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2008/02/12 City Council Resolution 2008-24RESOLUTION NO. 2008 -24 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK AUTHORIZING AND APPROVING A REVOCABLE LICENSE AGREEMENT FOR USE OF CITY FACILITIES WHEREAS, City owns the land where Benicia Park, Alicia Park and Colegio Vista Park are located; and WHEREAS, the Cal Ripken/Babe Ruth Baseball League has established a history of successful performance in its maintenance of Benicia Park and Alicia Park baseball fields in past years. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Rohnert Park that it does hereby authorize and approve a Revocable License Agreement For Use Of City Facilities between the City of Rohnert Park and the Cal Ripken/Babe Ruth Baseball League for the use and maintenance of Benicia Park, Alicia Park and Colegio Vista Park baseball fields. BE IT FURTHER RESOLVED that the City Manager is hereby authorized and directed to execute this agreement in substantially similar form to the attached agreement for and on behalf of the City of Rohnert Park. DULY AND REGULARLY ADOPTED this 12th day of February; 2008. CITY OF ROHNERT PARK /990HERT PgRk avor ATTEST: ��aN City Clerk H ) -q" BREEZE: AYE SMITH: AYE STAFFORD: AYE VIDAK- MARTINEZ: AYE MACKENZIE: AYE AYES: (5) NOES: (0) ABSENT: (0) ABSTAIN: (0) REVOCABLE LICENSE AGREEMENT FOR USE OF CITY FACILITIES This Revocable License Agreement For Use Of City Facilities ( "Agreement "), is made and entered into on , by and between the City of Rohnert Park, a political subdivision of the State of California, hereinafter called "City ", and Cal RipkenBabe Ruth Baseball League, an athletic club, hereinafter called "League ". I. RECITALS WHEREAS, City owns the land where Benicia Park, Alicia Park and Colegio Vista Park are located; and WHEREAS, League has established a history of successful performance in its maintenance of Benicia Park and Alicia Park baseball fields in past years. NOW, THEREFORE, in consideration of the premises and of the agreements of the respective parties herein set forth, it is mutually agreed as follows: II. AGREEMENT License. City gives its permission, subject to all the terms and conditions of this Agreement, to use that portion of City real property described in Section 2 below. 2. Premises. League is hereby permitted to use the following property: Benicia Park Baseball Field, Alicia Park Baseball Field and Colegio Vista Park Baseball Field (collectively, the "Fields "), including the bleachers, concession stands and parking lots. 3. Non - Exclusive License. The license herein granted is non - exclusive. City continues to control the premises including, without limitation, leasing, sub- leasing and granting of additional licenses. 4. Term. The initial term of this Agreement ( "initial term ") shall commence on January 1, 2008, and expire at midnight on December 31, 2008, unless earlier terminated in accordance with Sections 13, 16.d, 19 and 21 below. 5. Fees. League is required to pay facility fees approved by the City Council and listed in City's current fee schedule. 6. Use. The premises shall be used as a recreation facility and League shall not have the privilege of using the premises for any other purpose without the prior written consent of City. Scheduling of events for the Fields shall be at the discretion of City. The Fields must remain open to public access when not being used by League and may not be locked or closed without written permission from City. 1060551v5A 80078/0001 Page 1 of 10 7. Maintenance. a. League shall provide all regular maintenance to the Fields, including, without limitation, the infield and outfield as designated below. The Fields will be maintained by League to the following maintenance standards: (1) League will mow the infield grass on a year -round basis. Turf shall be mowed at a minimum of twice per month from February through November and once per month December through January as weather permits. Grass will be cut to a height that facilitates healthy turf growth and soil moisture retention. The infield grass will not be cut to a height of less than three (3) inches. (2) Infield mixture will be kept level and free of small stones, holes, weeds, and debris. League will drag and prepare the infield for play each day. . (3) Bases will be installed properly. The ground around the bases shall be kept flat and safe with no protruding spikes or pegs. (4) The home plate area shall be a flat surface with no raised or protruding edges. The batter's box must be kept level and not allowed to develop deep holes. (5) The pitcher's rubber and surrounding area should be kept in good repair. Holes should not be allowed to develop in front of the pitcher's rubber. (6) The "Out of Play" areas shall be clearly defined. (7) Anyone applying herbicide to the Fields must hold a valid California Department of Pesticide Regulation Qualified Applicator Certificate or License. (8) League will maintain the infield irrigation system at Benicia Park from supply box at infield edge throughout infield. Maintenance will include but not be limited to repair or replacement of broken or leaking irrigation lines, sprinkler heads, and quick connect couplers in the infield. League will provide all necessary irrigation parts for repair on Benicia Park infield. This requirement will not apply to Alicia Park or Colegio Vista Park fields. 