HomeMy WebLinkAboutS3- Parks, Recreation & Community Services CITY OF SAN BERN ' RDINO - REQUEST FnR COUNCIL ACTION
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From: ANNIE F. RAMOS, DIRECTOR Subject: RESOLUTION AUTHORIZING THE' EXECUTION
OF AN AGREEMENT WITH ELMORE SPORTS
Dept: PARKS, RECREATION & COMMUNITY SERVICES GROUP, LTD. RELATING TO THE USE OF
FISCALINI FIELD.
Date: FEBRUARY 1, 1994
Synopsis of Previous Council action:
December 7, 1992 - Council adopted Resolution 92-463 establishing a lease
agreement for use of Fiscalini Field with Don Nomura.
January 20, 1993 - Council adopted Resolution 93-10 approving the assignment of
the lease for Fiscalini Field from Don Nomura to Elmore
Sports Group, Ltd.
Recommended motion:
Adopt the Resolution.
(�
Signature
Contact person: John Kramer Phone: 5031
Supporting data attached:Staff Report, Resolution & Agreement Ward: N/A
FUNDING REQUIREMENTS: Amount:
Source: (Acct No.)
(Acct Description)
Finance:
Council Notes:
Agenda Item No.
75-0262
,w -1W —
CITY OF SAN BERN,A 'RDINO - REQUEST Ff%R COUNCIL ACTION
STAFF REPORT
RESOLUTION AUTHORIZING THE
EXECUTION OF AN AGREEMENT
WITH ELMORE SPORTS GROUP LTD. ,
RELATING TO THE USE OF
'ISCALINI FIELD.
The proposed lease agreement between the City and Elmore
Sports Group Ltd. , allows for the extended use of Fiscalini
Field for the Spirit Baseball Team for the 1994 baseball
season expiring on September 15, 1994 . The agreement includes
essentially the same conditions as the previous agreement.
After holding several meetings with the team's owners, the
City's Spirit Negotiations Committee, comprised of Council
Members Norine Miller and Dr. Frederick Curlin, Ray Salvador,
Phil Arvizo, John Kramer and Henry Empeno, unanimously
recommends that the Mayor and Council approve this proposed
lease agreement. Attached to this staff report is a summary
of the City's operating costs for Fiscalini Field. The 1994
baseball season operating costs for the City are projected to
be about $42 , 453 .
This proposed lease agreement for 1994 requires the lessee to
pay the City rent comprising of a $20, 000 base payment plus 4%
of the gross receipts. The lessee expects their 1994 gross
receipts to be in excess of $750, 000, which would yield the
City a total lease payment of $50, 000. Even at $600, 000 in
gross receipts, the City will receive $44 , 000 in total lease
payments, an amount which should exceed the City's operating
costs.
We recommend that the Mayor and Council adopt the resolution.
JUSTIFICATION FOR SUPPLEMENTAL AGENDA
Agreement needs to be discussed and acted upon in order to
allow ample time for Spirit owners to implement arrangements
for club house trailers.
Elmore-field-u
2/1/94
75-0264
1 RESOLUTION NO.�_
2
RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING
3 THE EXECUTION OF AN AGREEMENT WITH ELMORE SPORTS GROUP LTD. ,
RELATING TO THE USE OF FISCALINI FIELD.
4
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
5 CITY OF SAN BERNARDINO AS FOLLOWS:
6 SECTION 1. The Mayor is hereby authorized and directed
7 to execute on behalf of said City an Agreement with Elmore
8 Sports Group LTD. , relating to the use of Fiscalini Field, a
9 copy of said agreement is attached hereto, marked Exhibit "A"
10 and incorporated herein by reference as fully as though set
11 forth at length.
12 SECTION 2 . The authorization to execute the above
13 referenced agreement is rescinded if the parties to the
14 agreement fail to execute it- within sixty (60) days of the
15 passage of this resolution.
16
I HEREBY CERTIFY that the foregoing resolution was duly
17
adopted by the Mayor and Common Council of the City of San
18
Bernardino at a meeting thereof, held on the
19
day of 1994 , by the following vote, to wit:
20
21
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23
24
25 JFK:jj Resolution No.
26 January 31, 1994
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1
RESOLUTION RE: AUTHORIZING EXECUTION OF AN AGREEMENT
2 WITH ELMORE SPORTS GROUP LTD. , RELATING TO THE USE OF
FISCALINI FIELD.
3
4 COUNCIL MEMBERS AYES NAYS ABSTAIN ABSENT
5 NEGRETE
6 CURLIN
7 HERNANDEZ
8 OBERHELMAN
9 DEVLIN
10 POPE-LUDLAM
11 MILLER
12
13
RACHEL CLARK, CITY CLERK
14
15 The foregoing is hereby approved this day of
16 1994 .
17
18 TOM MINOR, MAYOR
City of San Bernardino
19
20 Approved as to form
and legal content:
21
James F. Penman
22 City�Attorney
23 By: r
24
25
JK: j j
26 January 31, 1994
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1 A G R E E M E N T
2 THIS AGREEMENT is executed at San Bernardino, California,
3 this day of , 1994, by and
4 between the CITY OF SAN BERNARDINO, a Charter City
5 (hereinafter " City") , and ELMORE SPORTS GROUP LTD. (hereinafter
6 "Lessee") .
