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HomeMy WebLinkAboutFresno Senior Softball League - Use of Quigley Park/ H o'/L zJz':ltL 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