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HomeMy WebLinkAbout37-Council office CITY OF SAN BERNARDINO . REQUEST FOR COUNCIL A9",W'" (:~ i h! [\ I Ui\!"_,,II~I'\I_. From: Dept. Date: MCC Date: Councilman Dennis J. Baxter Second Ward Subject: Resolution authorizing the City Manager to execute an Agreement With the Patrons of the Roosevelt Bowl for the provision of support services for Market Night at Perris Hill Park, and ratif'ying any action taken between April 17, 2008 and the date that this Resolution is adopted. Council Office September 25, 2008 October 6, 2008 Synopsis of Previous Council Action: 3/20/06 8/18/08 9/02/08 9/15/08 Council authorized execution of a two-year Agreement between the City and the Patrons of the Roosevelt Bowl to provide support services for Market Night at Perris Hill Park. Council continued item Council continued item Council continued item Recommended Motion: Adopt Resolution. ~~ Signature Phone: 5222 Contact Person: Councilman Dennis J. Baxter Ward: 2 Yes Supporting Data Attached: Amount: $ FUNDING REQUIREMENTS: Source: (Acct. No.) (Acct. DescriDtion) Finance: Council Notes: 8so #Pfh,,-.oWU:>A+ ~~If'S Agenda Item No. 3 '7 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT Subiect: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute an Agreement with the Patrons of the Roosevelt Bowl for the provision of support services for Market Night at Perris Hill Park, and ratifying any action taken between April 17, 2008 and the date that this Resolution was adopted. Backl!:round: On March 20, 2006, Council authorized the execution of an Agreement between the Patrons of the Roosevelt Bowl to provide support services for Market Night at Perris Hill Park. The term of the Agreement was for twenty-four months, beginning April 17, 2006 and ending on April 16, 2008. This item was continued to allow the Patrons of the Roosevelt Bowl the opportunity to review the Agreement. The City and the Patrons of the Roosevelt Bowl are now ready to move forward. Recommended Action: Adopt Resolution 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 / '=0 ft:=v, [ , \l\li \~ ":.dJ U /7 ',/ ,( J RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE PATRONS OF THE ROOSEVELT BOWL FOR THE PROVISION OF SUPPORT SERVICES FOR MARKET NIGHT AT PERRIS HILL PARK, AND RATIFYING ANY ACTION TAKEN BETWEEN APRIL 17,2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager is authorized to execute the Agreement between the City of San Bernardino and the Patrons of the Roosevelt Bowl relative to support services for Market Night at Perris Hill Park, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as though fully set forth at length, and SECTION 2. That the implementation date of the Agreement is April 17, 2008; therefore, any action taken between April 17, 2008 and the date that this Resolution is adopted is hereby ratified, and SECTION 3. That the authorization to execute the above referenced Agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this Resolution. III III III III III III III III III 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE PATRONS OF THE ROOSEVELT BOWL FOR THE PROVISION OF SUPPORT SERVICES FOR MARKET NIGHT AT PERRIS HILL PARK, AND RATIFYING ANY ACTION TAKEN BETWEEN APRIL 17,2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the _ day of , 2008, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA BAXTER BRINKER DERRY KELLEY JOHNSON McCAMMACK Rachel Clark, City Clerk The foregoing resolution is hereby approved this day of ,2008. Patrick J. Morris, Mayor City of San Bernardino Approved as to Form: .~ es F. Penman, City Attorney AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PATRONS OF THE ROOSEVELT BOWL This Agreement is entered into this day of October, 2008, by and between the City of San Bernardino, a municipal corporation (referred to herein as "City") and Patrons of the Roosevelt Bowl (a 501 (c) (3) non-profit organization (referred to herein as "Organization") (Sometimes jointly referred to herein as 'Parties"). Recitals. Whereas, Organization has requested support services from City in order to assist in defraying the expenses connected with the conduct of events related to their "Market Night" Program at Perris Hill Park (the "Park") for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City-owned facility; and Whereas, the support services proposed to be provided by the City are for a valid municipal purpose, to wit: for the conduct of events related to the Organization's Weekly Market Night Program (the "Program") in Perris Hill Park for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City-owned facility: and Whereas, the Patrons of the Roosevelt Bowl was established for the sole purpose of providing financial, physical, and program support for arts, culture, entertainment, and community activity at the Roosevelt Bowl Outdoor Amphitheater in San Bernardino's Perris Hill Park: and Whereas, the weekly Market Nights at Perris Hill Park will be held during the months of May through October Inclusive. Now therefore, for the consideration hereinafter set forth, the Parties do hereby agree as follows: I. The recitals set forth above are hereby repeated and made a part hereof and are hereby deemed to be true. 2. Term. This Agreement is for an initial term commencing April 17, 2008 and ending on April 16, 20 10. The Agreement may be renewed upon the written concurrence of the Parties executed on or before the expiration of the then current term. Any renewal shall be upon such terms and conditions as shall be mutually agreeable to the Parties and incorporated into the written renewal. 