7 N I T N E S S E T H:
8 WHEREAS, the City Council of the City of San Bernardino
9 has the authority to enter into a Lease Agreement regarding
10 all or any portion of City-owned property devoted to park,
11 amusement or recreation purposes; and,
12 WHEREAS, Lessee has acquired a franchise to operate a
13 Professional baseball team as a member of the California
14 League; and,
15 WHEREAS, it is the intention and desire of the parties
16 hereto to enter into a Lease Agreement regarding the use of
17 Fiscalini Field, being a portion of the public park and
18 recreation area owned by the City of San Bernardino, for the
19 purpose of conducting and carrying on a professional baseball
20 franchise thereon and the operation of concession stand
21 activities; and,
22 WHEREAS, CITY desires to contract with Lessee for Lessee
23 to operate the facility in accordance with the provisions
24 hereinafter contained and, the Lessee desires to contract with
25 the City for the privileges granted under said Lease as
26 hereinafter contained:
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1 NOW, THEREFORE, IT IS MUTUALLY AGREED as follows:
2 1. Premises. City, for and in consideration of the
3 covenants, conditions, agreements and stipulations herein set
4 forth, does hereby grant Lessee the right to utilize Fiscalini
5 Field, as shown on Exhibit "A" attached hereto and by this
6 reference made a part hereof, hereinafter referred to as
7 "facility" .
8 2 . Lease Granted. This Agreement is made for the
9 purpose of granting Lessee the nonexclusive use of the
10 facility. No professional or semiprofessional baseball team
11 shall be permitted to conduct games at facility during the
12 term of this Lease except with the express written consent of
13 Lessee. Lessee is also entitled hereunder to sufficient space
14 for the operation of a business office, said office to be
15 Provided by City.
16 3 . Term of Lease. The aforementioned lease shall
17 commence on March 1, 1994 , and terminate on September 15,
18 1994 .
19 4 . Use of Facility by Lessee for Non-Baseball Related
20 Activities.
21 (a) City agrees that the facility shall be made
22 available to Lessee not to exceed 15 days during the term of
23 this agreement for non-baseball related activities. The
24 schedule, events and sale of alcohol at such events shall be
25 subject to the approval of the Director of Parks, Recreation
26 and Community Services Department. Approval shall not be
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1 withheld unreasonably. Request for such an approval shall
2 be made thirty days in advance of any such activity.
3 (b) Notwithstanding any other terms of this agreement,
4 Lessee shall bear all costs of the non-baseball activities in
5 the manner as set forth in Section 26 paragraphs a and c and
6 Section 28 of agreement. Said costs shall include the cost of
7 utilities for the event.
8 (c) In addition to any other sums set forth herein,
9 Lessee shall pay to the City 5% of the gross receipts received
10 by Lessee for each such non-baseball activity.
11 5. Payment by Lessee to City.
12 (a) Guaranteed Minimum Annual Fee. Lessee agrees to
13 pay to the City as fees for the lease herein granted for the
14 use of Fiscalini Field a minimum annual fee of $20, 000 for the
15 use of the facility.
16 (1) Payment. All payments required hereunder are
17 due and owing as of April 1, 1994 . Said payment shall be
18 made in equal monthly installments for six months
19 beginning on April 1, 1994 . Failure by Lessee to make
20 monthly payments in the amount of and at the times
21 hereinabove specified shall constitute a material breach
22 of this agreement.
23 (b) Percentage of Gross Receipts.
24 (1) In addition to any other sums set forth herein,
25 Lessee shall pay to City the following:
26 Four percent of any amounts of receipts received by
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1 Lessee from any use permitted by this agreement, except
2 for non-baseball related use.
3 (2) For the purpose of this agreement, the term
4 "gross receipts" shall mean all money received by or
5 paid to the Lessee, limited to facility use charges
6 (admission fee, etc. ) , group user fees, refreshment
7 concession,souvenir concession and advertising revenues.
8 For purposes of this agreement, "gross receipts" does not
9 include other things of value which may be received by
10 Lessee. Reference is hereby specifically made to "trade
11 outs" as being excluded from the definition of "gross
12 receipts" . "Trade-outs" is defined as the provision of
13 "in-kind" goods and services.
14 Each transaction on" credit or installment shall be
15 treated as a transaction for the full price in the
16 calendar year in which the sale is made, unless the payor
17 has or is under bankruptcy or has disappeared and there
18 are no means of receiving such payments. The lessee
19 shall record such as loss of income. In the event that
20 any amount settles for less than the actual receivable it
21 shall be accounted for as the actual receipts.
22 Any reference in this paragraph to sublessees,
23 concessionaires, or licensees of Lessee shall not be
24 deemed to be an authorization for any subletting or
25 granting of concessions or licenses by Lessee with
26 respect to the premises.
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1 (c) Payment of Percentage of Gross Receipts.
2 (1) Lessee shall notify City in writing within thirty
3 (30) days of date of the last game of Lessees season as
4 to the extent of gross receipts from the uses permitted
5 under this agreement. On that date Lessee shall pay to
6 City such sums as have accrued to City from such gross
7 receipts as per this agreement.
8 (d) Charges on Past-Due Payments - Liquidated Damages.
9 (1) If Lessee fails to make the payments set forth
10 hereinabove by the due dates set out herein, Lessee shall
11 pay a charge on such past-due amounts at a rate of 20%
12 per annum of the amount due.
13 This provision shall not be deemed as a forbearance on the
14 payments of such amounts, and City retains any and all
15 remedies for nonpayment of such amounts.
16 This provision is an estimate of the anticipated damage to be
17 suffered by City for non payment of such amounts and it is not
18 to be construed as a penalty. It is hereby agreed that it
19 would be difficult or impossible to determine the precise
20 amount of such damages to the City in the occurrence of a
21 breach of the covenant to make timely payments.
22 6. Ouality of Operations. The Lessee shall, at all times,
23 operate the facilities in a good businesslike manner and
24 incident thereto render to the public using said facilities,
25 efficient and courteous service. In the event that the
26 Director of Parks, Recreation and Community Services
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1 (hereinafter "Director") reasonably finds that service
2 rendered by the Lessee is substandard or that any other
3 provisions of the lease herein given are not being adequately
4 performed or complied with, the Lessee upon being advised of
5 the nonperformance or noncompliance shall correct any such
6 violation, deficiency or omission within 5 calendar days of
7 such notice. Where such notice is as to a matter respecting
8 health and safety, corrections shall be made within 24 hours.
