HomeMy WebLinkAboutFresno Senior Softball League - Use of Quigley Park/ H o'/L
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LICENSE AGREEMENT
FRESNO SENIOR SOFTBALL LEAGUE AND QUIGLEY PARK
This License Agreement ("Agreement") is entered into this 25th day of Februa ry 2016,by and between the CITY OF FRESNO, CALIFORNIA, a municipal corporation,
through its Parks, After School, Recreation and Community Service Department
("city"), and Fresno senior softball League ("FSSL"), a non-profit organization.
WITNESSETH:
WHEREAS, FSSL operates Quigley Park softball field located at B0B W.
Dakota, Fresno, California; and
WHEREAS, the City owns and operates Quigley park (the "park,'); and
WHEREAS, FSSL desires to use the softball diamond of the Park for league
games and practices during the season from January 1 to December 31 of each year
of this Agreement; and
WHEREAS, the City desires to grant FSSL permission to use the Park in
exchange for certain maintenance and improvements to the park.
NOW, THEREFORE, in consideration of the above recitals, which recitals are
contractual in nature, the mutual covenants herein contained and such other and
further conside.ration as is hereby acknowledged, the parties agree asfollows:
A. PARTICIPATING AGENCIES AND DESIGNATED CONTACT PERSONS
City Representative:Kyle Jeffcoach, Community Recreation Supervisor ll
1515 E. Divisadero Street
Fresno, CA93721
Tel: (559) 621-2900
FSSL Representative: Mike Kludjian
President
Fresno Senior Softball League
4958 N. Maroa
Fresno, CA 93704
Tel: (559) 298-5722
B. ROLES,CONTRIBUTIONS.ANDRESPONSIBILITIES
1. CITY
a. The City will have the Quigley Park softball fields reserved for its
use on a full-time basis. The city of Fresno PARCS Department
will coordinate thru FSSL with all other groups wishing to use the
field, but those other groups wishing to use the field must
contact the PARCS Department to ensure that there are no FSSL
league functions scheduled during that time that another group
wishes to use the field. FSSL will work with all groups wishing to
use the field so that mutually available times can be scheduled for
use by other groups when FSSL is not using the fields. FSSL shall
have access to play under the illuminated night lights during
evening softball functions.
b. The City of Fresno will allow FSSL to sell concessions at Quigley
Park during their softball games, in compliance with county Health
code regulations. The funds earned from the concession stand will
help offset the ongoing maintenance of the Quigley park softbail
diamond.
2. FSSL:
a. Shall run and operate FSSL senior softball leagues.b. Shall hire and provide umpires.c. Shall mow the softball field weekly.d. Shall drag, chalk, and water the softball field each day for games.e. Shall maintain the softball field for cleanliness and empty all trash
f. 3i:i clean and maintain all sprinkler heads on the softbattfietd.g. Shall maintain and paint the bleachers.h. Shall pay the City of Fresno $3,000 annually for use of the field,
and shall be used for park improvement at Quigley park
C. EFFECTIVENESS. DURATION AND TERMINATION
This Agreement shall be effective upon its complete execution by the parties'
authorized agents and shall remain in effect for an initial term running through
February 1, 2021. Thereafter, the parties may negotiate an extension of fl-ris
Agreement for up to five (5) years. Either party may at any time terminate this
Agreement with cause upon written notice to the other party following the other
party's failure to reasonably cure an event of non-performance hereunder following
thirty (30) days written notice thereof. Termination shall be effective as of the daté
specified in said notice of termination. Upon such termination, all rights and
obligations of each party under this Agreement shall cease as of the effective date,
except for those specific obligations that shall survive termination as set forlh herein.
D. COMPLIANCE WITH GOVERNING LAW
Each party shall comply with all federal, state and local laws, rules and regulations in
its pursuit hereof. No party in its performance of this Agreement shall employ
discriminatory practices on the basis of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, marital
status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran
of the Vietnam era.
