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HomeMy WebLinkAboutCentral California Baseball Academy - License Agreement Regarding Al Radka ParkAtPru*á bl ("*ncì [ f - 7- Zt' t6 . \1,'62 S LICENSE AGREEMENT REGARDING Al Radka Park This License Agreement ("Agreement") is entered into this 7th day of January 2016, by and between the CITY OF FRESNO, CALIFORNIA, a municipal corporation, through its Parks, After-School, Recreation and Community Service Department ("City"), and Central California Baseball Academy ("CCBA"), a California nonprofit corporation. WITNESS WHEREAS, the City owns and operates Al Radka Park (the "Park"), located at 5897 E. Belmont Avenue, Fresno, California; and WHEREAS, CCBA desires to use the baseball fields of the Park for games and practices throughout the year, from August 1't to July 30th of each"year of this Agreement; and WHEREAS, the City wishes to grant CCBA permission to use the Park in exchange for certain maintenance and improvements to the Park; and NOW, THEREFORE, in consideration of the above recitals, which recitals are contractual in nature, the mutual covenants herein contained and such other and further consideration as is hereby acknowledged, the parties agree as follows: 1. PARTICIPATING AGENCIES AND DESIGNATED CONTACT PERSONS City Representative: Kyle Jeffcoach, Recreation Supervisor ll Parks, After-School, Recreation and Community Services Dickey Youth Development Center 1515 E. Divisadero Street Fresno, C493721 Tel: (559) 621-2900 CCBA Representative: Terrence Frazier,Chief Executive Officer/Founder Central California Baseball Academy PO Box 26521 Fresno, CA93720 Tel: (559) 800-0512 2.ROLES. CONTRIBUTIONS AND RESPONSIBILITIES A. The City shall: Reserve the baseball fields for CCBA on a priority basis from August 1st to July 30th each year of this Agreement. Other groups wishing to use the field must contact the PARCS Department to ensure that there are no CCBA baseball functions scheduled during the time that the other group wishes to use the field. Allow CCBA to sell banners to hang around the outfield fences of the baseball fields in order to fund raise for its leagrre. Signs shall adhere to City sign ordinances. City reserves the right to approve the banners before they are placed at the park. Advertising shall be limited to commercial advertising involving offering of goods or services for sale, consistent with Constitutional and local law requirements and any and all policies, practices and guidelines promulgated by the City as amended from time to time. Allow CCBA to have the right to operate the snack bar and concessions, and keep the profits for the same in order to defer its costs. Provide janitorial and restroom materials, building keys, trash bags and trash cans. The City will continue to mow the Al Radka Park grass areas and maintain the irrigation system. Train and indoctrinate CCBA personnel in the City of Fresno Adopt-A-Park Program. Monitor the park adoption of Al Radka Park by CCBA and make sure that all outlined commitments are being met. Allow CCBA to charge admission into the baseball fields during tournaments. CCBA is not given permission to charge patrons to enter the Al Radka Park for recreational use. B.CCBA shall: Pay the City of Fresno PARCS Department $2,000.00 per year, by July 1 of each year for the annual field reservation fee, which will run from August 1, 2015, thru July 30, 2016, and August 1 , 2016, thru July 30, 2017 . The Agreement is for two years in duration. The annual field reservation fee will be used to contribute towards Al Radka Park repairs and maintenance. Participate in the City of Fresno Adopt-A-Park Program and complete necessary monthly papenruork. They will adopt Al Radka Park for the duration of two years, from August 1, 2015 through July 30, 2017. CCBA will abide by the Adopt-A-Park responsibilities and duties, waiver agreements and reporting of volunteer information to PARCS Staff. CCBA will provide the baseball field landscaping at Al Radka Park, including edging, weeding, low limb pruning, graffiti removal, trash pickup and reporting of additional Al Radka Park maintenance issues to PARCS Staff. CCBA will perform minor repairs to ball field back stops, dugouts and base pegs. Provide and maintain the necessary equipment for the baseball field operations and replace the equipment as needed. This would include hoses for watering, field rakes, draggers for infield dirt mounds, pitching rubbers, field chalking, and obtaining field dirt (for mounds and batter boxes). Provide covered seating areas for fans and covered dugouts with tarps within the two year duration of the contract. Provide baseball participation scholarships for underprivileged children in the Fresno community. Maintain insurance, naming the City of Fresno as an additional insured, and will maintain additional property insurance covering items kept at the fields. 3. TERM AND EFFECTIVENESS This Agreement shall be effective upon its complete execution by the parties' authorized agents and shall remain in effectfor an initial term running through July 30th, 2017 (two years). Thereafter, the parties may negotiate an extension of this Agreement for up to three years. 