3. In support of the Program, the City hereby agrees to the following: A. Electricity: The City shall be responsible for the cost of electricity necessary to operate approved concessions and facilities of the Program. Approved concessions and facilities shall be those set forth on a list presented to the Director of Parks and Recreation by the Organization at least thirty days prior to the first day of the Program. Separate and apart, Organization shall be responsible for the installation and all costs associated with the operation of any portable electrical system required to provide electricity to any individual vendor. B. ParkinglSignage/Barricades: The City shall post, or cause to be posted with the assistance of Organization, in conformance with the law, 25 temporary "No parking after 3:00 p.m. on Tuesday" signs to be placed along the Park roadway on the morning of the Program. The City will barricade, or cause to be barricaded, the Park roadway in conformance with the law, as needed before, during and after the Program. C. Parks and Recreation Storage: The City shall provide space in the former ticket office and adjoining room at Fiscalini Field for storage and the conduct of meetings by Organization; for placement of the temporary electrical system; for storage of cardboard trash containers, for storage of no parking signs and miscellaneous supplies. The space shall be made available until such time as the Patrons/Junior University develop their own on-site storage facility or the expiration of this Agreement; whichever occurs first. AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PATRONS OF THE ROOSEVELT BOWL D. Police: The Police Department shall provide police officers at no cost to the Organization for the Program as in the numbers and under the terms and conditions specified by the Police Chief. E. Street Banners: While Market Night is in Season, the City will provide use of the banner location on Highland Avenue (and other locations as available). Banner shall be mounted by City Employees. F. Maintenance: City provide an adequate number of bags and cardboard trash receptacles as determined by City to collect the refuse of the attendees which will be emptied by Market Night staff into a 3 cubic yard container with weekly service which the Organization will pay to lease from the City. 3. Accountability and Use of Funds by Organization Organization is solely responsible for the financial support, administration and management of Program. Organization hereby covenants and agrees that one hundred percent (100%) of its weekly net profit (weekly revenue minus weekly expenses) will be committed and spent on improvements to the Roosevelt Bowl. Organization will provide a monthly report to the Director of Parks and Recreation ("Director") listing vendors, attendance, expenses and cash receipts. Additionally, Organization will provide monthly financial statements to the Director, which shall include, but not be limited to, the amount of funds spent by Organization on improvements to the Roosevelt Bowl. Organization further agrees to permit the City, its agents and representatives at reasonable intervals at any and all times upon reasonable advance notice, to inspect all books, records, and accounts for the weekly Market Night events. 4. Indemnity. Organization agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Organization, its employees, agents, concessionaires, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the City, its elected officials, employees, agents or representatives, As part of the foregoing indemnity, Organization agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions, Organization hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Organization relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement 5. Insurance, While not restricting or limiting the foregoing, during the term of this Agreement, Organization shall maintain in effect policies of comprehensive public, general, and automobile liability insurance, and all such riders as are related to the operation of the Program, in the amount of $2,000,000 per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents, as additional insureds, The policy shall be without right of subrogation against the City, The insurance provided shall carry the endorsement that "This insurance is primary and noncontributory as respects any loss or liability arising directly or indirectly from the insureds operations." AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PATRONS OF THE ROOSEVELT BOWL 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 days prior notice to the City. 6. Organization shall obtain from the City and all other appropriate agencies, all such permits and approvals as shall be required under law for the conduct of the Program, or any part thereof. 7. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, Organization shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. ASSIGNMENT. Organization shall not voluntarily or by operation of law assIgn, transfer, sublet or encumber all or any part of the Organization's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release Organization of Organization's obligation to perform all other obligations to be performed by Organization hereunder for the term of this Agreement. 9. Termination. This Agreement may be terminated by either Party upon the giving of thirty (30) days prior written notice. Authorization to Execute. Organization hereby covenants that it has taken all actions necessary to make the adherence to the obligations imposed y this Agreement a binding obligation of the Organization. 1. Notices. All notices herein required shall be in writing and delivered ill person or sent by certified mail, postage prepaid, addressed as follows: As to City: As to Organization: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Attn: City Manager Patrons of the Roosevelt Bowl 1833 Kenwood Avenue San Bernardino, CA 92404 Attn: President 12. 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. Entire Agreement This Agreement and any documents or instruments referred to herein integrates all terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations and prior writings in respect to the subject matter hereof. In the event of conflict between the terms, conditions or provisions of this Agreement, and any such document or instrument, the terms and conditions of this Agreement shall prevail. Modification This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. 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 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PATRONS OF THE ROOSEVELT BOWL offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. In Witness Whereof, the parties hereto have executed this Agreement on the day and date first above shown. CITY OF SAN BERNARDINO By: City Manager PATRONS OF THE ROOSEVELT BOWL By: President, Patrons of the Roosevelt Bowl Approved as to form: 7-.