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HomeMy WebLinkAbout16- Parks & Recreation ORIGINAL CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Kevin Hawkins, Director Subject: Resolution authorizing the City Manager to execute a Facility Use Dept: Parks and Recreation Agreement by and between California State University, San Bernardino and the Date: December 7, 2009 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- vear renewals. M/CC Date: December 21, 2009 Synopsis of Previous Council Action: August 20, 2001 —Resolution No. 2001-263 authorized an Agreement between the City of San Bernardino and California State University, San Bernardino providing for the cooperative uses of the University's outdoor athletic facilities and the City's Fiscalini Field, and terminating the previous Agreement under Resolution No. 97-26. February 3, 1997—Resolution No. 1997-26 authorized an Agreement with California State University, San Bernardino, providing for the cooperative uses of the University's Athletic Facilities and the City's Fiscalini Field. Recommended Motion: Adopt Resolution. ! - Kevin H kips Contact person: Robert Lennox, Deputy Director Phone: 5233 Supporting data attached: Staff Report, Reso, Agreement Ward(s): 2 FUNDING REQUIREMENTS: Amount: $17,500 revenue from the University annually. Source: (Acct. No.) (To be determined) Acct. Description: _(To be determined) Finance: Council Notes: 0,:: `3 76 Agenda Item No. My Aep(atery #0 Pa�wS 2-21-01 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT Subject: Resolution of the Mayor and Common Council 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. Background: The City and California State University, San Bernardino have worked cooperatively since 1983 to effectively accommodate both the University's needs as well as those of the community at Fiscalini Field. The University has used Fiscalini Field as its home practice site for the men's baseball team in the past. More recently, the University moved their home games to the Arrowhead Credit Union Park in San Bernardino. Staff from the Parks, Recreation and Community Services Department has been engaged in discussions with California State University, San Bernardino in an effort to enhance this community partnership. This Use of Facilities Agreement will contractually make Fiscalini Field the official home field of Cal State Baseball in lieu of building an onsite facility at the campus. As a result, the Department will be able to stretch their limited resources, while promoting recreation/sports in our park. It is anticipated that this Agreement between the City and the University will also serve as a catalyst for activity and development along the Highland corridor. Pursuant to this Agreement, the University will pay the City $17,500 per year by January V of each year for the use of Fiscalini Field. The University will also provide the following services during the term of the Agreement: • Provide two (2) 1-day baseball clinics for San Bernardino youth through the Parks, Recreation and Community Services Department youth sports program. (Note: all students, employees and volunteers who will be supervising minors shall have submitted to and passed LiveScan background checks administered by the San Bernardino Police Department.) • Replace sideline/field fences (value - $12,000); • Provide basic user upkeep, i.e. dragging, chalking, watering and field preparation; and • Maintain all aspects of the interior and exterior of the Players' Clubhouse for the University's exclusive use. Staff and players of California State University, San Bernardino have been responsible users of the facilities at Fiscalini Field in the past, and their knowledge of field maintenance and use as a resource in this regard would be a welcomed asset to both Fiscalini Field and Perris Hill I Park. Financial Impact: The City will receive fees in the amount of$17,500 annually from the University for the use of Fiscalini Field. Recommendation: Adopt Resolution. 1 Q � 2 RESOLUTION NO. 3 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A 4 FACILITY USE AGREEMENT BY AND BETWEEN CALIFORNIA STATE UNIVERSITY, SAN BERNARDINO AND THE CITY OF SAN BERNARDINO 5 ALLOWING FOR THE UNIVERSITY'S USE OF FISCALINI FIELD FROM 6 DECEMBER 26, 2009 THROUGH DECEMBER 25, 2010, WITH THE OPTION OF THREE (3) ONE-YEAR RENEWALS. 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF 8 THE CITY OF SAN BERNARDINO AS FOLLOWS: 9 Section 1: That the City Manager is hereby authorized to execute on behalf of 10 11 said City the Facility Use Agreement with California State University, San Bernardino, 12 a copy of which is attached hereto, marked as Exhibit "A", and incorporated herein by 13 reference as fully as though set forth at length; and 14 Section 2: That the authorization to execute the above referenced Facility Use 15 Agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) 16 days of the passage of this resolution. 