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HomeMy WebLinkAboutLR Facility Use and Management AgreementFACILITY USE AND MANAGEMENT AGREEMENT FOR BERNARD HOFFMAN FIELD This agreement is made and entered into this -A day of �/�12Aqt e� 2021, by and between the City of San Rafael, herein referred to as "CITY", and the San Rafael Girl Softball, a 501(c)(3) Non -Profit Organization, hereinafter referred to as "GIRLS SOFTBALL". RECITALS WHEREAS, in 1997, the Miller Creek School District (then known as the Dixie School District) notified the City of their intent to sell a parcel of surplus school property known as the Bernard Hoffman Field; and WHEREAS, finding that there were no comparable facilities in the Terra Linda Valley for girls softball, no neighborhood park facilities in the immediate area, and very high community interest in preserving the facility, the CITY purchased Bernard Hoffman Field from the Miller Creek School District; and WHEREAS, as part of the purchase of Bernard Hoffman Field, the CITY and GIRLS SOFTBALL came to an agreement that GIRLS SOFTBALL would absorb a significant portion of the maintenance and upkeep of the field in exchange for priority use of the fields; and WHEREAS, since 1997, GIRLS SOFTBALL has overseen the primary maintenance and upkeep of Bernard Hoffman Field, including maintenance of the fields as well as the equipment; and WHEREAS, GIRLS SOFTBALL spends an estimated $10,000 annually through direct expenses and an additional 800-1,000 hours of volunteer and staff time on the maintenance and upkeep of Bernard Hoffman Field, saving the CITY both staff resources and funding; and WHEREAS, through their annual programming, GIRLS SOFTBALL serves an estimated 210 San Rafael youth and provides them with critical recreational and skill -building opportunities; and WHEREAS, GIRLS SOFTBALL strives to offer inclusive programming and has committed to providing scholarships and equipment for any youth that want to participate; and WHEREAS, the CITY and GIRLS SOFTBALL are mutually desirous of continuing to provide recreational softball opportunities for the youth of San Rafael; and WHEREAS, the CITY and GIRLS SOFTBALL propose to continue the partnership of providing softball programs, field maintenance and upkeep in exchange for priority use of Bernard Hoffinan Field; NOW, THEREFORE, the CITY and GIRLS SOFTBALL hereby agree as follows: AGREEMENT Section 1: Bernard Hoffinan Field. This Agreement shall apply to Bernard Hoffinan Field, a CITY -owned facility containing two softball fields (hereafter, the "Field"). Section 2: Duties and Responsibilities of GIRLS SOFTBALL. 2.1 GIRLS SOFTBALL shall, during the term of this Agreement, maintain its status as a private, non-profit corporation pursuant to IRS Section 501(c)(3), or any subsequent regulation. 2.2 GIRLS SOFTBALL shall, at its sole expense and resources, be responsible for all maintenance and upkeep of the Field and all its related equipment, with the exception of those activities listed in section 3.3. GIRLS SOFTBALL shall work with the CITY Department of Public Works to ensure that GIRLS SOFTBALL is maintaining the Field in accordance with all CITY policies and procedures, including adhering to the City's adopted Integrated Pest Management protocol. 2.3 GIRLS SOFTBALL shall repair the Field in the event it is damaged by vandalism or intentional or negligent acts of third parties up to the first $12,500. Subject to the CITY's limitations of budget and other resources, CITY shall be responsible for damages that exceed $12,500. Both parties understand, acknowledge, and agree that because of fiscal constraints of the CITY agreed repairs are contingent upon the CITY having funds available for this purpose. 2.4 GIRLS SOFTBALL shall, on an annual basis, provide CITY with a summary of the relevant maintenance and upkeep conducted each year, supplies and equipment used, any applicable training and an estimated value of the costs of all maintenance. 2.5 GIRLS SOFTBALL shall, twice yearly, provide the Library and Recreation Department with a complete schedule of all GIRLS SOFTBALL organized activities (games, practices, clinics), which will require use of the Field. GIRLS SOFTBALL shall provide this information by October 1 for the January through May period and by March 1 for the June through December period. The CITY reserves the right to close the Field to allow for maintenance and/or to avoid damage during inclement weather, as needed. Library and Recreation staff shall coordinate CITY's programs and activities to avoid conflicts with GIRLS SOFTBALL's activities. Changes to the submitted schedule of events shall be upon written notification and agreement of the parties. 