~ es F. Penman, ty Attorney ~7 CONTINUED ITEMS CONTINUED FROM SEPTEMBER 2, 2008 Council Office 38. Resolution of the Mayor and Conunon Council of the City of San Bernardino authorizing the City Manager to execute a Facility Use Agreement by and between the American Sports University and the City of San Bernardino allowing for the University's use of Meadowbrook Park and the Rudy C. Hernandez Recreation Center. (New Staff Report Attached) (No backup material was distributed on August 4, 2008, Item No. 11; item continued and backup material distributed on August 6, 2008, Item No. NBl; item continued to September 2,2008, Item No. 34.) Ward 1 Approved MOTION: That said resolution be adopted. Adopted 2008-371 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX CONTINUED FROM SEPTEMBER 2, 2008 39. Resolution of the Mayor and Conunon Council of the City of San Bernardino authorizing the City Manager to execute an agreement with the patrons of the Roosevelt Bowl for the provision of support services for Market Night at Perris Hill Park, and ratifying any action taken between April 17, 2008 and the date that this resolution is adopted. (Backup material distributed on August 18, 2008, Item No. 10; item continued to September 2,2008, Item No. 35.) Ward 2 No Action Taken MOTION: That said resolution be adopted. Approved MOTION: That the matter be continued to October 6,2008. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX CONTINUED FROM SEPTEMBER 2, 2008 Parks, Recreation & Community Services 40. Resolution of the Mayor and Conunon Council of the City of San Bernardino authorizing the City Manager to execute a Use of Facilities Agreement between the City of San Bernardino and California State University, San Bernardino providing for the University's use of Fiscalini Field (Backup material distributed on August 18, 2008, Item No. 26; item continued to September 2,2008, Item No. 38.) (Revenue to the City - $17,500) Ward 2 Approved MOTION: That the matter be tabled. 19 09/15/2008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE PATRONS OF THE ROOSEVELT BOWL FOR THE PROVISION OF SUPPORT SERVICES FOR MARKET NIGHT AT PERRIS HILL PARK, AND RATIFYING ANY ACTION TAKEN BETWEEN APRIL 17,2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager is authorized to execute the Agreement between the City of San Bernardino and the Patrons of the Roosevelt Bowl relative to support services for Market Night at Perris Hill Park, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as though fully set forth at length, and SECTION 2. That the implementation date of the Agreement is April 17, 2008; therefore, any action taken between April 17, 2008 and the date that this Resolution is adopted is hereby ratified, and SECTION 3. That the authorization to execute the above referenced Agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this Resolution. III III III III III III III III It Se1 Oq~JS-Dg ~~ e \AJ III 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE PATRONS OF THE ROOSEVELT BOWL FOR THE PROVISION OF SUPPORT SERVICES FOR MARKET NIGHT AT PERRIS HILL PARK, AND RATIFYING ANY ACTION TAKEN BETWEEN APRIL 17,2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the _ day of , 2008, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA BAXTER BRINKER DERRY KELLEY JOHNSON McCAMMACK Rachel Clark, City Clerk The foregoing resolution is hereby approved this day of ,2008. Patrick J. Morris, Mayor City of San Bernardino Approved as to Form: sF. Penman, City Attorney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PATRONS OF THE ROOSEVELT BOWL This Agreement is entered into this day of September, 2008, by and between the City of San Bernardino, a municipal corporation (referred to herein as "City") and Patrons of the Roosevelt Bowl (a 501 (c) (3) non-profit organization (referred to herein as "Organization") (Sometimes jointly referred to herein as 'Parties"). Recitals. Whereas, Organization has requested support services from City in order to assist in defraying the expenses connected with the conduct of events related to their "Market Night" Program at Perris Hill Park (the "Park") for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City-owned facility; and Whereas, the support services proposed to be provided by the City are for a valid municipal purpose, to wit: for the conduct of events related to the Organization's Weekly Market Night Program (the "Program") in Perris Hill Park for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City-owned facility: and Whereas, the Patrons of the Roosevelt Bowl was established for the sole purpose of providing financial, physical, and program support for arts, culture, entertainment, and community activity at the Roosevelt Bowl Outdoor Amphitheater in San Bernardino's Perris Hill Park: and Whereas, the weekly Market Nights at Perris Hill Park will be held during the months of April through September and during the month of December. Now therefore, for the consideration hereinafter set forth, the Parties do hereby agree as follows: 1. The recitals set forth above are hereby repeated and made a part hereof and are hereby deemed to be true. Exhibit .. A" 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Term. This Agreement is for an initial term commencing April 17,2008 and ending on April 16,2010. The Agreement may be renewed upon the written concurrence of the Parties executed on or before the expiration of the then current term. Any renewal shall be upon such terms and conditions as shall be mutually agreeable to the Parties and incorporated into the written renewal. In support of the Program, the City hereby agrees to the following: A. Electricity: The City shall be responsible for the cost of electricity necessary to operate approved concessions and facilities of the Program. Approved concessions and facilities shall be those set forth on a list presented to the Director of Parks and Recreation by the Organization at least thirty days prior to the first day of the Program. Separate and apart, Organization shall be responsible for the installation and all costs associated with the operation of any portable electrical system required to provide electricity to any individual vendor. B. Parking/Signage/Barricades: The City shall post, or cause to be posted with the assistance of Organization, in conformance with the law, 25 temporary "No parking after 3:00 p.m. on Tuesday" signs to be placed along the Park roadway on the morning of the Program. The City will barricade, or cause to be barricaded, the Park roadway in conformance with the law, as needed before, during and after the Program. C. Parks and Recreation Storage: The City shall provide space in the former ticket office and adjoining room at Fiscalini Field for storage and the conduct of meetings by Organization; for placement of the temporary electrical system; for storage of cardboard trash containers, for storage of no parking signs and miscellaneous supplies. The space 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 4. 