manner
Dated: Dated:
Approved as to Form:
James F. Penman, City Attorney
By:
Page 11 of 11
MAJOR LEAGUE SOFTBALL
IV BALL FIELD Periodic Field Repair Services
MAINTENANCE SERVICES
To the extent that adult softball or baseball play impacts
Before, during and after each softball season MLS the fields allocated for league use, the following repair
will provide the following services: services will be performed on each field programmed for
adult softbalt/baseball:
The MLS Standard Ball Diamond 1) Survey the traction(infield)area each season to
Maintenance System (SBDMS) evaluate the existing grade and decide which
equipment and grading method should be
The MLS Field Maintenance Division is managed employed to bring the inficld(s)to the proper
MLS's Director of Maintenance Operations(hereafter grade.See Paragraph*3 below for specific
details regarding grading equipment and methods.
"DFM") and his staff. The DFM has integrated his
own innovative techniques along with proven 2) After surveying the traction area of each infield,
maintenance procedures to create a comprehensive obtain andprovide whatever amount of traction
maintenance system that renders ball field conditions material("Angel Mix',decomposed granite,
that have proven both safe and enjoyable for program etc.)is necessary to build up the infields)that
have suffered significant material displacement—
participants. if additional traction material is needed to create
a level grade.It must be clearly understood that
The most remarkable benefit of the MLS Standard the SBDMS traction material replacement
Ball Diamond Maintenance System (SBDMS) is that feature is limited to replacing only those quantities
it affords program administrators the opportunity to of material that have been lost or displaced due to
resume league play immediately after inclement adult softball;basebalI use.The SBDMS will not
weather. The SBDMS eliminates the need to wait include replacement of traction materialwhen
multiple days for ball fields to dry after a heavy rain. such material loss or displacement is caused by
this feature has significantly reduced the number of weather and/or athletic uses such as college
rained-out games and the resulting rescheduling baseball.youth softball,soccer,school
programming or any field uses other than adult
burden. MLS warrants that the SBDMS will enable it softball or baseball.
to schedule and complete four(4) softball seasons per
year, regardless of the amount of rainfall. 3) On two(2)occasions per year,grade the traction area
of each infield using a skip loader and"Gannon-
By their very nature, every softball field has a unique grading box.Traction material will be added where
set of conditions that requires special attention. necessary during the grading process.Traction material
Therefore, the Major League Softball SBDMS purchases will be prorated such that MLS will pay for
consists of two traction material only to the the extent of the SBDMS
177-71 �, k k ' d i s t i n c t material replacement feature defined in Paragraph 2
e l e m e n t s :: above and the City will pay for the portion of each
Periodic Repair traction material purchase that is needed due to
Services and the non-adult softballrbaseball uses and/or weather.To
D a i I y ensure optimal drainage,safety and playability on
n c _ each-intieldaUocatedforad Or sofball league ----
Program. laser leveled on one(1)occasion per year.MLS
will invoice the City the sum of 3500.00 per
infield after rendering laser leveling services.
1
THE MAJOR LEAGUE ALTERNATIVE
4) On a seasonal basis,survey the outfield(sodded) perimeter edge such that it will remain free of
area to determine which areas are worn or infield mix buildup.It must be clearly understood
damaged due to adult softball use.It must be that this infield perimeter border edge repair
clearly understood that this SBDMS sod feature is limited to repair of damage caused by
replacement feature is limited to damage or wear adult softball or baseball use only.The SBDMS
that is specifically caused by adult softball use will not provide repair of perimeter border edges
only. Worn or damaged areas of a softball or when such repairs are caused by weather and/or
baseball outfield that have been caused by other athletic uses such as college baseball,youth
activities or athletic uses such as soccer, rugby, softball or baseball,soccer,school programming
football or school programming such as college or any field uses other than adult softball or
baseball will not be considered part of the outfield baseball.
area that will be repaired by the SBDMS.
MLS will evaluate the existing conditions on each
5) When necessary,obtain and provide whatever type field allocated for adult program use prior to
of sod that is currently used as outfield turf(i.e. commencement Of a contract. If the existing
berrnuda,perennial rye,etc.) MLS will supply g
enough sod to completely fill those areas which conditions on each softball field do not meet industry
are heavily impacted by adult softball or baseball standards then MLS will prepare a written estimate of
league play.MLS will use proper sod cutting proposed renovation services with MLS's customary
equipment to remove damaged,wom or diseased charges for such services. In such situations, the City
sod and replace it with healthy 3'by t'lengths.