2.6 Any improvements to Field are subject to review by City staff, the Park and Recreation Commission, Design Review Board, Planning Commission, and/or approval of the City Council, depending on the size and scope of the improvement. Any improvements will be required to comply with the California Building Code Title 24, and Title 111 of the ADA. Section 3: Duties and Responsibilities of CITY. 3.1 CITY shall permit GIRLS SOFTBALL priority use of the FIELD for its organized activities pursuant to the submitted schedules and subject to the provisions outlined in this Agreement. 3.2 Subject to the CITY's limitations of budget and other resources, CITY shall repair the Field in the event it is damaged by acts of God, which is defined as acts occasioned exclusively by violence of nature without the intervention of any human agency. Both parties understand, acknowledge and agree that because of fiscal constraints of the CITY agreed repairs are contingent upon the CITY having funds available for this purpose. 3.3 CITY shall at its sole expense and resources mow the field as needed and maintain the hillside above the Field. CITY is solely responsible for the programming of the irrigation system schedule and shall maintain and repair the system as necessary. 3.4 CITY shall be primarily responsible for all major capital improvement projects. Should GIRLS SOFTBALL wish to undertake a major capital improvement project, it will be subject to the requirements of section 2.5. Section 4. Compensation. In recognition of GIRLS SOFTBALL's ongoing maintenance of the Field and relevant equipment at a cost of approximately $10,000 annually through direct expenses and an additional 800-1,000 hours of volunteer and staff time, and their longstanding contribution to recreational programming for San Rafael youth, CITY shall waive facility use fees for the Field for the term of this Agreement. Upon any renewal of this Agreement, the parties shall re -negotiate the terms of compensation. Section 5. Reports and Audits. GIRLS SOFTBALL shall submit to CITY, through the Park and Recreation Commission, an annual report of programs conducted at the Field including achieved prograin outcomes, maintenance expenses, and hours utilizing the Field. Upon reasonable notice, GIRLS SOFTBALL shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by GIRLS SOFTBALL in connection with its performance of its duties under this Agreement. GIRLS SOFTBALL shall fully cooperate with CITY or its agent in any such audit or inspection. Section 6. Term. The term of this Agreement shall be from July 1, 2021 until June 30, 2026, inclusive, subject to earlier termination pursuant to Section 6. Upon expiration, the term of this Agreement may be renewed for five (5) additional years if: a) GIRLS SOFTBALL has complied with all the terms and conditions of this Agreement. b) GIRLS SOFTBALL and City Manager have agreed, prior to expiration, to GIRLS SOFTBALL's compensation, if any, to City for the additional term. c) There are no other changes to the terms and conditions of the Agreement. Section 7. Tennination of AGREEMENT. a) Discretionary. Either party may terminate this Agreement without cause upon sixty (60) days written notice mailed or personally delivered to the other party. b) Cause. Either party may terminate this Agreement for cause upon thirty (30) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C) Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. d) Return of Documents. Upon termination, any and all CITY documents or materials provided to GIRLS SOFTBALL and any and all of GIRLS SOFTBALL's documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. It shall be understood and agreed that should GIRLS SOFTBALL dissolves as a whole, all funds and equipment accrued by the organization at the Field shall be donated free of charge to the CITY for Library and Recreation Department use. Section 8. Indemnification. 4 8.1 GIRLS SOFTBALL shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of GIRLS SOFTBALL' performance of its obligations or conduct of its operations under this Agreement. GIRLS SOFTBALL's obligations apply regardless of whether or not a liability is caused or contributed to by the active or passive negligence of the City Indemnitees. However, to the extent that liability is caused by the active negligence or willful misconduct of the City Indemnitees, the GIRLS SOFTBALL' indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the active negligence or willful misconduct. In addition, the acceptance or approval of the GIRLS SOFTBALL's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the GIRLS SOFTBALL's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from GIRLS SOFTBALL's performance of or operations under this Agreement, GIRLS SOFTBALL shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. 