9 City hereby represents that the facility is in full compliance
10 with all health and safety codes prior and during the term of
11 the lease.
12 7 . Employees. Any and all personnel, including employees,
13 agents and representatives of Lessee, in conducting the
14 operations of facility, shall not have been convicted of a
15 crime of moral turpitude.
16 Said personnel shall be neatly attired and shall conduct
17 themselves at all times in a courteous and businesslike
18 manner. All personnel at the facility shall be covered under
19 the Workers' Compensation Act of the State of California.
20 Lessee shall require that any employee, agent or licensee of
21 any independent contractor of Lessee performing work at the
22 facility be covered by the Workers' Compensation Act of the
23 State of California.
24 8. Nondiscrimination by Lessee. Lessee and City shall not
25 in the performance of service under this agreement
26 discriminate against any employee or applicant for employment
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1 because of sex, race, color, creed, national origin, or
2 handicap and shall not discriminate in the providing of
3 service hereunder against any person on the basis of sex,
4 race, color, creed, national origin, or handicap.
5 9. Lessee Rights and Status.
6 (a) . The rights herein given to the Lessee is a lease subject
7 to the terms and conditions set forth herein.
8 (b) . In addition, the Lessee, his agents, contractors, and
9 employees shall be at all times independent contractors and
10 shall not be considered agents or employees of the City.
11 10. Assignment Prohibited. The rights and privileges given
12 to the Lessee are not assignable in whole or in part or by
13 operation of law and any such attempted assignment shall be
14 invalid and of no legal force or effect. This provision may
15 be waived only with the express written consent of the Mayor
16 and Common Council of the City of San Bernardino.
17 11. Subleases, Concessions, Licenses, Contracts. The
18 provisions of Section 10 shall not prohibit Lessee from
19 entering into concessions, licenses or contracts for the
20 operation of any portion of the business conducted on the
21 premises. Each concession, license or contract that is
22 entered into by Lessee shall be subject to the provisions of
23 this agreement including payment of the same percentage of
24 gross receipts to the City as set forth herein for the Lessee.
25 A copy of any concession license or contract shall be placed
26 on file with Director.
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1 12 . Advertising. Lessee shall have the right to sell,
2 display and maintain advertising on the inside of the
3 outfield fence of the facilities, a scoreboard, and on
4 signs which may be attached by Lessee to the back of the
5 bleachers on the premises or wherever reasonably
6 acceptable by the City. The message board located on
7 the north side of facility is not part of and subject to
8 this agreement, but the parties may enter into a
9 seperate agreement relative to such message board as
10 alternate sign.
11 13 . Access to Premises.
12 (a) Lessee shall have full and unimpaired access to
13 field facilities at all times during the terms of this
14 agreement. Additionally, Lessee shall enjoy access to
15 maintain and access an office on the premises effective
16 the date of signing of this agreement and extending to 30
17 days beyond the termination of this agreement. Use of
18 the office may be extended beyond the 30 days provided
19 City and Lessee are in good faith negotiations for
20 continued use of facility by standard use agreement for
21 an additional 60 days.
22 (b) During the above times, City and its authorized
23 representatives shall have the right to enter the
24 facilities at all reasonable times for any of the
25 following purposes:
26 (1) To determine whether the premises are in good
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1 condition and whether Lessee is complying with its
2 obligations under this lease. City shall exercise
3 reasonable discretion as to the time and manner of making
4 said determination.
5 (2) To do any necessary acts, consistent with the
6 provisions of this agreement, including maintenance, and
7 any restoration to the facilities that City has the right
8 or obligation to perform.
9 (3) To authorize, permit or conduct special events
10 including but not limited to Dodger Baseball Clinic,
11 C. I.F. High School Playoffs, California State University
12 "Coyotes" Baseball team, et cetera.
13 14 . Community Uses.
14 (a) Lessee shall have the right of approval of all
15 contracts, licenses or permits entered into by the
16 Director for the use of the facilities, between March 1
17 and September 15, 1994 at reasonable times, by community
18 groups. Lessee shall use its best good-faith efforts to
19 satisfy the needs of the general public for the use of
20 the facility by agreeing to permits for available dates
21 and times for the special events provided in paragraph 13
22 (b) (3) and other public uses.
23 (b) During the term of agreement Lessee shall have the
24 right of first refusal as to the operation of all
25 concessions during any and all events in facility.
26 Director shall notify Lessee of any planned community
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1 event at least 60 days prior to date of such event.
2 Lessee shall thereafter have 30 days in which to notify
3 Director in writing, of its intent to refuse the
4 operation of concessions for that event.
5 City shall be entitled to 5% of the gross receipts from
6 all concessions conducted pursuant to this provision.
7 15. Nuisances Prohibited.
8 (a) Lessee shall not use the premises, any part
9 thereof, or permit them to be used for any purposes other
10 than as specified herein. Lessee shall not do or permit any
11 act or thing to be done upon the premises which constitutes
12 a nuisance or which may unreasonably disturb the quiet
13 enjoyment of City or any resident of City on adjacent or
14 neighboring property.
15 (b) Lessee shall at its own expense attach and
16 maintain a governor on the controls of its sound system.
17 Said governor shall be at all times maintained at a level
18 mutually agreed upon by Lessee and City.
19 (c) Lessee further agrees, that within 24 hours of
20 receipt of a written notice from the City that a nuisance
21 exists, to abate or otherwise cause said nuisance to be
22 remedied to the degree of its responsibility for said
23 nuisance. In the event Lessee has not (a) taken corrective
24 action within 24 hours, then City may enter and abate said
25 nuisance at the expense of the Lessee without any liability
26 whatsoever to City for monetary loss or anticipated profits of
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1 Lessee or others. An appeal to the Mayor and Common Council
2 must be made in writing and be received by the City Clerk, San
3 Bernardino, California, within 24 hours after Lessee received
4 notice of said nuisance. This section shall not be construed
5 so as to prohibit immediate enforcement by police or other
6 authorized City official, of any municipal code, ordinance or
7 other applicable law.