1060551v5A 80078/0001 Page 2 of 10 (9) League will mow the outfield grass at Benicia and Alicia Parks on a year -round basis. Turf shall be mowed at a minimum of twice per month from February through November and once per month December through January as weather permits. Grass will be cut to a height that facilitates healthy turf growth and soil moisture retention. The outfield grass will not be cut to a height of less than three (3) inches. (a) The Fields shall be inspected on a regular basis by City Public Works or Recreation Department. League shall be responsible to repair all defects identified immediately. (b) League shall have no obligation to maintain the bleachers. (c) Prior to League's making any improvement to the licensed premises, League must submit improvement plans for City's review and receive approval in writing. Any such improvement placed on the premises shall become the property of City. (d) League will make field playability determination each day and post the current field condition on League's website and list on League's field hotline. (e) The automated watering scheduling for all Fields will be maintained by the City. 8. Compliance with Laws. League has represented to City and hereby warrants that League has complied with all laws applicable to the acceptance and use of the license herein granted. League shall observe and comply at all times with all applicable federal, state and City statutes, and ordinances, rules, regulations, directives, and orders of governmental agencies now in force or which may hereinafter be in force relating to or affecting the use of the license herein granted. 9. Waste; Nuisance. League shall not commit, suffer, or permit the commission of others of. (i) any waste or nuisance on the premises; (ii) any action or use of the premises by any unauthorized person; or (iii) any action on the premises in violation of any laws or ordinances. 10. Ins ep ction. City shall be permitted to enter and inspect the licensed premises at any and all times. 106055 1 v5A 80078/0001 Page 3 of 10 11. Extent of Grant of License. This Agreement and the license herein granted are valid only to the extent of City's jurisdiction as a landowner or tenant of the premises. Acquisition of any other necessary permits or entitlement for use are the responsibility of League. NOTHING CONTAINED IN THIS AGREEMENT SHALL BE CONSTRUED AS A RELINQUISHMENT OF ANY RIGHTS NOW HELD BY CITY. 12. Deposit Refund. League agrees that the deposit, if any shall be required, made upon execution by League of this Agreement, shall not be refundable for any reason unless City, in its absolute discretion, determines such a refund, in whole or part, to be warranted. 13. Bankruptcy. In the event of bankruptcy of League or writ of attachment of execution against League, this Agreement shall, at the option of City, immediately terminate. 14. Nonliability of City. City, its officers, agents, and employees shall not be liable to League for any loss or damage to League or League's property from any cause. League expressly waives all claims against City, its officers, agents, and employees, unless such injury or damage is caused by or due to the sole negligence or willful misconduct of City, its officers, agents, and employees. 15. Indemnification. League agrees to accept all responsibility for loss or damage to any person or entity, including, but not limited to, City, and to defend, indemnify, hold harmless, reimburse and release City, its officers, agents, and employees, from and including, but not limited to, attorneys' fees and the cost of litigation incurred in the defense of claims as to which this indemnity applies or incurred in an action by City to enforce the indemnity provisions herein, whether arising from the personal injury, property damage or economic loss of any type, that may be asserted by any person or entity, including League, arising out of or in connection with the performance of League hereunder or the use of the premises or surrounding City property hereunder (regardless of whether such use is authorized by this License), whether or not there is concurrent negligence on the part of City, but, to the extent required by law, excluding liability due to the sole or active negligence or due to the willful misconduct of City. If there is a possible obligation to indemnify, League's duty to defend exists regardless of whether it is ultimately determined that there is not a duty to indemnify. City shall have the right to select its own legal counsel at the expense of League, subject to League's approval, which approval shall not be unreasonably withheld. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for League or its agents under workers' compensation acts, disability benefits acts, or other employee benefit acts. 1060551v5A 80078/0001 Page 4 of 10 1.6. Insurance. With respect to performance of work under this Agreement, League shall maintain and shall require of its subcontracts, consultants, and other agents to maintain, insurance as described below: a. General Liability Insurance. Commercial general liability insurance covering bodily injury and property damage using an occurrence policy form, in an amount no less than One Million Dollars ($1,000,000.00) combined single limit for each occurrence. Said commercial general liability insurance policy shall either be endorsed with the following specific language or contain equivalent language in the policy. (1) The City of Rohnert Park, including its officers and employees, is named as additional insured for all liability arising out of the operations by or on behalf of the named insured in the performance of this Agreement. (2) The inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, and the coverage afforded shall apply as though separate policies had been issued to each insured, but the inclusion of more than one insured shall not operate to increase limits of the company's liability. (3) The insurance provided herein is primary coverage to the City of Rohnert Park with respect to any insurance or self - insurance programs maintained by City. (4) This policy shall not be cancelled or materially changed without first giving thirty (30) days' prior written notice to City. This policy shall not be cancelled or materially changed without first giving thirty (30) days' prior written notice to the City of Rohnert Park. b. Documentation. The following documentation shall be submitted to City: (1) Properly executed Certificates of Insurance clearly evidencing all coverages, limits, and endorsements required above. Said Certificates shall be submitted prior to the execution of this Agreement. League agrees to maintain current Certificates of Insurance evidencing the above- required coverages, limits, and endorsements on file with City for the duration of this Agreement. 1060551v5A 80078/0001 Page 5 of 10 (2) Signed copies of the specified endorsements for each policy. Said endorsement copies shall be submitted within thirty (30) days of execution of this Agreement. (3) Upon City's written request, certified copies of the insurance policies. Said policy copies shall be submitted within thirty (30) days of City's request. (4) After the Agreement has been signed, signed Certificates of Insurance shall be submitted for any renewal or replacement of a policy that already exists, at least ten (10) days before expiration or other termination of the existing policy. C. Policy Obligations. Consultant's indemnity and other obligations shall not be limited to the foregoing insurance requirements. d. Material Breach. If League, for any reason, fails to maintain insurance coverage, which is required pursuant to this Agreement, the same shall be deemed a material breach of this Agreement. City, in its sole option, may terminate this Agreement and obtain damages from League resulting from said breach. Alternatively, City may purchase such required insurance coverage, and without further notice to League, City may deduct from sums due to League any premium costs advanced by City for such insurance. These remedies shall be in addition to any other remedies available to City. 17. Liability for Loss or Damage to City Property. League shall be liable to City for any loss or damage to the premises arising from or in connection with League's performance hereunder or any of its officers, agents, and employees. 18. Nondiscrimination. League shall comply with all applicable federal, state, and local laws, rules, and regulations in regard to nondiscrimination in employment because of race, color, ancestry, national origin, religion, sex, marital status, age, medical condition, pregnancy, disability, sexual orientation or other prohibited basis. All nondiscrimination rules or regulations required by law to be included in this Agreement are incorporated herein by this reference. 19. Termination by City. City may terminate this Agreement for any reason whatsoever upon thirty (30) days' prior written notice to League. 20. License is Personal. The license herein granted is personal to League and no right hereunder may be assigned, sublet, or otherwise transferred in 1060551v5A 80078/0001 Page 6 of 10 whole or in part without the prior written consent of City, and any attempt to assign, sublet or transfer shall be of no force or effect whatsoever unless and until City shall have given its written consent thereto. City may withhold its consent for any reason. 21. Provisions are Conditions of Use /Occupancy. Each provision of this Agreement shall be.deemed a condition of the right of League to use or continue to occupy the premises. Notwithstanding anything stated to the contrary herein, if League fails to perform any provision of this Agreement at the time and in the manner herein provided, City may at its option immediately terminate this Agreement; this right to terminate shall be cumulative to any other legal right or remedy available to City. 22. League to Act in Independent Capacity. League, its officers, agents and employees shall act in an independent capacity and shall not represent themselves to be or be construed to be officers, agents, or employees of City. 23. License Not a Lease. This Agreement does not constitute a lease, but constitutes a mere revocable license and League is limited to the use of the premises expressly and specifically described in Section 2 above. If access routes are not specifically described in Section 2 of this Agreement, League shall be entitled to use only the access route(s) designated by City. League shall have no right or privilege in any respect whatsoever to use any other part of the property of City for any purpose whatsoever. League disclaims any interest that when coupled with the license herein granted would render it irrevocable. 