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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.
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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.
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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
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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
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