8 16. Parking Lot Rates. Lessee shall not charge for use
9 of the facility parking lot except by specific resolution of
10 the Mayor and Common Council of the City of San Bernardino.
11 17 . Indemnification and Hold Harmless. The Lessee
12 shall and hereby agrees to defend, indemnify, save and hold
13 harmless the City, its agents, officers, employees,
14 contractors and invitees from any and all losses or damage
15 and from any and all liability, suits, actions or claims
16 brought or made by any person or persons, arising or resulting
17 from any and all activities and operations of Lessee, Lessee's
18 agent, employees, contractors or invitees and for injury or
19 damage to persons or property about or within said facilities
20 while Lessee, Lessees agents, employees, contractors or
21 invitees are occupying said facilities for any reason or in
22 any fashion including such loss or damage is the proximate
23 result of the negligence of lessor's agents, employees or
24 contractors. City agrees to procure insurance from community
25 users of facility that lists Lessee as additionally insured.
26 18. Liability Insurance Coverage.
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1 (a) . The Lessee, at Lessee's own cost and expense,
2 shall maintain throughout the term of this agreement:
3 (1) A policy or policies of Comprehensive Liability
4 Insurance with a minimum limit of liability of ONE MILLION
5 DOLLARS ($1, 000, 000) Combined Single Limit for bodily injury
6 and property damage with an aggregate minimum limitation
7 liability of FIVE MILLION DOLLARS ($5, 000, 000) and including
8 the following coverages:
9 (i) Premises Operations Including Alterations (for
10 sports events and stadiums) . The only
11 exclusion which the City shall accept to this
12 coverage is that which excludes bodily injury
13 to athletic participants only and which in no
14 way excludes spectators.
15 This coverage shall also provide coverage for
16 the continual use of office space at the
17 premises.
18 (ii) Broad Form Contractual Liability.
19 (iii) Broad Form Property Damage.
20 (iv) Products Liability (for the sale of souvenirs,
21 athletic equipment and for the sale of food and
22 drink) .
23 (v) Personal Injury and Coverages i, ii, and iii
24 listed above.
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26 (vi) In the event Lessee engages or subcontracts any
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1 advertising or broadcasting, then a policy of
2 advertising and broadcasters liability
3 insurance shall be provided either by
4 lessee or by said subcontractor with minimum
5 limits of $1, 000, 000.
6 (vii) Open Air Parking (for which a charge is made) .
7 (viii) Liquor Legal Liability with a minimum limit of
8 $1, 000, 000.
9 (ix) Fire Legal Liability with a minimum limit of
10 $1, 000, 000.
11 (x) Vendors' Coverage (provided on an "if any"
12 basis as commonly used in the insurance
13 industry; that is, if there is any exposure to
14 the risk during the policy period) .
15 (2) A policy or policies of Comprehensive Vehicular
16 Liability insurance with a minimum limit of liability of
17 One Million Dollars ($1, 000, 000) Combined Single Limit
18 for bodily injury and property damage with an aggregate
19 minimum limit of liability of five million dollars
20 ($5, 000, 000) and which includes coverage for non-owned
21 and hired vehicles and which provides Uninsured Motorist
22 coverage according to minimum state requirements. In the
23 event Lessee acquires owned or leased vehicles, then
24 Lessee shall immediately obtain equivalent coverage for
25 such vehicles.
26 (b) Each policy providing coverage as required
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1 by subparagraph (a) above, must have endorsements
2 providing:
3 (1) That the City of San Bernardino, its officers,
4 agents, employees, contractors and invitees are
5 additional insureds as respects the use of the
6 facilities.
7 (2) That the insurance provided by the policy
8 shall be primary insurance as respects any other valid
9 and collectible insurance the City of San Bernardino may
10 possess and that any other insurance the City does
11 possess will be considered excess only.
12 (3) That the policy will act to cover each insured
13 and each additional insured as though a separate policy
14 were written for each.
15 (4) That no less than thirty (30) days written
16 notice will be given to the City Administrator or his or
17 her designee, City of San Bernardino, 300 North "D"
18 Street, San Bernardino, California 92418, before
19 cancellation or reduction in coverage for any reason.
20 (c) If the Lessee engages another party to provide the
21 operation of refreshment, souvenir and/or other
22 concessions, as permitted hereinabove, the Lessee shall
23 also cause that party or parties so engaged, at said
24 party's or parties' own cost and expense, to obtain and
25 to keep in force throughout the term of this agreement,
26 a policy or policies of public liability insurance
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I (including products liability coverage) separately
2 providing limits and coverage as aforesaid arising
3 out of each such concessionaire's operations. Before any
4 person other than Lessee operates any refreshment,
5 souvenir or other concession, Lessee shall notify City of
6 the name and business addresses of such concessionaire,
7 and obtain and file with City such concessionaire's
8 policy and/or certificates as are herein specified.
9 19. Workers' Compensation Insurance Coverage.
10 (a) The Lessee, at Lessee's sole cost and expense,
11 shall provide, pay for and maintain throughout the term
12 of its lease, a policy providing workers compensation
13 insurance coverage with the statutory limits of liability
14 as set forth by the laws of the State of California, and
15 including not less than $500, 000, Employer's Liability,
16 applicable to employees, agents and volunteers of Lessee,
17 sub-lessees or assignees.
18 (b) The policy shall be endorsed to waive the right of
19 subrogation against the City. The policy also shall be
20 endorsed to provide that not less than thirty (30) days'
21 written notice shall be given to the City Administrator
22 or his or her designee, City of San Bernardino, 300 North
23 "D" Street, San Bernardino, California 92418, before
24 cancellation or reduction in coverage of any nature or
25 for any reason.
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1 20. Evidence of Coverage.