8.2 The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. Section 9. Insurance. 9.1 Scope of Coverage. During the term of this Agreement, GIRLS SOFTBALL shall maintain, at no expense to CITY, commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 9.2 Other Insurance Requirements. The insurance coverage required of GIRLS SOFTBALL in this section, shall also meet the following requirements: a) Except for worker's compensation insurance, the insurance policies shall be specifically endorsed to include the CITY OF SAN RAFAEL, its officers, agents, employees, and volunteers, as additional insureds (for both ongoing and completed operations) under the policies. b) The additional insured coverage under GIRLS SOFTBALL's insurance policies shall be "primary and non-contributory" with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in GIRLS SOFTBALL's policies shall be at least as broad as ISO form CG20 01 04 13. C) Except for worker's compensation insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. d) By execution of this Agreement, GIRLS SOFTBALL hereby grants to CITY a waiver of any right to subrogation which any insurer of GIRLS SOFTBALL may acquire against CITY by virtue of the payment of any loss under such insurance. GIRLS SOFTBALL agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not CITY has received a waiver of subrogation endorsement from the insurer. C) If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. f) The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. g) The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. h) It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the obligations of the GIRLS SOFTBALL under this agreement. i) The insurance policies shall provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to the CITY's Director of Library and Recreation. 9.3 Deductibles and SIR'S. Any deductibles or self-insured retentions in GIRLS SOFTBALL's insurance policies must be declared to and approved by CITY'S City Attorney and shall not reduce the limits of liability. Policies containing any self - 5 insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or GIRLS SOFTBALL shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. 9.4 Proof of Insurance. GIRLS SOFTBALL shall provide to CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policy language or specific endorsements evidencing the other insurance requirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from GIRLS SOFTBALL. Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by the City Attorney. Section 10. Independent Contractor. It is understood and agreed that GIRLS SOFTBALL, its employees, agents and volunteers, in performance of the duties and obligations under this Agreement, shall act as and shall be an independent contractor and not an agent or employee of the CITY. As such, GIRLS SOFTBALL, its employees, agents and volunteers shall obtain no rights or benefits, which accrue to CITY employees. GIRLS SOFTBALL expressly waives any claims it, its employees, agents or volunteers may have to any such rights or benefits. Section 11. Assignment: No Third -Party Beneficiaries. 11.1 GIRLS SOFTBALL shall not assign or transfer any interest in this Agreement, nor its duties and obligations under this Agreement, without the prior written consent of CITY, and any attempt by GIRLS SOFTBALL to so assign this Agreement, or any rights, duties or obligations arising hereunder, shall be void and of no effect. 11.2 Neither party shall assign or transfer its rights to enforce any part of this Agreement. The obligation of CITY and the obligations of GIRLS SOFTBALL stated in this Agreement are not intended to, and do not, create any rights to any other person or entity which such person or entity would not otherwise have in the absence of this Agreement. Section 12: Compliance With All Laws & Non-discrimination. GIRLS SOFTBALL shall comply with all applicable laws, ordinances, codes and regulations of the State, Federal and local governments in the perfonnance of its duties and obligations under this Agreement. GIRLS SOFTBALL shall not discriminate, in any way against any person on the basis of age, sex, race, color, creed, or national origin in connection with or related to the performance of this Agreement. GIRLS SOFTBALL shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. Section 13. Authority. 