17 18 19 20 21 22 23 24 25 26 27 28 //i r 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL. OF THE CITY OF 3 SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A FACILITY USE AGREEMENT BY AND BETWEEN CALIFORNIA STATE 4 UNIVERSITY, SAN BERNARDINO AND THE CITY OF SAN BERNARDINO ALLOWING FOR THE UNIVERSIT'Y'S USE OF FISCALINI FIELD FROM 5 DECEMBER 26, 2009 THROUGH DECEMBER 25, 2010, WITH THE OPTION 6 OF THREE (3) ONE-YEAR RENEWALS. 7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the 8 Mayor and Common Council of the City of San Bernardino at a meeting 9 thereof, held on the day of , 2009, by the following vote, to wit: 10 Council Members: AYES NAYS ABSTAIN ABSENT 11 12 ESTRADA 13 BAXTER 14 BRINKER 15 SHORETT 16 KELLEY 17 18 JOHNSON 19 MCCAMMACK 20 21 Rachel Clark, City Clerk 22 The foregoing resolution is hereby approved this day of . 2009. 23 24 Patrick J. Morris, Mayor 25 City of San Bernardino Approved as to form: 26 27 James F. P man, City Attorney 28 ��' CITY OF SAN BERNARDINO Exhibit A CALIFORNIA STATE UNIVERSITY - SAN BERNARDINO USE OF FACILITIES AGREEMENT This Agreement, by and between California State University, San Bernardino ("UNIVERSITY") and the City of San Bernardino ("CITY"), provides for the UNIVERSITY's use of Fiscalini Field, owned by the CITY, in accordance with the following terms and conditions: I. GENERAL: UNIVERSITY shall have use of Fiscalini Field from December 26, 2009 through December 25, 2010 for practices and games (Schedule attached — Exhibit "A") and potential CCAA Tournament scheduled for May 6-18, 2010. II. TERM: The term of this agreement shall be for one (1) year commencing on December 26, 2009 and ending on December 25, 2010; with the option of three (3) one year renewals upon mutual consent of the parties. During the term of the Agreement, the UNIVERSITY is granted use of Fiscalini Field from December 26 through May 23. III. USE OF FISCALINI FIELD: A. CITY's Responsibilities: 1. Maintenance of Field: a) Routine/Recurring: provide weekly landscape maintenance of Fiscalini Field, including 1 inch height mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. b) Annual Renovation: complete irrigation system repair (automated and manual), grass scalping to '/2 inch previous to over seeding, complete turf aeration, install UNIVERSITY provided sand to "float" infield lightly, over seed and cover bare spots with seed topper materials provided by UNIVERSITY, remove lips from back of infield, apply new sod to necessary turf areas, rebuild pitcher's ''"k mound with UNIVERSITY provided sand, grade and spread Infield sand material provided by UNIVERSITY, repair and tie down outfield wind screens, cut back trees hanging over fences in outfield, in the initial year remove fences in preparation for UNIVERSITY replacement from dugout to aft yellow cap fence. 2. Use of Clubhouse: CITY will allow UNIVERSITY to use the clubhouse, which includes the manager office, training room, restrooms and showers during the scheduled use as described herein. 3. Use of Scoreboard and P.A. System: After training by City staff, CITY will allow UNIVERSITY personnel to operate and use the scoreboard and P.A. amplification equipment. a B. UNIVERSITY Responsibilities: 'j 1. Use of Facilities: UNIVERSITY will use Fiscalini Field for baseball 1 practices and games. 2. Joint Use of Facilities: UNIVERSITY will relinquish field use to designated CITY co-sponsored youth play three (3) weekends during UNIVERSITY use: January 16-18, February 13-14, April 3-4. During CITY designated use, daily play shall comply with the terms and conditions of the "Rules for Fiscalini Maintenance" in Exhibit "B". i 3. Maintenance of Field and Facilities: UNIVERSITY will keep the infield, outfield, dugouts; batters' cage, spectator stands and players' Clubhouse clean of trash throughout the duration of use. UNIVERSITY will comply with the CITY "Rules for Fiscalini Maintenance" in Exhibit "B". 4. Adherence to CITY Regulations: UNIVERSITY will insure that all players, coaches, and staff adhere to CITY regulations at all times. CITY reserves the right to close the field if requests for compliance with regulations are not met. 5. Use of Sign Panels on Outfield Fence: UNIVERSITY will use existing sign panels to solicit advertising in support of Men's Baseball Scholarships at UNIVERSITY. UNIVERSITY will solicit businesses in San Bernardino and Riverside Counties. UNIVERSITY will produce, install, and maintain signs as needed. UNIVERSITY will pay the CITY a fee of twenty five percent (25%) of the net profit received from advertising. Should a third party be contracted by UNIVERSITY to solicit the sponsorships, the twenty five percent (25%) will be taken from the UNIVERSITY percentage and not the market value of the sponsorship. IV. FEES & CSUSB Reciprocal Services: The UNIVERSITY agrees to pay CITY an annual rental payment of $17,500 for use of Fiscalini Field. The fee for use of Fiscalini