2 (a) Except as otherwise provided herein, each
3 policy obtained by the Lessee to comply with the
4 provisions of this agreement must have an effective date
5 no later than the commencing date of this agreement and
6 the named insured on each policy must be identical to
7 the Lessee in this agreement. The Lessee agrees to
8 furnish evidence, acceptable to the City, that the
9 insurance requirements of this agreement have been
10 fulfilled. Such evidence is to be placed on file by the
11 Lessee with the City Administrator or his or her
12 designee, City of San Bernardino, 300 North "D" Street,
13 San Bernardino, California 92418 .
14 (b) No occupancy or use of City's property or
15 facilities shall be made by the Lessee, Lessee's agents,
16 contractors employees or invitees, under the provisions
17 of this agreement until evidence acceptable to City
18 Administrator or his or her designee that the aforesaid
19 insurance requirements have been fulfilled has been
20 received by the City Administrator or his or her
21 designee. Each policy, binder or certificate of
22 insurance, is subject to the reasonable approval of City
23 Administrator or his or her designee as to content, form
24 and issuing company. Should any of the insurance
25 requirements set forth in this agreement not be fulfilled
26 by the Lessee in a manner reasonably acceptable to City
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1 Administrator or his or her designee as provided in this
2 agreement, said City Administrator may purchase any or
3 all of the insurance required to correct such
4 deficiencies and the Lessee and Individuals agree that
5 the premium incurred therefor shall constitute an additional
6 fee to be paid by the Lessee to the City upon demand.
7 (c) On or before March 15, 1994, a certified, true
8 and correct copy of each policy providing all or part of the
9 liability insurance coverage required by Paragraph 18 above,
10 together with all required endorsements, and a certificate of
11 insurance together with the required endorsement for the
12 workers' compensation coverage required by Paragraph 19 above,
13 must be received directly from the issuing company by the City
14 Administrator or his or her designee.
15 (d) During the first thirty (30) days coverage of any
16 policy obtained by the Lessee to fulfill requirements of this
17 agreement, evidence may be in the form of an insurance binder;
18 provided that any such binder must include language to fulfill
19 the requirements, including endorsement requirements, in
20 addition to the normally accepted items in a binder, such as,
21 but not limited to: coverage, limits of liability, date
22 coverage was effective, expiration date of binder, name of
23 insuring company and signature of authorized company
24 representative.
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1 21. City Not a Bailee. It is further hereby understood and
2 agreed that the City in no way purports to be a bailee and is
3 in no way responsible for lost, stolen or damaged property of
4 Lessee, its agents, employees, concessionaires or invitees.
5 22 . Possessory Interest Tax. Lessee hereby acknowledges and
6 understands that this agreement may create a possessory
7 interest subject to property taxation pursuant to California
8 Revenue and Taxation Code Section 107, and that Lessee may be
9 subject to payment of property taxes levied on such interest,
10 and that such tax payment shall not reduce any monies due the
11 City hereunder and any such tax shall be the liability of and
12 be paid by the Lessee.
13 23 . Compliance With Orders, Ordinances and Laws. The Lessee
14 shall at all times and continuously operate in full compliance
15 with all Federal, State and local laws, statutes and
16 ordinances; all orders of the Health Officer of the County of
17 San Bernardino; all directives of the Director; and shall
18 grant access for inspection purposes to any authorized
19 representative of the State Board of Health or the County's
20 Health Officer, or any authorized representative of the
21 Director.
22 24 . Liens and Encumbrances. Lessee shall keep the premises
23 and all structures and improvements situated thereon free from
24 any liens or encumbrances arising out of any work performed,
25 material furnished, or obligations incurred by Lessee, or from
26 any other cause.
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1 25. Scoreboard. City and Lessee agree to work jointly to procure
2 a sponsor for the scoreboard and message center. If no
3 sponsor is found City and Lessee agree to share equally the
4 cost to retain the scoreboard/message center for the duration
5 of this agreement. This cost is estimated at $10, 000 ($5, 000
6 to City and $5, 000 to lessee) .
7 26. Staffing and Cleanup.
8 (a) Lessee shall provide all event personnel, including,
9 without limitation, ticket sellers, ticket takers, ushers,
10 clubhouse matrons, clubhouse janitors, medical persons,
11 switchboard, sound and scoreboard persons, and other
12 supervisory personnel, and all other personnel reasonably
13 necessary for the operation of the premises for the events
14 held therein. Lessee shall also provide attendant care during
15 the game including but not limited to restroom clean-up,
16 garbage, trash and litter clean-up of facility. Lessee shall
17 be responsible for stadium clean up to include pick-up and
18 removal of all litter and debris from stadium, parking lot and
19 adjoining areas. Clean up shall be provided, at a minimum,
20 after each home game and prior to the commencement of each
21 home game and prior to and after any event otherwise held at
22 the facility pursuant to this agreement. Clean up shall
23 include washing down the bleachers as necessary. City agrees
24 to furnish and maintain equipment listed on Exhibit "B" for
25 the purpose of accomplishing stadium cleaning. It is
26 understanding that all equipment is and will remain property
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1 of the City. City agrees to furnish a staff person to train
2 a clean-up crew employed by Lessee for a period of one week.
3 (b) City shall provide, at its expense, ballfield
4 preparation, maintenance of all public restrooms and all
5 restroom supplies and trash bags as is required for daily
6 stadium operations.
7 (c) If City should provide any of the labor or services
8 described in subparagraph (a) above, Lessee shall reimburse
9 City for its labor, materials, supplies and administrative.
10 (d) Lessee shall provide, at its expense, a trailer
11 restroom facility for the use of visiting teams during the
12 events held pursuant to this agreement.
13 27 . Utilities and Additional Services.
14 (a) City shall make arrangement for and pay for all
15 utilities furnished to or used at facilities, including the
16 business office, for all regular baseball games covered by the
17 agreement including, without limitation, gas, electricity,
18 water and trash collection, and for all connection charges.