E. CAPACITY OF THE PARTIES
Each party is acting in an independent capacity. Nothing in this Agreement and
nothing in the course of dealings between the parties hereunder shall be deemed to
create any fiduciary relationship, trust, partnership, joint venture, agency or
employment relationship, jointly and severally.
ln addition and without limitation, each party shall be solely responsible for all
matters relating to payment of its employees, including, but not limited to,compliance with applicable social security withholding, workers' compensation
insurance, benefits and all other regulations governing such matters. personnel
supplied by City will not for any purpose be considered employees or agents of FSSL.
The City assumes full responsibility for the actions of such personnel while they are
performing services pursuant to this Agreement, and shall be solely responsible fortheir supervision, daily direction and control, payment of salary (including
withholding of income taxes and social security), disability benefits and the like-,
as applicable. Conversely, personnel supplied by the FSSL will not for any purpose
be considered employees or agents of the City. FSSL assumes full responsibility for
the actions of such personnel while they are performing services pursuant to this
Agreement, and shall be solely responsible for their supervision, daily direction and
control, payment of salary (including withholding of income taxes and social security),
disability benefíts and the like, as applicable.
The City and FSSL agree and acknowledge that their relationship is stricly and
solely that of an independent contractor to each other. The City's employees ánd/or
agents are not entitled to any employee benefits or insurance, including without
limitation any health care, worker's compensation, unemployment or disability
benefits, to be provided by FSSL. FSSL agrees and acknowledges that it;
employees and/or agents are not entitled to any employee benefits or insurance,
including without limitation any health care, worker's compensation, unemployment
or disability benefits, to be provided by the City.
The parties further agree and acknowledge that each party is solely responsible
for determining the method and means by which it will fulfill its obligations hereunder.
Each shall be solely responsible for payment of all sales, use, or other taxes assessed
against or associated with the performance of each party's respective obligations or
on the exercise of their rights under this Agreement, including without limitation
income, payroll or employment-related taxes and payments.
Neither party shall engage any person or entity to serve in any capacity, or incur
any expense or obligation on behalf of the other without the prior written consent
of both parties.
F. INDEMNIFICATION
To the fudhest extent allowed by law, FSSL shall indemnify, hold harmless and defend
City and each of its officers, officials, employees, agents and volunteers from any and
all loss, liability, fines, penalties, fodeitures, costs and damages (whether in contract,
tort or strict liability, including but not limited to personal injury, death at any time and
property damage) incurred by City, FSSL or any other person, and from any and all
claims, demands and actions in law or equity (including attorney's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly out of performañce ofthis Agreement. FSSL's obligations under the preceding sentence shall apply
regardless of whether City or any of its officers, officials, employees, agents or
volunteers are negligent, but shall not apply to any loss, liability, fines, penalties,
forfeitures, costs or damages caused solely by the gross negligence, or caused by the
willful misconduct, of City or any of its officers, officials, employees, agents or
volunteers.
lf FSSL should subcontract all or any portion of the work to be performed under this
Agreement, FSSL shall require each subcontractor to indemnify, hold harmless and
defend City and each of its officers, officials, employees, agents and volunteers in
accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
G. INSURANCE
Coverage shall be at least as broad as:
a. The most current version of lnsurance Services Office (lSO) Commercial
General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage
for "bodily injury," "propefty damage" and "personal and advertising injury"
with coverage for premises and operations (including the use of owned
and non-owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity obligations
under the Agreement) with limits of liability not less than those set forth
under "Minimum Limits of lnsurance."
b. The most current version of ISO *Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance
or use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall
provide coverage for all owned, hired, and non-owned automobiles or
other licensed vehicles (Code 1- Any Auto). lf personal automobile
coverage is used, the City, its officers, officials, employees, agents, and
volunteers are to be listed as additional insureds.
c. Workers' Compensation insurance as required by the State of California
and Employer's Liability lnsurance.