During the planting process,MLS will add all agrees to either accept MLS's proposal and pay MLS
necessary amendments(recipe to be mutually to renovate said softball fields or the City will bear
agreed upon between the appropriate City staff the responsibility for bringing said fields up to
member(s)and the DFM)to ensure proper industry standards for safety and playability.
mending and growth.
Periodic Repair Services are provided to ensure that
6) Measure the distances from home place,between
base anchors,and to the pitcher's plate(rubber)to all playing surfaces are kept available for use. It is
ensure that they fall within the specifications set mutually understood that the City has its own,
forth in the SCMAF and Major League Baseball seperate parks maintenance staff and/or parks
rule books.At this time,all base anchors, home maintenance program. The SBDMS is not a parks
plates and pitchers'plates will be thoroughly maintenance program and is not designed to alleviate
checked for excessive wear or defects;and a t
written status report may be submitted to the he City's park maintenance responsibilities.
appropriate city staff member(s).
Infield Treatment Program
7) Using a light meter,MLS will test the candle foot
power(lux)for each infield and outfield.In the
event that an existing candle foot reading does not After necessary Periodic Repair Services have been
comply with the State of California's minimum completed, each ball field will be ready for the
standard for ball field use,a written diagram opening day of the season. Beginning on opening day,
illustrating the location and quantity of each MLS's Field Maintenance staff will perform an
reading will be provided to the appropriate city Infield Treatment on each field scheduled for league
staff member(s). p}ay-
8) When necessary,the perimeter border edge(the
line where infield traction material meets outfield The Infield Treatment Program takes into account
turf)will receive special attention to eliminate any that specific locations (referred to as "high-impact
berm or ridge that develops from frequent use. areas") on each diamond endure heavy use and thus
NILS will dethatch, scalp and water blast the require special attention. High-impact areas such as
2
MAJOR LEAGUE SOFTBALL
batter's boxes, catcher's and umpire's places behind While the SBDMS is quite comprehensive, it does
home plate, the pitcher's mound, the base paths, and not include the following landscape and parks
the sliding areas around the base anchors will receive maintenance tasks: seeding, aeration, fertilization,
additional watering and scarifying on a daily basis, mowing, watering of outfield areas, irrigation system
and traction material will be added when needed. A repair, or infield mix replacement that becomes
Daily Infield Treatment consists of the following necessary due to weather or uses other than adult
steps that are performed on each day a field is softball. However, the MLS Field Maintenance
scheduled for league play: Division is capable of providing maintenance services
well beyond the scope of the Standard Ball Diamond
1) Large quantities of displaced material from Maintenance System. If such maintenance services
high-impact areas will be back-filled using the are desired, a separate contract concerning these
front scoop of a John Deere 1200 ball field maintenance services may be negotiated.
conditioner.
2) The entire traction area will be watered,with City Responsibilities
additional quantities applied to high-impact The City agrees to maintain in safe condition all park
areas. fixtures such as: poles, light fixtures, light bulbs,
3) As needed,the entire traction area will be scarified bleachers/seating apparatus, playground equipment,
usinga variety of depth settings,depending on the chainlink fencing (including but not limited to
existing condition of the field.MLS staff uses "dugout", "backstop", "out of play" and
scarifiers that come as standard attachments on "outfield/home run" fences), base anchors, home
John Deere 1200 ball field conditioners.The JD plates and pitcher's rubbers. MLS will not be held
dept scarifier is o inches wide and can Extra re responsible to defend or indemnify the City against
depths ranging from one to six inches. Extm care
will be exercised when scarifying next to any claims for personal injury, death or property
perimeter edges,base anchors,home plates, damage that in any way arise from or relate to (i) the
pitchers plates,backstops and chain link fencing. condition of said park fixtures, or (ii) the design
and/or construction of park facilities allocated by the
a) The JD 1200 grading/leveling attachment and a City for adult softball play, regardless of whether
"screen"drag will then be employed to evenly such claims involve program participants, program
distribute traction material over the entire traction
area surface of the infield leaving a smooth spectators or members of the general public.
surface.
The City agrees to defend and indemnify MLS
5) Finally,the field shall be lined as prescribed by the against all claims and liabilities arising out of or in
SCMAF or Major Leageue Baseball ndr
books. Usi rig a batter's box template and stri ng,
any way relating to (i) the condition of the aforesaid
MLS staff will set down the batter's boxes,foul park fixtures or , (ii) the design and/or construction of
lines, coaches-'boxes,first base running lane,and park facilities allocated by the City for adult softball
on-deck circles.Appropriate city staffmember(s) play, regardless of whether such claims involve
will be consulted,so that MLS will use only field program participants, program spectators or members _
mar m ma ena s a wive een a rove a _c.L
City's designated representative.
3