4. DEFAULT. TERMINATION Should CCBA default in the performance of any of the terms and conditions of this Agreement and fail to commence a cure thereof within thirty (30) business days after CCBA has been served with written notice of such default, the City may terminate this Agreement. Notwithstanding the foregoing, if the breach by CCBA or any of its officers, directors, employees or agents is such that it threatens the health, welfare, or safety of any person or property, then City may, in its discretion, require that such breach be cured in less than thirty (30) business days or immediately. City shall be in default under this Agreement if City fails to perform or fulfill any term, covenant or condition contained in this Agreement and City fails to commence a cure thereof within thirty (30) business days after City has been served with written notice of such default. Nothing herein shall be construed as excusing either party from diligently commencing and pursuing a cure within a lesser time if reasonably possible. Upon any such termination, all rights and obligations of each party under this Agreement shall cease as of the date of termination, except for those specific obligations that shall survive termination as set forth herein. ln addition to the right to terminate this Agreement upon CCBA's default, the City shall have the right to terminate part or all of this Agreement if the facilities that are the subject of this Agreement are required for public necessity or emergency use. 5. NON-EXCLUSIVE USE CCBA acknowledges that the baseball field is one component in Al Radka Park, a public park owned and operated by the City. City shall have the right to use or permit the use of any portion of the park to any person, firm or other entity regardless of the nature of the use of such other space, in accordance with the terms of this Agreement. CCBA agrees to take reasonable efforts to minimize any disturbance to the operation and/or other uses of the park by City and the public. 6. COMPLIANCE WITH GOVERNING LAW Each party shall comply with all federal, state, and local laws, rules, and regulations. No party in its pedormance 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. 7. 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 CCBA. 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 for their 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 CCBA will not for any purpose be considered employees or agents of the City. CCBA 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 superyision, daily direction and control, payment of salary (including withholding of income taxes and social security), disability benefits and the like, as applicable. The City and CCBA agree and acknowledge that their relationship is strictly and solely that of an independent contractor to each other. The City's 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 CCBA. CCBA agrees and acknowledges that its 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 pedormance 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. 8. IN DEMN IFICATION To the furthest extent allowed by law, CCBA 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, forfeitures, 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, CCBA 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 performance of this Agreement. CCBA'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 CCBA should subcontract all or any portion of the work to be performed under this Agreement, CCBA 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 9: 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," "property 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," 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. Workers' Compensation insurance as required by the State of California and Employer's Liability lnsurance. Educators Legal Liability or a Professional Liability (Abuse & Molestation) lnsurance that insures against liability arising out of the bodily injury, personal injury, and third-pady property damage occurring because of the wrongful or negligent acts attributable to the institution. This coverage should protect against a wide range of potential claims, including but not limited to athletics, alcohol, campus crime, sexual molestation and other sexual misconducts. MINIMUM LIMITS OF INSURANCE USER, or any party the USER 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: b c. d (i) (ii) (iii) (iv) $1,000,000 per occurrence for bodily injury and property damage; $1,000,000 per occurrence for personal and advertising injury; $2,000,000 aggregate for products and completed operations; and, $2,000,000 general aggregate applying separately to the work performed under the Agreement. 6 2. 3. 4. COM M ERCIAL AUTOMOBILE LIABI LITY: $1,000,000 per accident for bodily injury and property damage. WORKERS' COMPENSATION INSURANCE as required by the State of California with statutory limits. 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. 