MINIMUM LIMITS OF INSURANCE
FSSL, or any party the FSSL subcontracts with, shall maintain limits of liability of not
less than those set forth below. However, insurance limits available to City, its officers,
officials, employees, agents, and volunteers as additional insureds, shall be the greater
of the minimum limits specified herein or the full limit of any insurance proceeds
available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;(ii) $1,000,000 per occurrence for personal and advertising injury;(¡ii) $2,000,000 aggregate for products and compreted operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;(ii) $1,000,000 disease each employee; and,(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
ln the event FSSL purchases an Umbrella or Excess insurance policy(ies) to meet the
"Minimum Limits of lnsurance," this insurance policy(ies) shall "follow form" and afford
no less coverage than the primary insurance policy(ies). ln addition, such Umbrella or
Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF.INSURED RETENTIONS
FSSL shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and FSSL shall also be responsible for payment of any self-
insured retentions. Any deductibles or self-insured retentions must be declared to on
the Ceftificate of lnsurance, and approved by, the City's Risk Manager or his/her
designee. At the option of the city's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-
insured retentions as respects city, its officers, officiars, emproyees,
agents, and volunteers; or
(i¡) FSSL shall provide a financial guarantee, satisfactory to City's Risk
Manager or designee, guaranteeing payment of losses and rerated
investigations, claim administration and defense expenses. At no
time shall city be responsible for the payment of any deductibles or
self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEM ENTS
,re a contain, or be
endorsed to contain, the following provisions:
1. City, its officers, officials, employees, agents, and volunteers are to be
covered as additional insureds. FSSL shall establish additional insured
status for the City and for all ongoing and completed operations by use of
ISO Form CG 20 10 11 85 or both CG 20 10 10 01 and CG 20 37 10 01 or
by an executed manuscript insurance company endorsement providing
additional insured status as broad as that contained in ISO Form
cG 2010 11 85.
2. The coverage shall contain no special limitations on the scope of
protection afforded to City, its officers, officials, employees, agents, and
volunteers. Any available insurance proceeds in excess of the specified
minimum limits and coverage shall be available to the Additional lnsured.
3. For any claims relating to this Agreement, FSSL'S insurance coverage
shall be primary insurance with respect to the City, its officers, officials,
employees, agents, and volunteers. Any insurance or self-insurance
maintained by the City, its officers, officials, employees, agents, and
volunteers shall be excess of FSSL'S insurance and shall not contribute
with it. FSSL shall establish primary and non-contributory status by using
ISO Form CG 20 01 04 13 or by an executed manuscript insurance
company endorsement that provides primary and non-contributory status
as broad as that contained in ISO Form CG 20 01 04 13.
The Workers' Compensation insurance policy is to contain, or be endorsed to contain,
the following provision: FSSL and its insurer shall waive any right of subrogation
against City, its officers, officials, employees, agents, and volunteers.
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice by cerlified mail, return receipt requested, has been
given to City. FSSL is also responsible for providing written notice to the City under the
same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice
of cancellation, non-renewal, or reduction in coverage or in limits, FSSL shall furnish
City with a new certificate and applicable endorsements for such policy(ies). ln the
event any policy is due to expire during the work to be performed for City, FSSL shall
provide a new certificate, and applicable endorsements, evidencing renewal of such
policy not less than fifteen (15) calendar days prior to the expiration date of the expiring
policy.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated
limits.
VERIFICATION OF COVERAGE
FSSL shall furnish City with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be
received and approved by the City' Risk Manager or designee prior to City's execution
of the Agreement and before work commences. All non-lSO endorsements amending
policy coverage shall be executed by a licensed and authorized agent or broker. Upon
request of City, FSSL shall immediately furnish City with a complete copy of any
insurance policy required under this Agreement, including all endorsements, with said
copy certified by the unden¡vriter to be a true and correct copy of the original policy.
This requirement shall survive expiration or termination of this Agreement.
H. ATTORNEY'S FEES
lf a pady is required to commence any proceeding or legal action to enforce or
interpret any term, covenant, or condition of this Agreement, the prevailing party in
such proceeding or action shall be entitled to recover from the other party its/their
reasonable attorney's fees and legal expenses.