16 17 18 19 20 21 22 23 24 25 26 27 28 shall be made available until such time as the Patrons/Junior University develop their own on-site storage facility or the expiration of this Agreement; whichever occurs first. D. Police: The Police Department shall provide police officers at no cost to the Organization for the Program in the numbers and under the terms and conditions specified by the Police Chief. E. Street Banners: While Market Night is in Season, the City will provide use of the banner location on Highland Avenue (and other locations as available). F. Maintenance: City shall provide an adequate number of bags and cardboard trash receptacles as determined by City to collect the refuse of the attendees which will be emptied by Market Night staff into a 3 cubic yard container with weekly service which the Organization will pay to lease from the City. . Accountability and Use of Funds by Organization Organization is solely responsible for the financial support, administration and management of Program. Organization hereby covenants and agrees that one hundred percent (100%) of its weekly net profit (weekly revenue minus weekly expenses) will be committed and spent on improvements to the Roosevelt Bowl. Organization will provide a monthly report to the Director of Parks and Recreation ("Director") listing vendors, attendance, expenses and cash receipts. Additionally, Organization will provide monthly financial statements to the Director, which shall include, but not be limited to, the amount of funds spent by Organization on improvements to the Roosevelt Bowl. Organization further agrees to permit the City, its agents and representatives at reasonable intervals at any and all times upon reasonable advance notice, to inspect all books, records, and accounts for the weekly Market Night events. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Indemnity. Organization agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Organization, its employees, agents, concessionaires, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Organization agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. Organization hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Organization relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. Insurance. 6. While not restricting or limiting the foregoing, during the term of this Agreement, Organization shall maintain in effect policies of comprehensive public, general, and automobile liability insurance, and all such riders as are related to the operation of the Program, in the amount of $2,000,000 per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents, as additional insureds. The policy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. shall be without right of subrogation against the City. The insurance provided shall carry the endorsement that "This insurance is primary and noncontributory as respects any loss or liability arising directly or indirectly from the insureds operations." 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 days prior notice to the City. Obligation to Obtain Permits Organization shall obtain from the City and all other appropriate agencies, all such permits and approvals as shall be required under law for the conduct of the Program, or any part thereof. 8. Non-discrimination. In the performance of this Agreement and in the hiring and recruitment of employees, Organization shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 9. Assignment. Organization shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the Organization's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Organization of Organization's obligation to perform all other obligations to be performed by Organization hereunder for the term of this Agreement. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10. Termination. This Agreement may be terminated by either Party upon the giving of thirty (30) days prior written notice. 11. Authorization to Execute. Organization hereby covenants that it has taken all actions necessary to make the adherence to the obligations imposed by this Agreement a binding obligation of the Organization. 12. Notices. All notices herein required shall be in writing and delivered III person or sent by certified mail, postage prepaid, addressed as follows: As to City: As to Organization: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Attn: City Manager Patrons of the Roosevelt Bowl 1833 Kenwood Avenue San Bernardino, CA 92404 Attn: President 13. Venue The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 14. Entire Agreement This Agreement and any documents or instruments referred to herein integrates all terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations and prior writings in respect to the subj ect matter hereof. In the event of conflict between the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terms, conditions or provisions of this Agreement, and any such document or instrument, the terms and conditions of this Agreement shall prevail. 15. Modification This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. 