19 Except, Lessee shall be responsible for all costs of telephone
20 service, including connection fees, service charges and user
21 taxes for the business office.
22 (b) At Lessee's request, City may provide, at the sole
23 discretion of the Director, or her designee, additional
24 services and supplies in support of the presentation of any of
25 the events herein contemplated. Lessee shall reimburse City
26 for the labor, materials, supplies and administrative overhead
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1 costs incurred in providing such services and supplies.
2 28. Security. Lessee shall be responsible for providing
3 all reasonably necessary security at each and every event held
4 by Lessee at the facility under the provisions of this
5 agreement.
6 Lessee shall provide traffic control and security in the
7 stadium and parking lot at its expense. Traffic control and
8 security are to be provided at the discretion of the Lessee
9 except when the Director, or the Chief of Police, in the
10 exercise of her/his sole discretion, determines that such is
11 necessary as a matter of public safety.
12 29 . Maintenance and Repair.
13 (a) General. Lessee agrees to maintain all equipment at
14 facility. City agrees to maintain all capital improvements at
15 facility.
16 (1) Lessee agrees to accept facility with such
17 capital improvements as is currently existing. City agrees to
18 provide existing improvements and to maintain the facility as
19 specified herein. In the event, and at the time that
20 additional and/or new equipment other than is specified herein
21 is reasonably necessary for the proper operation of facility,
22 Lessee shall, at Lessee's sole cost and expense, purchase such
23 additional and/or new equipment. Unless such equipment is
24 attached as a fixture to facility, equipment shall remain the
25 personal property of Lessee.
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1 (b) Routine Maintenance and Repairs. Except as
2 otherwise provided herein, City shall maintain, in good and
3 safe condition, all portions of the facility. City's routine
4 maintenance shall include, without limitation, and shall not
5 be limited to: replacing light bulbs in floodlights, field
6 lights and security lighting; manual broom or vacuum cleaning
7 and stocking the public restroom; repair of asphalt surfaces
8 including parking lot and driveways; landscape maintenance to
9 include fertilization and weed control around the perimeter of
10 the facility and both sides of perimeter fencing, all aspects
11 of playing field maintenance; bleacher repairs; all irrigation
12 system repairs including water fountains; all plumbing repair
13 such as sewage stoppages; all electrical repairs including
14 junction box blowouts, all painting for cosmetic purposes, all
15 repair and maintenance of the backstop, netting and
16 scoreboard, et cetera. In the event that the public restrooms
17 are not maintained is a reasonable manner, the Lessee shall
18 deliver written notice to the Director of Parks, Recreation
19 and Community Services. If the City fails to reasonably
20 repair or maintain the public restrooms within five working
21 days after the City receives such written notice, the Lessee
22 may repair or maintain the public restrooms and deduct their
23 reasonable costs from their lease payments to the city as
24 stated in Paragraph five of this agreement. Lessee shall
25 provide city with copies of all invoices or receipts showing
26 their costs.
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1 (c) Emergency Maintenance. Lessee hereby agrees to
2 comply with such written procedures as shall be established by
3 Director for obtaining emergency maintenance or repair of any
4 property or equipment to be maintained by City under this
5 agreement. Lessee shall be liable for all costs incurred in
6 a manner inconsistent with such procedures.
7 30. Alterations.
8 (a) Except as otherwise specifically provided herein,
9 Lessee shall not make any structural or nonstructural
10 alterations to the facility without the City's consent, which
11 shall not be withheld unreasonably. The Director may act for
12 the City in giving such consent.
13 (b) City may elect, within thirty (30) days before the
14 expiration of the term or at the time of any other surrender
15 of such facility, to require Lessee to remove any alterations
16 that Lessee has made to the facility. If City so elects,
17 Lessee, at its cost, shall restore the facility to the
18 condition it was in at the commencement of the term less
19 normal wear and tear, within sixty (60) days after notice of
20 election is given.
21 31. Construction Bond Requirements. In the event that
22 alterations are made by Lessee in accordance with the
23 provisions of this agreement or in the event that individual
24 maintenance and repairs exceeding Five Thousand and No/100
25 /Dollars ($5, 000. 00) are made by Lessee as a requirement of
26 this agreement, Lessee shall provide such faithful performance
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1 bonds, payment bonds and labor and material bonds as City may
2 demand and the terms and provisions of the construction or
3 maintenance contract to accomplish any such alterations,
4 maintenance or repairs to the facility shall be subject to the
5 approval of the Director and the City Attorney.
6 32 . Structural Restoration and Repair. City, at its
7 cost, shall repair, replace, and maintain the structural
8 integrity of the following:
9 (a) All structural parts of the building and permanent
10 fixtures and other improvements that are a part of the
11 facility, including, without limitation, the foundations,
12 bearing walls, sub-flooring, ceiling, roof, window frames (not
13 including screen and panes) , gutters and downspouts, light
14 poles, grandstands, and concession stands, et cetera.
15 (b) The unexposed electrical, plumbing and sewage
16 systems, including, without limitations, those portions of the
17 systems lying outside the facility.
18 (c) City shall pay for all repair of the facility if it
19 is damaged by (1) causes outside the facility over which
20 Lessee has no control; (2) acts or omissions of City or its
21 authorized representatives; or (3) City's failure to perform
22 its obligations under this agreement.
23 (d) Lessee shall, and hereby agrees, to reimburse City
24 for City's total cost of repairs made necessary by the
25 activities and operations of Lessee, Lessee's agents,
26 employees, contractors or invitees.
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1 33 . Destruction.
2 (a) If, during the term of this agreement, the facility
3 is totally or partially destroyed from any cause, rendering
4 the facility totally or partially inaccessible or unusable and
5 if, with reasonable diligence, the restoration can be
6 completed within ninety (90) working days after the date of
7 destruction, and if City determines it is within its financial
8 means to restore the facility, then City shall restore the
9 facility to substantially the same condition as it was in
10 immediately before destruction, and such action shall not
11 terminate this agreement.