Field facilities will be payable to the "City of San Bernardino" by the 1St of January 2010. In addition, UNIVERSITY will provide the following services during the term of this agreement: Provide two (2) single day baseball clinics for San Bernardino youth through the Parks, Recreation and Community Services Department youth sports program. All students, employees and volunteers who will be supervising minors shall have submitted to and passed LiveScan background checks administered by the San Bernardino Police Department. Replace sideline/field fences (value - $12,000) after approval of specified materials and design by CITY . Provide basic user upkeep, i.e. dragging, chalking, watering and field preparation before and after each use. Maintain all aspects of the interior and exterior of the Players' Clubhouse for the UNIVERSITY's exclusive use. V. EMPLOYMENT AND INDEPENDENT CONTRACTORS: The UNIVERSITY, at the UNIVERSITY's own expense, may employ or contract such persons, as the UNIVERSITY deems necessary to perform the services required of the UNIVERSITY by this agreement. The UNIVERSITY assumes full and sole responsibility for payment of all compensation and expenses of these employees or independent contractors for all state and federal income tax, Worker's Compensation unemployment insurance, Social Security, disability insurance, and other applicable withholdings. The UNIVERSITY agrees to provide worker's compensation insurance for their own employees, volunteers and agents and agrees to hold harmless and indemnify the CITY for any and all claims arising out of any injury, disability, or death of any of the UNIVERSITY's employees or agents. VI. DISCRIMINATION: CITY and UNIVERSITY mutually agree that the activities provided under this Agreement and all employment offered by CITY and UNIVERSITY under this Agreement shall be free of discrimination based upon race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. CITY and UNIVERSITY shall comply with the law and the policies and procedures of their respective agencies relative to affirmative action compliance in their employment practices. VII. LIABILITY: UNIVERSITY AND CITY AGREE AS FOLLOWS: CITY agrees to indemnify and hold harmless the State of California and UNIVERSITY, its employees, officers, agents and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from CITY'S negligent acts or omissions arising from the CITY'S performance of its obligations under the Agreement. UNIVERSITY agrees to indemnify and hold harmless CITY, its employees, officers, agents, and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from UNIVERSITY'S negligent acts or omissions arising from the UNIVERSITY'S performance of its obligations under the Agreement. In the event that CITY and/or UNIVERSITY is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, CITY and/or UNIVERSITY shall indemnify the other to the extent of this comparative fault. The costs, salary and expenses of the City Attorney and members of his office in enforcing this agreement shall be considered as costs for the purposes of this paragraph. CITY and UNIVERSITY do not hereby waive each as to the other any defenses or immunities each may have, either jointly or separately, under California Government Code Sections 810, et seq. and, by way of emphasis and not of limitation, with specific reference to California Government Code Sections 830, et seq. VIII. INSURANCE: While not restricting or limiting the foregoing, during the term of this Agreement, UNIVERSITY shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000, per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents as additionally insured. A certificate of insurance evidencing such coverage shall be provided to the City's Risk Manager or his designee, with the added notation that the insurance policy shall not be terminated or materially altered without thirty (30) days prior written notice to CITY. IX. TERMINATION: The CITY or the UNIVERSITY may terminate this Agreement by giving the other party thirty (30) days advance written notice of termination. Should the UNIVERSITY fail to faithfully perform all the terms and conditions of this Agreement, the CITY may summarily terminate this Agreement by giving fourteen (14) working days' written notice of termination to the UNIVERSITY. X. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees"for the purposes of this paragraph. XI. ASSIGNMENT. UNIVERSITY shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the UNIVERSITY's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release UNIVERSITY of UNIVERSITY's obligation to perform all other obligations to be performed by UNIVERSITY hereunder for the term of this Agreement. XII. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. XIII. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. XIV. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. XV. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. XVI. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. XVII. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a ` I I CITY OF SAN BERNARDINO CALIFORNIA STATE UNIVERSITY - SAN BERNARDINO USE OF FACILITIES AGREEMENT waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. XVIII. AMENDMENTS TO THE AGREEMENT: This Agreement may only be changed by written amendment signed by authorized officials of CITY and UNIVERSITY. No oral agreements shall be binding or of any effect on either party. XIX. It is not the intent of the Parties that any rights in third parties be created by the terms and conditions agreed to herein. California State University City of San Bernardino San Bernardino Parks, Recreation and Community 5500 University Parkway Services Department San Bernardino, CA 92407-2397 1350 South "E" Street San Bernardino, CA 92408 By By Charles McNeely, Procurement and Support Services Officer City Manager Date Date Approved as to form: James F. Penman, City Attorney By 12/15/09 CAL STATE-FISCALINI AGREEMENT CITY OF SAN BERNARDINO CALIFORNIA STATE UNIVERSITY - SAN BERNARDINO USE OF FACILITIES AGREEMENT This Agreement, by and between California State University, San Bernardino ("UNIVERSITY") and the City of San Bernardino ("CITY"), provides for the UNIVERSITY's use of Fiscalini Field, owned by the CITY, in accordance with the following terms and conditions: 1. GENERAL: UNIVERSITY shall have use of Fiscalini Field from December 26, 2009 through December 25, 2010 for practices and games (Schedule attached — Exhibit "A") and potential CCAA Tournament scheduled for May 6-18, 2010. II. TERM: The term of this agreement shall be for one (1) year commencing on December 26, 2009 and ending on December 25, 2010; with the option of three (3) one year renewals upon mutual consent of the parties. During the term of the Agreement, the UNIVERSITY is granted use of Fiscalini Field from December 26 through May 23. 111111. USE OF FISCALINI FIELD: A. CITY's Responsibilities: 1. Maintenance of Field: a) Routine/Recurring: provide weekly landscape maintenance of Fiscalini Field, including 1 inch height mowing and edging (once per week), apply seed and fertilizer, and repair damaged irrigation as needed. b) Annual Renovation: complete irrigation system repair (automated and manual), grass scalping to '/2 inch previous to over seeding, complete turf aeration, install UNIVERSITY provided sand to "float" infield lightly, over seed and cover bare spots with seed topper materials provided by UNIVERSITY, remove lips from back of infield, apply new sod to necessary turf areas, rebuild pitcher's mound with UNIVERSITY provided sand, grade and spread Infield i sand material provided by UNIVERSITY, repair and tie down outfield wind screens, cut back trees hanging over fences in outfield, in the initial year remove fences in preparation for UNIVERSITY replacement from dugout to 3ft yellow cap fence. 2. Use of Clubhouse: CITY will allow UNIVERSITY to use the clubhouse, which includes the manager office, training room, restrooms and showers during the scheduled use as described herein. 3. Use of Scoreboard and P.A. System: After training by City staff, CITY will allow UNIVERSITY personnel to operate and use the scoreboard and P.A. amplification equipment. B. UNIVERSITY Responsibilities: 1. Use of Facilities: UNIVERSITY will use Fiscalini Field for baseball practices and games. 2. Joint Use of Facilities: UNIVERSITY will relinquish field use to designated CITY co-sponsored youth play three (3) weekends during UNIVERSITY use: January 16-18, February 13-14, April 3-4. During CITY designated use, daily play shall comply with the terms and conditions of the "Rules for Fiscalini Maintenance" in Exhibit "B". 3. Maintenance of Field and Facilities: UNIVERSITY will keep the infield, outfield, dugouts; batters' cage, spectator stands and players' Clubhouse clean of trash throughout the duration of use. UNIVERSITY will comply with the CITY"Rules for Fiscalini Maintenance" in Exhibit "B". 4. Adherence to CITY Regulations: UNIVERSITY will insure that all players, coaches, and staff adhere to CITY regulations at all times. CITY reserves the right to close the field if requests for compliance with regulations are not met. 5. Use of Sign Panels on Outfield Fence: UNIVERSITY will use existing sign panels to solicit advertising in support of Men's Baseball Scholarships at UNIVERSITY. UNIVERSITY will solicit businesses in San Bernardino and Riverside Counties. UNIVERSITY will produce, install, and maintain signs as needed. UNIVERSITY will pay the CITY a fee of twenty five percent (25%) of the net profit received from advertising. Should a third party be contracted by UNIVERSITY to solicit the sponsorships, the twenty five percent (25%) will be taken from the UNIVERSITY percentage and not the market value of the sponsorship. IV. FEES & CSUSB Reciprocal Services: The UNIVERSITY agrees to pay CITY an annual rental payment of $17,500 