16. Severability If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. In Witness Whereof, the parties hereto have executed this Agreement on the day and date first above shown. CITY OF SAN BERNARDINO By: City Manager PATRONS OF THE ROOSEVELT BOWL By: President, Patrons of the Roosevelt Bowl Approved as to form: By: James F. Penman, City Attorney 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PATRONS OF THE ROOSEVELT BOWL This Agreement is entered into this day of September, 2008, by and between the City of San Bernardino, a municipal corporation (referred to herein as "City") and Patrons of the Roosevelt Bowl (a 501 (c) (3) non-profit organization (referred to herein as "Organization") (Sometimes jointly referred to herein as 'Parties"). Recitals. Whereas, Organization has requested support services from City in order to assist in defraying the expenses connected with the conduct of events related to their "Market Night" Program at Perris Hill Park (the "Park") for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City-owned facility; and Whereas, the support services proposed to be provided by the City are for a valid municipal purpose, to wit: for the conduct of events related to the Organization's Weekly Market Night Program (the "Program") in Perris Hill Park for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City-owned facility: and Whereas, the Patrons of the Roosevelt Bowl was established for the sole purpose of providing financial, physical, and program support for arts, culture, entertainment, and community activity at the Roosevelt Bowl Outdoor Amphitheater in San Bernardino's Perris Hill Park: and Whereas, the weekly Market Nights at Perris Hill Park will be held during the months of April through September and during the month of December. Now therefore, for the consideration hereinafter set forth, the Parties do hereby agree as follows: 1. The recitals set forth above are hereby repeated and made a part hereof and are hereby deemed to be true. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. Term. This Agreement is for an initial term commencing April 17, 2008 and ending on April 16,2010. The Agreement may be renewed upon the written concurrence of the Parties executed on or before the expiration of the then current term. Any renewal shall be upon such terms and conditions as shall be mutually agreeable to the Parties and incorporated into the written renewal. In support of the Program, the City hereby agrees to the following: A. Electricity: The City shall be responsible for the cost of electricity necessary to operate approved concessions and facilities of the Program. Approved concessions and facilities shall be those set forth on a list presented to the Director of Parks and Recreation by the Organization at least thirty days prior to the first day of the Program. Separate and apart, Organization shall be responsible for the installation and all costs associated with the operation of any portable electrical system required to provide electricity to any individual vendor. B. Parking/Signage/Barricades: The City shall post, or cause to be posted with the assistance of Organization, in conformance with the law, 25 temporary "No parking after 3:00 p.m. on Tuesday" signs to be placed along the Park roadway on the morning of the Program. The City will barricade, or cause to be barricaded, the Park roadway in conformance with the law, as needed before, during and after the Program. C. Parks and Recreation Storage: The City shall provide space in the former ticket office and adjoining room at Fiscalini Field for storage and the conduct of meetings by Organization; for placement of the temporary electrical system; for storage of cardboard trash containers, for storage of no parking signs and miscellaneous supplies. The space 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 4. 16 17 18 19 20 21 22 23 24 25 26 27 28 shall be made available until such time as the Patrons/Junior University develop their own on-site storage facility or the expiration of this Agreement; whichever occurs first. D. Police: The Police Department shall provide police officers at no cost to the Organization for the Program in the numbers and under the terms and conditions specified by the Police Chief. E. Street Banners: While Market Night is in Season, the City will provide use of the banner location on Highland Avenue (and other locations as available). F. Maintenance: City shall provide an adequate number of bags and cardboard trash receptacles as determined by City to collect the refuse of the attendees which will be emptied by Market Night staff into a 3 cubic yard container with weekly service which the Organization will pay to lease from the City. Accountability and Use of Funds by Organization Organization is solely responsible for the financial support, administration and management of Program. Organization hereby covenants and agrees that one hundred percent (100%) of its weekly net profit (weekly revenue minus weekly expenses) will be committed and spent on improvements to the Roosevelt Bowl. Organization will provide a monthly report to the Director of Parks and Recreation ("Director") listing vendors, attendance, expenses and cash receipts. Additionally, Organization will provide monthly financial statements to the Director, which shall include, but not be limited to, the amount of funds spent by Organization on improvements to the Roosevelt Bowl. Organization further agrees to permit the City, its agents and representatives at reasonable intervals at any and all times upon reasonable advance notice, to inspect all books, records, and accounts for the weekly Market Night events. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. Indemnity. Organization agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Organization, its employees, agents, concessionaires, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Organization agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. Organization hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Organization relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. Insurance. 6. While not restricting or limiting the foregoing, during the term of this Agreement, Organization shall maintain in effect policies of comprehensive public, general, and automobile liability insurance, and all such riders as are related to the operation of the Program, in the amount of $2,000,000 per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commissions, elected officials, officers, attorneys, employees, and agents, as additional insureds. The policy 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. shall be without right of subrogation against the City. The insurance provided shall carry the endorsement that "This insurance is primary and noncontributory as respects any loss or liability arising directly or indirectly from the insureds operations." 