24. Notice. Any notice required or permitted to be given under this Agreement shall be in writing. Delivery of such written notice shall be conclusively taken as sufficiently given forty -eight (48) hours after deposit in the United States Mail, registered or certified, return receipt requested, with the postage thereon fully prepaid, addressed as follows: If to City: City of Rohnert Park Recreation Department 5401 Snyder Lane Rohnert Park, CA 94928 If to League: Rohnert Park Cal Ripken/Babe Ruth Baseball League P.O. Box 2751 Rohnert Park, CA 94972 1060551v5A 80078/0001 Page 7 of 10 Either party may at any time change its address for notices by giving written notice of such change to the other party in the manner provided in this Section 24. 25. No Continuing Waiver. The waiver by City of any breach of any of the provisions of this Agreement shall not constitute a continuing waiver of any subsequent breach the same, or of any other provisions of this Agreement. 26. Surrender. Upon the expiration or sooner termination of this Agreement, League, at its sole cost and expense, shall remove, revise, or relocate such of its structures and equipment as is designated by City, restore the premises to. its original condition, and vacate the premises. Should League neglect to restore the premises to a condition satisfactory to City within 30 days, City may perform such work or have the work performed, and League shall immediately reimburse City for all direct and indirect costs associated with such work upon receipt of a statement therefor. 27. General Provisions. a. Time of Essence. Time is and shall be of the essence of this Agreement and of each and every provision contained in this Agreement. b. Incorporation of Prior Agreements; Amendments. This Agreement contains all the agreements of the parties with respect to any matter mentioned herein. No prior agreement, or understanding pertaining to any such matter shall be effective. This Agreement may be modified in writing only, signed by the parties in interest at the time of modification, and this sentence may not be modified or waived by any oral agreement, whether executed or unexecuted. C. Binding Effect; Choice of Law. This Agreement shall be binding upon and inure to the benefit of the parties, their personal representative, successors, and assigns. This Agreement shall be governed by the laws of the State of California and any action to enforce the terms of this Agreement or for the breach thereof shall be brought and tried in the County of Sonoma. d. No Third Party Beneficiaries. Nothing contained in this Agreement shall be construed to create, and the parties do not intend to create, any rights in third parties. e. Construction of Agreement; Severability. To the extent allowed by law, the provisions in this Agreement shall be construed and given effect in a manner that avoids any violation of statute, regulation, 1060551v5A 80078/0001 Page 8 of 10 or law. City and League agree that in the event any provision in this Agreement is held to be invalid or void by any court of competent jurisdiction, the invalidity of any such provision shall in no way affect any other provision in this Agreement. League and City acknowledge that they have each contributed to the making of this Agreement and that, in the event of a dispute over the interpretation of this Agreement, the language of the Agreement will not be construed against one party in favor of another. League and City further acknowledge that they have each had an adequate opportunity to consult with counsel in the negotiation and preparation of this Agreement. f. Relationship. The parties intend by this Agreement to establish the relationship of licensor and licensee only, and do not intend to create a partnership, joint venture, joint enterprise; or any business relationship other than that of licensor and licensee. g. Captions. The captions in this Agreement are for convenience only and are not part of this Agreement. The captions do not in any way limit or amplify the provisions hereof, and shall have no effect upon the construction or interpretation of any part thereof. LEAGUE HAS CAREFULLY READ AND CONSIDERED THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND HEREBY AGREES THAT LEAGUE SHALL BE BOUND BY ALL SAID TERMS AND CONDITIONS. [Signatures on Next Page] 1060551 v5A80078/0001 Page 9 of 10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above. Date: , 2008 LEAGUE: ROHNERT PARK CAL RIPKEN/ BABE RUTH BASEBALL LEAGUE IN Name: Title: Date: .2008 CITY: ATTEST City Clerk APPROVED AS TO FORM: By: 7iiL, Michelle Kenyo , Ci y Attorney CITY OF ROHNERT PARK In Steve Donley City Manager Per Resolution No. adopted by the City Council at its meeting on 106055 MA 80078/0001 Page 10 of 10