for use of Fiscalini Field. The fee for use of Fiscalini Field facilities will be payable to the "City of San Bernardino" by the 1s` of January 2010. In addition, UNIVERSITY will provide the following services during the term of this agreement: Provide two (2) single day baseball clinics for San Bernardino youth through the Parks, Recreation and Community Services Department youth sports program. All students, employees and volunteers who will be supervising minors shall have submitted to and passed LiveScan background checks administered by the San Bernardino Police Department. Replace sideline/field fences (value - $12,000) after approval of specified materials and design by CITY . - Provide basic user upkeep, i.e. dragging, chalking, watering and field preparation before and after each use. Maintain all aspects of the interior and exterior of the Players' Clubhouse for the UNIVERSITY's exclusive use. V. EMPLOYMENT AND INDEPENDENT CONTRACTORS: The UNIVERSITY, at the UNIVERSITY's own expense, may employ or contract such persons, as the UNIVERSITY deems necessary to perform the services required of the UNIVERSITY by this agreement. The UNIVERSITY assumes full and sole responsibility for payment of all compensation and expenses of these employees or independent contractors for all state and federal income tax, Worker's Compensation unemployment insurance, Social Security, disability insurance, and other applicable withholdings. The UNIVERSITY agrees to provide worker's compensation insurance for their own employees, volunteers and agents and agrees to hold harmless and indemnify the CITY for any and all claims arising out of any injury, disability, or death of any of the UNIVERSITY's employees or agents. VI. DISCRIMINATION: CITY and UNIVERSITY mutually agree that the activities provided under this Agreement and all employment offered by CITY and UNIVERSITY under this Agreement shall be free of discrimination based upon race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. CITY and UNIVERSITY shall comply with the law and the policies and procedures of their respective agencies relative to affirmative action compliance in their employment practices. VII. LIABILITY: UNIVERSITY AND CITY AGREE AS FOLLOWS: CITY agrees to indemnify and hold harmless the State of California and UNIVERSITY, its employees, officers, agents and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from CITY'S negligent acts or omissions arising from the CITY'S performance of its obligations under the Agreement. UNIVERSITY agrees to indemnify and hold harmless CITY, its employees, officers, agents, and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from UNIVERSITY'S negligent acts or omissions arising from the UNIVERSITY'S performance of its obligations under the Agreement. In the event that CITY and/or UNIVERSITY is found to be comparatively at fault for any claim, action, loss, or damage which results from their respective obligations under the Agreement, CITY and/or UNIVERSITY shall indemnify the other to the extent of this comparative fault. The costs, salary and expenses of the City Attorney and members of his office in enforcing this agreement shall be considered as costs for the purposes of this paragraph. CITY and UNIVERSITY do not hereby waive each as to the other any defenses or immunities each may have, either jointly or separately, under California Government Code Sections 810, et seq. and, by way of emphasis and not of limitation, with specific reference to California Government Code Sections 830, et seq. • - i I VIII. INSURANCE: While not restricting or limiting the foregoing, during the term of this Agreement, UNIVERSITY shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of $1,000,000, per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents as additionally insured. A certificate of insurance evidencing such coverage shall be provided to the City's Risk Manager or his designee, with the added notation that the insurance policy shall not be terminated or materially altered without thirty (30) days prior written notice to CITY. IX. TERMINATION: The CITY or the UNIVERSITY may terminate this Agreement by giving the other party thirty (30) days advance written notice of termination. Should the UNIVERSITY fail to faithfully perform all the terms and conditions of this Agreement, the CITY may summarily terminate this Agreement by giving fourteen (14) working days' written notice of termination to the UNIVERSITY. X. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The costs, salary and expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' fees"for the purposes of this paragraph. XI. ASSIGNMENT. UNIVERSITY shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the UNIVERSITY's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release UNIVERSITY of UNIVERSITY's obligation to perform all other obligations to be performed by UNIVERSITY hereunder for the term of this Agreement. XII. VENUE. The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. XIII. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. XIV. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. XV. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. XVI. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. XVII. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a CITY OF SAN BERNARDINO CALIFORNIA STATE UNIVERSITY - SAN BERNARDINO USE OF FACILITIES AGREEMENT ik waiver of future breaches, unless such waiver shall be in writing and signed by the party E against whom enforcement is sought. XVI11. AMENDMENTS TO THE AGREEMENT: This Agreement may only be changed by written amendment signed by authorized officials of CITY and UNIVERSITY. No oral agreements shall be binding or of any effect on either party. XIX. It is not the intent of the Parties that any rights in third parties be created by the terms and conditions agreed to herein. California State University City of San Bernardino San Bernardino Parks, Recreation and Community 5500 University Parkway Services Department San Bernardino, CA 92407-2397 1350 South "E" Street San Bernardino, CA 92408 By By Charles McNeely, Procurement and Support Services Officer City Manager Date Date Approved as to form: James F. P man, City Attorney By 12/15/ CAL STATE-FISCALINI AGREEMENT EXHIBIT A CAL STATE SAN BERNARDINO 2010 CCAA BASEBALL SCHEDULE DATE OPPONENT TIME Feb. 12 @ CS Monterey Bay 2 p.m. Feb. 13 @ CS Monterey Bay (2) 11 a.m. Feb. 14 @ CS Monterey Bay 11 a.m. Feb. 19 SONOMA STATE 2 P.M. Feb. 20 SONOMA STATE (2) 11 A.M Feb. 21 SONOMA STATE 11 A.M. Feb. 26 CAL STATE L.A. 2 P.M. Feb. 27 CAL STATE L.A. 2 P.M. Feb. 28 @ Cal State L.A. (2) 11 a.m. Mar. 5 @ Cal State Stanislaus 2 p.m. Mar. 6 @ Cal State Stanislaus (2) 11 a.m. Mar. 7 @ Cal State Stanislaus 11 a.m. Mar. 12 CHICO STATE 2 P.M. Mar. 13 CHICO STATE (2) 11 A.M. Mar. 14 CHICO STATE 11 A.M. Mar. 19 @ CS Dominguez Hills 2 p.m. Mar. 20 @ CS Dominguez Hills 2 p.m. Mar. 21 CS DOMINGUEZ HILLS (2) 11 A.M. Mar. 26-28 BYE WEEK Apr. 1 UC SAN DIEGO 2 P.M. Apr. 2 UC SAN DIEGO 2 P.M. Apr. 3 @ UC San Diego (2) 11 a.m. Apr. 9 CAL POLY POMONA 2 P.M. Apr. 10 CAL POLY POMONA 2 P.M. Apr. 1 I @ Cal Poly Pomona (2) 11 a.m. Apr. 16 SAN FRAN. STATE 2 P.M. Apr. 17 SAN FRAN STATE (2) 11 A.M. Apr. 18 SAN FRAN STATE 11 A.M. Apr. 23 @ Cal State East Bay 2 p.m. Apr. 24 @ Cal State East Bay (2) 11 a.m. Apr. 25 @ Cal State East Bay 11 a.m. Apr 30-May 2—BYE WEEK May 6-8 CCAA TOURNAMENT TBA Home games in bold face caps. EXHIBIT B Rules for Fiscalini Maintenance Unless others wise stated below, all terms and conditions of maintenance and use set forth below are to be followed by USERS authorized by the CITY to utilize and/or maintain Fiscalini Field. 1) No more than two games a day and 5 per week unless prior authorization has been secured by CITY management. 2) The field shall have 3 days a week of no competition play 3) Field shall be mowed a minimum of once per week by a qualified CITY maintenance staff with a mower designed for athletic field mowing at a height that is associated with good athletic field maintenance—1 inch suggested. 4) Each user shall furnish their own equipment (rake, drag, tamp, hose coupler, broom, small utility vehicle). 5) The field and bull-pens shall be repaired immediately after every use by the user. 6) The cut outs, baselines, and home plate areas must be raked and NOT dragged. 7) Maintenance vehicles must remain on the outfield warning track only. 8) No maintenance vehicles in the infield, except for a light weight vehicle to "drag" with. 9) No vehicles may be driven in front of the dugouts, across the plate, or in the baselines. 10)When dragging the infield the drag should remain one foot from the edge of the grass. 11) Mound should be repaired and tarped after every use. 12) All dugout trash should be picked-up and dugouts should be swept after each use. 13) No materials should be added to the field without CITY management and/or Maintenance Division Manager approval (ie drying agents, field conditioners etc.). 14) All users shall have a designated maintenance worker to receive training from the CITY approved athletic field maintenance personnel. 15)Any destruction, vandalism, theft shall be reported immediately to the CITY and fixed by the user immediately. 16)Any general "wear and tear" irrigation issues should be reported to the CITY immediately for prompt repair. Irrigation damage resulting from USER neglect shall be reported to the CITY immediately and repaired by the USER within 24 hours. 17) All users shall provide a detailed use schedule to the CITY for approval prior to use. 18) All USERS will be required to refrain from field use during scheduled annual field maintenance and renovation. 19) National tournaments of any USER can exceed the number of games limitations with CITY approval, however tournaments must have national sports tourism benefit and implications.