13.1 Each party represents that it has duly approved the signing of this Agreement and has duly authorized the person named below to sign this Agreement on its behalf in accordance with applicable law. Each such named person personally warrants that he/she has such approval and authority. 13.2 Minor variations in the provision of services pursuant to this Agreement may be made with written concurrence by CITY's Library and Recreation Director and GIRLS SOFTBALL. With this exception, this Agreement may only be modified by a written amendment executed by the parties to this Agreement. Section 14. Waiver. GIRLS SOFTBALL understands and agrees that waiver by the CITY of any breach or violation of any term or condition of this Agreement shall not be deemed to be a waiver of any other term or condition contained herein or a waiver of any subsequent breach or violation of the same or any other term or condition. The acceptance by the CITY of the performance of any duty or obligation by GIRLS SOFTBALL shall not be deemed to be a waiver of any term or condition of this Agreement. Section 15. Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be personally served or mailed, postage prepaid, addressed to the responsive parties as follows: To CITY: CITY of San Rafael Attn: Library and Recreation Director 618 B Street San Rafael, CA 94901 To GIRLS SOFTBALL: San Rafael GIRLS SOFTBALL Attn: Scott Younkin P.O. Box 2921 San Rafael, CA 94912 Notice shall be deemed effective on the date personally delivered or, if mailed, upon deposit in the mail. Section 16. Whole Agreement. a) The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. b) This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between GIRLS SOFTBALL and the CITY. C) No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. d) The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by GIRLS SOFTBALL and the CITY. e) If any conflicts arise between the terms and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. Section 17. Set -Off Against Debts. GIRLS SOFTBALL agrees that CITY may invoice GIRLS SOFTBALL under this Agreement, any monies which GIRLS SOFTBALL owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. Section 18. Attorney's Fees. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. Section 19. Survival of Terms. Any terms of this Agreement that by their nature extend beyond the tenn (or termination) of this Agreement shall remain in effect until fulfilled and shall apply to both Parties' respective successors and assigns. Section 20. Applicable Law. The laws of the State of California shall govern this Agreement. Section 21. Counterparts and Electronic Signature. This Agreement may be executed by electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one document. Counterpart signature pages may be delivered by telecopier, email or other means of electronic transmission. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL GIRLS SOFTBALL � LiTbSAY LARA, City Clerk 76� APPROVED AS TO FORM: Ll- Q "L . - bm ROBERT F. EPSTEI City Attorney Scott Youn resident F-1 XA RA f 2 yo /Ty WITH P - CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Library and Recreation Project Manager: Catherine Quffa Extension: 3078 Contractor Name: San Rafael Girls Softball Contractor's Contact: Scott Younkin Contact's Email: scotynk@hotmail.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT DATE Check/Initial 1 Project Manager a. Email PINS Introductory Notice to Contractor Click here to ❑ enter a date. b. Email contract (in Word) and attachments to City Attorney c/o Laraine.Gittens@cityofsanrafael.org 2/18/2021 XX CQ 2 City Attorney a. Review, revise, and comment on draft agreement 2/23/2021 X❑ LG and return to Project Manager 2/23/2021 X❑ LG b. Confirm insurance requirements, create Job on PINS, send PINS insurance notice to contractor ❑ _SAW_ 3 Department Director Approval of final agreement form to send to 6/9/2021 contractor 4 Project Manager Forward three (3) originals of final agreement to 6/11/2021 ❑X CQ contractor for their signature 5 Project Manager When necessary, contractor -signed agreement ❑X N/A agendized for City Council approval * *City Council approval required for Professional Services ❑ Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to Date of City Council approval enter a date. PRINT CONTINUE ROUTING PROCESS WITH HARD COPY 6 Project Manager Forward signed original agreements to City Cf Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed ?,02( agreement 8 City Attorney Review and approve insurance in PINS , and bonds Z� ZpZI (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized 174 City Clerk official 10 Attest signatures, retains original agreement and forwards copies to Project Manager GC-