5. Educators Leqal Liabilitv (ELL) or Professional Liabilitv (Abuse & Molestation): (i) ( ii) $1,000,000 per claim/occurrence; and, $2,000,000 policy aggregate. UMBRELLA OR EXCESS INSURANCE ln the event USER 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 USER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and USER shall also be responsible for payment of any self- insured retentions. Any deductibles or self-insured retentions must be declared to on the Certificate of lnsurance, and approved by, the CITY'S Risk Manager or his/her designee. At the option of the CITY'S Risk Manager or his/her designee, either: (i) The insurer shall reduce or eliminate such deductibles or self- insured retentions as respects CITY, its officers, officials, employees, agents and volunteers; or (ii) USER shall provide a financial guarantee, satisfactory to CITY'S Risk Manager or his/her designee, guaranteeing payment of losses and related 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/ENDORSEMENTS are to contain, or be endorsed to contain, the following provisions: L CITY, its officers, officials, employees, agents and volunteers are to be covered as additional insureds. USER 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 1010 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 20 10 11 85. 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. For any claims relating to this Agreement, USER'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 USER'S insurance and shall not contribute with it. USER shall establish primary and non-contributory status by using ISO Form CG2001 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 policv is to contain, or be endorsed to contain, the following provision: USER and its insurer shall waive any right of subrogation against CITY, its officers, officials, employees, agents and volunteers. is written on a claims-made form: The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by USER. lnsurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the Agreement work or termination of the Agreement, whichever occurs first, of, in the alternative, the policy shall be endorsed to provide not less than a five (5) year discovery period. lf coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date 2. 3. 1. 2. 3. of the Agreement or the commencement of work by USER, USER must purchase "extended reporting" coverage for a minimum of five (5) years completion of the Agreement work or termination of the Agreement, whichever occurs first. 4. A copy of the claims reporting requirements must be submitted to CITY for review. 5. These requirements shall survive expiration or termination of the Agreement. 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 certified mail, return receipt requested, has been given to CITY. USER 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, USER 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, USER 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. VERIFICAT¡ON OF COVERAGE USER shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required hereunder. All ceftificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or his/her 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, USER 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 undenruriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. 10. ATTORNEY'S FEES lf a party 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 12. proceeding or action shall be entitled to recover from the other party its/their reasonable attorney's fees and legal expenses. 11. 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 exhibit/attachment. Furthermore, any terms or conditions contained 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. NOTICES Any notice required or intended to be given to a party 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 service, 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 CCBA 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. 13. BINDING Once this Agreement is signed by all the parlies, 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. 14. 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. 15. 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. 10 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. The payment of any fee or compensation or performance of any obligation hereunder by either pafty 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. 16. 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. 17. 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. 18. 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. 19. 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. 20. REPRESENTATIONSANDWARRANTIES CCBA represents and warrants that it is a duly authorized and existing California nonprofit corporation in good standing. Each party hereby represents and warrants to the other party, and agrees that it has the full power and authority to enter into this Agreement and perform each of its obligations hereunder, and it is legally authorized 11 lN WITNESS THEREOF, the parties have caused their authorized agents to execute this MOU: By CITY OF FRESNO, a California municipal corporation Manuel Mollinedo, Director Parks, After-school, Recreation and Community Services ATTEST: YVONNE SPENCE, CMC City Clerk APPROVED AS TO FORM: DOUGLAS T, SLOAN City Attorney Central California Baseball Academy, a California nonprofit corporation CEO/Founder (lf corporation or LLC, Board Chair, Pres. or Vice Pres.) By:',2 Name: Title: Secretary or Assistant Secretary) APPROVED AS TO FORM Name: Title: By Deputy City Attorney 13