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 days prior notice to the City. Obligation to Obtain Permits Organization shall obtain from the City and all other appropriate agencies, all such permits and approvals as shall be required under law for the conduct ofthe Program, or any part thereof. 8. Non-discrimination. In the performance of this Agreement and in the hiring and recruitment of employees, 9. Organization shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. Assignment. Organization shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the Organization's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Organization of Organization's obligation to perform all other obligations to be performed by Organization hereunder for the term of this Agreement. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10. Termination. This Agreement may be terminated by either Party upon the giving of thirty (30) days prior written notice. 11. Authorization to Execute. Organization hereby covenants that it has taken all actions necessary to make the adherence to the obligations imposed by this Agreement a binding obligation of the Organization. 12. Notices. All notices herein required shall be in writing and delivered III person or sent by certified mail, postage prepaid, addressed as follows: As to City: As to Organization: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Attn: City Manager Patrons ofthe Roosevelt Bowl 1833 Kenwood Avenue San Bernardino, CA 92404 Attn: President 13. Venue The parties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. 14. Entire Agreement This Agreement and any documents or instruments referred to herein integrates all terms 27 and conditions mentioned herein or incidental hereto, and supersedes all negotiations and 28 prior writings in respect to the subject matter hereof. In the event of conflict between the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 terms, conditions or provisions of this Agreement, and any such document or instrument, the terms and conditions of this Agreement shall prevail. 15. Modification This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. 16. Severability If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. In Witness Whereof, the parties hereto have executed this Agreement on the day and date first above shown. CITY OF SAN BERNARDINO By: City Manager PATRONS OF THE ROOSEVELT BOWL By: President, Patrons of the Roosevelt Bowl Approved as to form: ? a es F. Penman, ty Attorney 34. Continued. ~~:~q ~"S" No Action Taken MOTION: That said resolution be adopted. Approved MOTION: That the matter be continued to September 15, 2008. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX CONTINUED FROM AUGUST 18, 2008 35. Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute an agreement with the patrons of the Roosevelt Bowl for the provision of support services for Market Night at Perris Hill Park, and ratifying any action taken between April 17, 2008 and the date that this resolution is adopted. (See Attached) (Backup material distributed on August 18, 2008, Item No. 10.) Ward 2 Approved MOTION: That the matter be continued to September 15, 2008. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX CONTINUED FROM AUGUST 18, 2008 Development Services 36. Resolution of the City of San Bernardino authorizing the City Manager to execute agreements for services with Joseph E. Bonadiman & Associates, Inc., Guida Surveying, Inc. and Associated Engineers, Inc. for on-call surveying and map checking support. (See Attached) (Cost to the City - $130,000 from CIP Accounts and Plan Check Trust) (Backup material distributed on August 18, 2008, Item No. 19.) All Wards Approved MOTION: That said resolution be adopted. Adopted 2008-355 CONTINUED FROM AUGUST 18, 2008 Finance 37. Resolution of the Mayor and Common Council approving and adopting the City of San Bernardino's final budget for Fiscal Year 2008-2009 and establishing the City's appropriation limit as required by Article XXIII B of the California State Constitution. (See Attached) (Backup material distributed on August 18, 2008, Item No. 23.) (Resolution not available at time of printing.) All Wards (Item Continued on Next Page) 14 09/02/2008 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX City Council 10. Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute an agreement with the patrons of the Roosevelt Bowl for the provision of support services for Market Night at Perris Hill Park, and ratifying an action taken between April 17, 2008 and the date that this resolution is adopted. (See Attached) (Resolution not available at time of printing.) Ward 2 No Action Taken MOTION: That said resolution be adopted. Approved MOTION: That the matter be continued to Tuesday, September 2,2008. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX LAID OVER FROM AUGUST 4, 2008 Development Services 11. An Ordinance of the City of San Bernardino amending San Bernardino Municipal Code Chapter 12.03 (Right-of-Way Permits, Excavations and Temporary Encroachments), Section 12.030.020 (Definitions) and adding Section 12.03.055 to establish a trench cut moratorium on newly paved public roadways. FINAL READING Approved MOTION: That said ordinance be adopted. Adopted MC-1281 12. Authorize the Director of Development Services to execute Contract Change Order No. One with Nikola Corporation for Sewer and Street Improvements for various streets (SW07-02, SW07-01, SW06-01 & SW06-09), per Project Plan No. 11868. (See Attached) (Cost to the City - $29,653.11 from Sewer Line Construction Fund and Sewer Maintenance Fund) Wards 2,3, & 7 Approved MOTION: That the Director of Development Services be authorized to execute Contract Change Order No. One with Nikola Corporation for Sewer and Street Improvements for various streets (SW07-02, SW07-01, SW06-0l & SW06-09), per Project Plan No. 11868. 13. Authorize the Director of Development Services to execute Contract Change Order No. One with L.A. Builders, Inc. for Segment 3 Sewer Line Relocation 1-215 (SW08-08), per Project Plan No. 11916. (See Attached) (Cost to the City - $354,558.73 from Street Construction Fund) Ward 3 (Item Continued on Next Page) .