12 (b) If such destruction occurs during the playing season
13 of lessee, City shall have 15 calendar days following date of
14 destruction within which to notify lessee of City's
15 determination of its ability to repair the facility within the
16 time set forth in subparagraph (a) . If such destruction
17 occurs at any other time, City shall have 15 calendar days
18 within which to provide such notice.
19 (c) Upon notice that City in the reasonable exercise of
20 its discretion determines that restoration cannot be made in
21 the time stated in subparagraph (a) . Lessee may then
22 terminate this agreement immediately by giving written notice
23 to City. If Lessee fails to terminate this agreement, within
24 30 calendar days of date of such notice, City, at its
25 election, can either terminate this agreement, or restore the
26 facility within a reasonable time. If within 30 calendar days
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I following date of expiration of the period for lessee's notice
2 of its election to terminate, City notifies lessee of its
3 intent to restore, this agreement shall continue in full force
4 and effect.
5 (d) When such destruction occurs within ninety (90) days
6 of the last day of the then current baseball season, Lessee
7 may conduct the remainder of its home games during that season
8 within some other facility without impairment of any of its
9 rights hereunder.
10 (e) The time periods herein set forth shall not include
11 time for evaluation of loss by any insurer. Notice that a
12 claim for loss of facility is under evaluation by an insurer
13 of the facility shall toll the time for notice of intent to
14 restore. City shall not be responsible for any losses
15 incurred by lessee proximately arising from a delay in the
16 restoration of the facility which occurs for reasons beyond
17 the control of the City.
18 34 . Time of Essence/Breach. Where performance of a covenant
19 is specified herein to be on or before a certain date, time
20 shall be of the essence of said covenant. Performance by the
21 Lessee of each and every condition, covenant or provision of
22 this agreement is material, the breach of which shall
23 constitute a material breach of this contract for which City's
24 Director may terminate this agreement; provided, however, that
25 any such termination by said Director shall not be effective
26 until not less than thirty (30) days after notice of
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I termination by said Director to the Lessee and said Director
2 may withdraw and cancel such termination if, in the sole
3 discretion of City: (1) the breach is cured within the
4 thirty-day period; or (2) the nature of the breach is such
5 that it cannot be cured within such thirty-day period but the
6 Lessee promptly commences to correct such breach and proceeds
7 to correct the same as promptly as reasonably practicable.
8 35. Attorney's Fees/Legal Costs. If any action at law or in
9 equity shall be brought to enforce or interpret the terms of
10 this agreement, including costs of reduction to cash the
11 proceeds of any security provided hereunder, the prevailing
12 party shall be entitled to recover from the other party as
13 part of the prevailing party's costs reasonable attorney's
14 fees, the amount of which shall be fixed by the court and
15 shall be made a part of any judgement or decree rendered. For
16 any action by the City Attorney to enforce this agreement,
17 reasonable attorneys fees shall be determined at the rate of
18 $150. 00 per hour.
19 36. Waiver of Breach. The waiver of any breach of any term,
20 covenant or condition herein contained shall not be deemed to
21 be a waiver of any subsequent breach of the same or any other
22 term, condition or covenant contained herein.
23 37 . Surrender of Premises. Upon the termination of the term,
24 Lessee shall surrender to City, the facility and all Lessee's
25 improvements and alterations, in good condition (except for
26 ordinary wear and tear) occurring after the last necessary
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1 maintenance made by Lessee and destruction of the facility
2 covered by paragraph 33 , except for alterations that Lessee
3 has the right to remove, or is obligated to remove, under the
4 provisions of paragraph 30. Lessee shall remove all of its
5 personal property and perform all restoration made necessary
6 by the removal of said personal property and by the removal of
7 any alterations prior to the termination of the term of this
8 agreement.
9 38 . Termination.
10 (a) The City may terminate this agreement for cause including
11 but not limited to, the following occurrences:
12 (1) Any action taken or suffered by the Lessee or
13 shareholders of 40% or more under an insolvency or
14 bankruptcy act, including the appointment of a receiver
15 to take possession of all or substantially all of the
16 assets of the Lessee or shareholders of 40% or more.
17 (2) Any general assignment by Lessee or shareholders of
18 40% or more for the benefit of creditors.
19 (3) Loss of the franchise.
20 (4) Lessee fails to provide the regular playing of
21 baseball games at Class A or above league level at the
22 facility for reasons other than loss or destruction of
23 the field or other impossibility, including but not
24 limited to a players strike.
25 (b) The Mayor and Common Council is empowered to decide, on
26 the part of the City, that this agreement is to be terminated
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I for cause and to furnish 30 days' written notice thereof to
2 the Lessee. Lessee shall have the right to resolve any
3 default within those 30 days.
4 39. Effect of Termination.
5 (a) Any other provisions of this agreement notwithstanding,
6 upon termination of this agreement City shall be entitled to
7 utilize any security in the manner as set forth in this
8 agreement.
9 (b) Upon termination of this agreement, in addition to any
10 other amounts due to City hereunder, City shall be entitled to
11 receipt of any unpaid rents for the remainder of the term
12 during which such termination occurs.
13 40. Community Service. In addition to all other
14 considerations set forth herein, Lessee agrees to perform the
15 following community services during the term of this
16 agreement:
17 (a) Conduct a minimum of two baseball clinics a year without
18 charge for children under the age of 18. Said clinics are to
19 be scheduled at the discretion of Lessee. Director shall
20 receive 60 days' prior written notice of the date of each
21 clinic.
22 (b) Lessee shall provide at least one public service
23 announcement on the reader board during each game. The
24 message shall be published without charge. Said language
25 shall be approved by the Director.