I. PRECEDENCE OF DOCUMENTS
ln the event of any conflict between the body of this Agreement and any
exhibit/attachment hereto, the terms and conditions of the body of this Agreement
shall control and take precedence over terms and conditions expressed within the
exhibiUattachment. Furthermore, any terms or conditions coritained within any
exhibit/attachment hereto which purport to modify the allocation of responsibility or
liability between the parties, provided for within the body of this Agreement, shall be
null and void.
J. NOTICES
Any notice required or intended to be given to a pady under the terms of this
Agreement shall be in writing and shall be deemed to be duly delivered the earlier
of (a) actual receipt by personal delivery to the representative (as defined herein),
as the case may be, or in lieu of such personal seryice, by way of Federal
Express or other similar courier addressed to such party at the appropriate address
set forth herein, (b) the date of receipt by facsimile to the City Representative or
the FSSL Representative, or (c) three (3) business days after the date of mailing
(postage pre-paid return receipt requested). Either party may change its address for
the purpose of this Paragraph by giving written notice of such change to the other.
K. BINDING
Once this Agreement is signed by all the parties, it shall be binding upon, and
shall inure to the benefit of, the parties, and each party's respective heirs,
successors, assigns, transferees, agents, servants, employees, and representatives.
L. ASSIGNMENT
There shall be no assignment by any party of its rights or obligations under this
Agreement without the prior written approval of the other party. Any attempted
assignment by a party, its successors or assigns, shall be null and void unless
approved in writing by the other party.
M. WAIVER
The waiver by any party of a breach by the other of any provision of this
Agreement shall not constitute a continuing waiver or a waiver of any subsequent
breach of either the same or a different provision of this Agreement.
No provisions of this Agreement may be waived unless in writing and approved by
and signed by all parties to this Agreement. Waiver of any one provision herein shall
not be deemed to be a waiver of any other provision herein.
No action or omission by either party shall constitute a breach of this Agreement
unless the injured party first notifies the other party of the purported breach in
writing setting forth the alleged breach or default and said party does not cure the
same within a reasonable period of time. The payment of any fee or compensation or
performance of any obligation hereunder by either parly shall not constitute a waiver
of any breach by the other party or of any of the rights and remedies which either
party may have as a result of such breach. No waiver by either party of breach of
the Agreement shall be implied from any failure by the other party to take action on
account of such breach if such breach persists or is repeated. Waivers by either
party of any covenant, term or condition contained herein shall not be construed as a
waiver of any subsequent breach of the same covenant, term or condition.
N. GOVERNING LAW AND VENUE
This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of California. Venue for purposes of the filing of any
action regarding the enforcement or interpretation of this Agreement and any rights
and duties hereunder shall be Fresno, California.
O. HEADINGS
The section headings in this Agreement are for convenience and reference only
and shall not be construed or held in any way to explain, modify, or add to the
interpretation or meaning of the provisions of this Agreement.
P. SEVERABILITY
The provisions of this Agreement are severable. The invalidity or unenforceability of
any one provision in this Agreement shall not affect the other provisions.
O. INTERPRETATION
The parties acknowledge that this Agreement in its final form is the result of the
combined efforts of the parties and that, should any provision of this Agreement
be found to be ambiguous in any way, such ambiguity shall not be resolved by
construing this Agreement in favor or against any party, but rather by construing
the terms in accordance with their generally accepted meaning.
R. ENTIRE AGREEMENT
It is mutually understood and agreed that the foregoing along with any attached
Exhibits constitutes the entire Agreement between the parties. Any modifications or
amendments to this Agreement must be in writing signed by an authorized agent
of each party.
THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURES
APPEAR ON NEXT PAGE.
lN WITNESS THEREOF, the parties have caused their authorized agents to
execute this MOU:
FSSL: CITY:
FRESNO SENIOR SOFTBALL LEAGUE CITY OF FRESNO,
A Non-Profit Organization a Municipal Corporation
,r By:
Mike Kludjian, President
PARCS
ATTEST:
YVONNE SPENCE, CMC
City Clerk
APPROVED AS TO FORM:
DOUGLAS T. SLOAN
zlzzlt Llke Pursell, FSSL Secretary
By:
City Attor
Deputy City Attorney