#~S- q,~ 7 08/18/2008 CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Councilman Dennis Baxter Second Ward Subject: Resolution authorizing the City Manager to execute an Agreement with the Patrons of the Roosevelt Bowl for the provision of support services for Market Night at Perris Hill Park, and ratifying any action taken between Aprill7, 2008 and the date that this Resolution is adopted. Dept: Council Office Date: July 11,2008 MICC Meeting Date: August 4,2008 Synopsis of Previous Council Action: 3/20/06 Council authorized execution ofa two-year Agreement between the City and the Patrons of the Roosevelt Bowl to provide support services for Market Night at Perris Hill Park. \ Recommended motion: Adopt Resolution. ~~ Signature Contact person: Dennis Baxter Second Ward Councilman Supporting data attached: Yes Phone: 384-5222 Ward: 2nd FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Acct. Description) Finance: Council Notes: Agenda Item No. -=#-/0 g -re-OB CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT Subiect: Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the City Manager to execute an Agreement with the Patrons of the Roosevelt Bowl for the provision of support services for Market Night at Perris Hill Park, and ratifying any action taken between April 17,2008 and the date that this Resolution was adopted. Backeround: On March 20, 2006, Council authorized the execution of an Agreement between the City of San Bernardino and the Patrons of the Roosevelt Bowl to provide support services for Market Night at Perris Hill Park. The term of the Agreement was for twenty-four months, beginning April 17,2006, and ending on April 16,2008. Recommendation: Adopt Resolution. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE PATRONS OF THE ROOSEVELT BOWL FOR THE PROVISION OF SUPPORT SERVICES FOR MARKET NIGHT AT PERRIS HILL PARK, AND RATIFYING ANY ACTION TAKEN BETWEEN APRIL 17, 2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That the City Manager is authorized to execute the Agreement between the City of San Bernardino and the Patrons of the Roosevelt Bowl relative to support services for Market Night at Perris Hill Park, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by reference as though fully set forth at length, and SECTION 2. That the implementation date of the Agreement is April 17, 2008; therefore, any action taken between April 17, 2008 and the date that this Resolution is adopted is hereby ratified, and SECTION 3. That the authorization to execute the above referenced Agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this Resolution. III III III III III III III III 11" /0 III O?:,-{8-QZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH THE PATRONS OF THE ROOSEVELT BOWL FOR THE PROVISION OF SUPPORT SERVICES FOR MARKET NIGHT AT PERRIS HILL PARK, AND RATIFYING ANY ACTION TAKEN BETWEEN APRIL 17,2008 AND THE DATE THAT THIS RESOLUTION IS ADOPTED. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the _ day of , 2008, by the following vote, to wit: Council Members: NAYS ABSTAIN ABSENT AYES ESTRADA BAXTER BRINKER DERRY KELLEY JOHNSON McCAMMACK Rachel Clark, City Clerk day of ,2008. The foregoing resolution is hereby approved this Patrick J. Morris, Mayor City of San Bernardino Approved as to Form: AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND THE PATRONS OF THE ROOSEVELT BOWL This Agreement is entered into this day of August, 2008, by and between the City of San Bernardino, a municipal corporation (referred to herein as "City") and Patrons of the Roosevelt Bowl (a 501 (c) (3) non-profit organization (referred to herein as "Organization") (Sometimes jointly referred to herein as 'Parties"). Recitals. Whereas, Organization has requested support services from City in order to assist in defraying the expenses connected with the conduct of events related to their "Market Night" Program at Perris Hill Park (the "Park") for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City-owned facility; and Whereas, the support services proposed to be provided by the City are for a valid municipal purpose, to wit: for the conduct of events related to the Organization's Weekly Market Night Program (the "Program") in Perris Hill Park for the purpose of generating revenues to be used for improvements at the Roosevelt Bowl, a City-owned facility: and Whereas, the Patrons of the Roosevelt Bowl was established for the sole purpose of providing financial, physical, and program support for arts, culture, entertainment, and community activity at the Roosevelt Bowl Outdoor Amphitheater in San Bernardino's Perris Hill Park: and Whereas, the weekly Market Nights at Perris Hill Park will be held during the months of April through September and during the month of December. Now therefore, for the consideration hereinafter set forth , the Parties do hereby agree as follows: 1. The recitals set forth above are hereby repeated and made a part hereof and are hereby deemed to be true. 2. Term. This Agreement is for an initial term commencing April 17, 2008 and ending on April 16,2010. The Agreement may be renewed upon the written concuqence of the Parties / / executed on or before the expiration of the then current terI3J/ Any renewal shall be upon such terms and conditions as shall be mutually agreeable to the Parties and incorporated into the written renewal. 