26 41. Incorporation of Prior Agreements and Amendments. This
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1 agreement contains all agreements of the parties with respect
2 to any matter mentioned herein. No prior agreement or
3 understanding pertaining to any such matter shall be effective
4 except as otherwise incorporated herein. This agreement may
5 be modified in writing only, signed by the parties in interest
6 at the time of the modification. This agreement shall not be
7 construed as requiring the City to make any expenditures,
8 other than as specifically set forth herein.
9 42 . Venue. If either Lessee or City initiate an action to
10 enforce the terms hereof or declare rights hereunder,
11 including actions on any bonds and/or surety agreements, the
12 parties agree that the venue thereof shall be the County of
13 San Bernardino, State of California.
14
15 43 . Severability. The invalidity of any provision of this
16 agreement, as determined by a Court of competent jurisdiction,
17 shall in no way affect the validity of any other provision
18 hereof.
19 44 . Captions. Paragraph headings in this agreement are used
20 solely for convenience, and shall be wholly disregarded in the
21 construction of this agreement.
22 45. Covenant and Conditions. Each provision of this
23 agreement performable by Lessee shall be deemed both a
24 covenant and a condition.
25 46. Notice. Except as otherwise provided herein, any notice,
26 statement, demand, request, consent, approval, authorization,
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1 offer, agreement or communication, that either party hereto
2 desires, or is required to give to the other party, shall be
3 in writing and shall be sufficiently given and served upon the
4 other party if delivered personally, or if sent by United
5 States postal service, first class postage prepaid, and
6 addressed as specified herein. Either party hereto may
7 change its address for purposes of this agreement by giving
8 the other party appropriate written notice of the
9 change of address. Notice shall be deemed to be communicated
10 within forty-eight (48) hours of the time of mailing, if
11 mailed to the following:
12 AS TO CITY: AS TO LESSEE:
13 Director David Elmore
Parks, Recreation and Elmore Sports Group Ltd.
14 Community Services 1334 Parkview Ave
547 North Sierra Way Manhattan Beach, Ca 91266
15 San Bernardino, CA 92401
16
47 . No Third Party Beneficiaries of Agreement. Any insurance
17
coverage required herein is for the protection of City, its
18
officers, agents, employees, contractors, and invitees. No third
19
party beneficiaries other than as specifically named herein are
20
contemplated under any provision of this agreement, nor is it the
21
intent of this agreement to create any right in same.
22
48. Vendor Consideration. Lessee hereby agrees to give best
23
effort consideration to vendors with principal offices in the City
24
of San Bernardino in the award of contracts for the provision of
25
26 goods and services.
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1 49. Accounting.
2 (a) Commencing with the month of May, on before the 10th day
3 of every other month, during the term of this lease, Lessee
4 shall file with the Parks, Recreation and Community Services
5 Director of City, an accounting showing the gross receipts
6 from use of the facility. Said accounting statement shall
7 contain an appropriate certification that all gross receipts
8 of the previous month have been duly and properly reported to
9 City and that the statements filed with the City are in accord
10 with Lessee's reports of profits and losses to its owners and
11 its Federal Income Tax Return.
12 (b) Lessee shall keep true and accurate books and records
13 showing all of his business transactions conducted on or from
14 the premises in accounts separate from any other business
15 which Lessee may have or conduct. A copy of records shall be
16 retained on the premises or at such other place in San
17 Bernardino County as is approved by City, provided that Lessee
18 may temporarily remove the same as may be necessary for legal
19 or accounting purposes.
20 (c) City shall have the right, after reasonable notice and at
21 any reasonable time, from time to time, to examine and audit
22 the books and records of Lessee and his sublessees,
23 concessionaires and licensees, including California Sales Tax
24 Records, and to make copies of same and of any written
25 agreements between Lessee and such sublessees,
26 concessionaires, and licensees of Lessee. Providing further,
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1 that City reserves the right to examine all such books and
2 records with reasonable notice during the period following the
3 regular baseball season (September 15th) , up to 30 days after
4 the expiration of this agreement.
5 (d) Lessee shall provide the City with all information needed
6 to exercise its rights under this section of agreement, and
7 shall not unreasonably withhold any requested information.
8 50. Successors Bound. This agreement shall be binding
9 upon and inure to the benefit of each of the parties and their
10 respective legal representatives, successors, heirs and
11 assigns.
12
CITY OF SAN BERNARDINO
13
DATED: BY:
14 .Tom Minor, Mayor
ATTEST:
15
16 City Clerk
17 BY:
David Elmore, Chairman
18 Elmore Sports Group Ltd.
19
20 Approved as to form
and legal content:
21
JAMES F. PENMAN,
22 City,,,Attorney
23 BY:
24
25
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-a EXHIBIT "A"
I ,
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FISCALINI FIELD
CITY' S OPERATING COSTS
PROJECTED
APR - AUG
1992-93 APR - AUG 1994
UTILITIES ANNUAL BUDGET 1993 SEASON SEASON
Gas $ 1 , 000 $ 225 $ 225
Water/Sewer 4, 400 1, 964 1, 964
Electrical 43, 800 22, 077 22, 077
Refuse 19 , 893 6 , 631 6 , 631
Sub-Total $ 69, 093 $ 30, 897 $ 30, 897
MAINTENANCE
General Landscaping $ 45 , 000 N/A N/A
Game Prep 5 , 899 5, 899 5, 899
Grandstand Cleaning 0 0 0
Restroom Custodial 5 , 657 5 , 657 5, 657
Sub-Total $ 56, 556 $ 11, 556 $ 11 , 556
MISCELLANEOUS
Trailer Rental $ 5, 823 $ 5, 823 0
TOTAL $ 131, 472 $ 48, 276 $ 42, 453
EXHIBIT "B"
FISCALINI FIEL
BLEACHER CLEANUP EQUIPMENT
2 - Back Pack Blowers
2 - Leaf Rakes
2 - Push Brooms
2 - Pickup Sticks
6 - 25 Ft Lengths Fire Hose
2 - Fire Hose Nozzles
2 - Gum Scrapers
Trash Bags
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