3. In support of the Program, the City hereby agrees to the following: A. Electricity: The City shall be responsible for the cost of electricity necessary to operate approved concessions and facilities of the Program. Approved concessions and facilities shall be those set forth on a list presented to the Director of Parks and Recreation by the Organization at least thirty days prior to the first day of the Program. Separate and apart, Organization shall be responsible for the installation and all costs associated with the operation of any portable electrical system required to provide electricity to any individual vendor. B. Parking/Signage/Barricades: The City shall post, or cause to be posted with the assistance of Organization, in conformance with the law, 25 temporary "No parking after 3:00 p.m. on Tuesday" signs to be placed along the Park roadway on the morning of the Program. The City will barricade, or cause to be barricaded, the Park roadway in conformance with the law, as needed before, during and after the Program. C. Parks and Recreation Storage: The City shall provide space in the former ticket office and adjoining room at Fiscalini Field for storage and the conduct of meetings by Organization; for placement of the temporary electrical system; for storage of cardboard trash containers, for storage of no parking signs and miscellaneous supplies. The space shall be made available until such time as the Patrons/Junior University develop their own on-site storage facility or the expiration ofthis Agreement; whichever occurs first. D. Police: The Police Department shall provide police officers at no cost to the Organization for the Program as in the numbers and under the terms and conditions specified by the Police Chief. E. Street Banners: The City will provide year-round availability of the banner location on Highland Avenue adjacent to the Park (and other locations as available as determined by City). The City's Marketing Public Affairs/Public Information Office will promote the Program in coordination with Patrons of the Roosevelt Bowl. F. Maintenance: City provide an adequate number of bags and cardboard trash receptacles as determined by City to collect the refuse of the attendees which will be emptied by Market Night staff into a 3 cubic yard container with weekly service which the Organization will pay to lease from the City. 3. Accountability and Use of Funds by Organization Organization is solely responsible for the financial support, administration and management of Program. Organization hereby covenants and agrees that one hundred percent (100%) of its weekly net profit (weekly revenue minus weekly expenses) will be committed and spent on improvements to the Roosevelt Bowl. Organization will provide a monthly report to the Director of Parks and Recreation ("Director") listing vendors, attendance, expenses and cash receipts. Additionally, Organization will provide monthly financial statements to the Director, which shall include, but not be limited to, the amount of funds spent by Organization on improvements to the Roosevelt Bowl. Organization further agrees to permit the City, its agents and representatives at reasonable intervals at any and all times upon reasonable advance notice, to inspect all books, records, and accounts for the weekly Market Night events. 4. Indemnity. Organization agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage, based or asserted upon any actual or alleged act or omission of Organization, its employees, agents, concessionaires, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Organization agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such actual or alleged acts or omissions. Organization hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Organization relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement. 5. Insurance. While not restricting or limiting the foregoing, during the term of this Agreement, Organization shall maintain in effect policies of comprehensive public, general, and automobile liability insurance, and all such riders as are related to the operation of the Program, in the amount of $2,000,000 per occurrence combined single limit, naming the City of San Bernardino, its departments, agencies, boards, commISSIOns, elected officials, officers, attorneys, employees, and agents, as additional insureds. The policy shall be without right of subrogation against the City. The insurance provided shall carry the endorsement that "This insurance is primary and noncontributory as respects any loss or liability arising directly or indirectly from the insureds operations." 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 days prior notice to the City. 6. Organization shall obtain from the City and all other appropriate agencies, all such permits and approvals as shall be required under law for the conduct of the Program, or any part thereof. 7. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, Organization shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 8. ASSIGNMENT. Organization shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of the Organization's interest in this Agreement without CITY's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the termination of this Agreement. Regardless of CITY's consent, no subletting or assignment shall release Organization of Organization's obligation to perform all other obligations to be performed by Organization hereunder for the term of this Agreement. 9. Termination. This Agreement may be terminated by either Party upon the giving of thirty (30) days prior written notice. 10. Authorization to Execute. Organization hereby covenants that it has taken all actions necessary to make the adherence to the obligations imposed y this Agreement a binding obligation of the Organization. II. Notices. All notices herein required shall be in writing and delivered in person or sent by certified mail, postage prepaid, addressed as follows: As to City: As to Organization: City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Attn: City Manager Patrons ofthe Roosevelt Bowl 1833 Kenwood Avenue San Bernardino, CA 92404 Attn: President 12. 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. 13. Entire Agreement This Agreement and any documents or instruments referred to herein integrates all terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations and prior writings in respect to the subject matter hereof. In the event of conflict between the terms, conditions or provisions of this Agreement, and any such document or instrument, the terms and conditions of this Agreement shall prevail. 14. Modification This Agreement may be modified or amended only by a written instrument executed by all parties to this Agreement. 15. 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. In Witness Whereof, the parties hereto have executed this Agreement on the day and date first above shown. CITY OF SAN BERNARDINO By: Fred Wilson, City Manager PATRONS OF THE ROOSEVELT BOWL By: President, Patrons of the Roosevelt Bowl Approved as to form: