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HomeMy WebLinkAboutReso - CC - 091-2018RESOLUTION OF TTIE CITY COI,]NCIL OF THE CITY OF BURLINGAME AUTHORIZING THE CITY MAI\AGERTO EXECUTE AGREEMENTS WITH BURLINGAME GIRLS SOFTBALL, MERCY HIGH SCHOOL BT]RLINGAME, BT]RLINGAME AYSO, AND BURLINGAME YOUTH BASEBALL ASSOCIATION FOR USE OF CITY.OWNED FIELDS F'OR RECR-EATIONAL SPORTS USE, CONCESSION SALES, AND/ORSTORAGE WHEREAS, Burlingame Girls Softball @GS), Mercy High School Burlingame (Mercy), Burlingame AYSO (AYSO) and Youth Baseball Association (BYBA) are non-profit organizations and have had a long relationship with the City; and WHEREAS, BGS, Mercy, AYSO, and BYBA provide organized youth sports on City athletic fields; and WHEREAS, over the years, the organizations have paid to add amenities to City parks in order to enhance their programs, including storage sheds, batting cages, and improvements to City-owned snack shacks; and WHER.EAS, the City has determined that individual agreements with each organization are necessary to allow for a clear understanding ofthe parties' financial and maintenance responsibilities for the added and/or used amenities. NOW, THEREFORE, THE CITY COUNCIL OF TIIE CITY OF BURLINGAME RESOLVES AND ORDERS AS FOLLOWS: l. The City Manager is authorized to execute the agreements with the above-named organizations in the forms attached to this Resolution. Michael Brownri ayor I, Meaghan Hassel-Shearer, City Clerk of the City of Burlingame, certify that the fo ing Resolution was introduced at a regular meeting of the Burlingame City Council held on the l8th day of June, 2018, and was adopted thereafter by the following vote: Councilmembers: BEACH, BROWNRIGG, COLSON, KEIGHRAN Councilmembers: NONE Councilmembers: ORTIZ sel-S hearer, City Clerk RESOLUTION NO. O9I-20T8 AYES: NOES: ABSENT: THE CITY OF BURLINGAME AND BURLINGAME GIRLS SOFTBALL ASSOCIATION USE AGREEMENT This USE AGREEMENT (hereinafler, 'AGREEMENT") is made and entered into this _ dey of 2018, by and between the CITY OF BURLINGAME (hereinafter, "CITY) and BURLINGAME GIRLS SOFTBALL ASSOCLCTION, a non-profit 501(cX3) corporation (hereinafter, "BGS'), who are refened to as a "Party' or colledively the "Parties." WHEREAS, the CITY and BGS desire to enter into this AGREEMENT to allow BGS to use FACILITIES for recreational softball use, concession sales, and storage. NOW THEREFORE, for and in consideration of the following terms and conditions herein contained, the Parties hereto agree as follows: This AGREEMENT shall become efiective upon execution and end on the date ten years following the effective date, in order to provide a ten (1O)-year period for BGS to amortize its annual capital investments in field improvements. Tenant shall have the option, exercisable by written notice to CITY not later than ninety (90) days prior to the expiration of the term, to extend the term of this Agreement for one (1) further term of {ive (5) years on the same terms and conditions as provided in this Agreement, except that the annual rent as described below shall be $275.00 per year for the batling cages and $275.00 per year for the use of the concession stand during this option period. lf BGS wishes to extend its use of CITY's facilities under this Agreement beyond the original term and option period, it shall so notiff CITY at least ninety (90) days prior to the expiration of the option period. CITY shall then evaluate whether the cunent Agreement and BGS's actions under it adequately serve the public interest and whether the rents provided for in the Agreement provide a sufficient level of reimbursement for CITY's costs. Following this assessment, the parties shall mnfer on any changes and may, at their mutual option, extend this Agreement for an additional term of five (5) years with an option period of an additional fve (5) years. 1 RECITALS WHEREAS, CITY is the fee ovrrner of Bayside Fields, Washington Park, Cuemavaca Park, and Ray Park in the City of Burlingame; and 1. TERMANDCOMMENCEMENT 2. FACILITIES This AGREEMENT covers BGS's use of four (4) C|TY-owned properties, which are collectively refened to as FACILITIES. Each property has unique features and uses, wtrich are more particularly described in the attached e*tibits.. Ray Park, 1525 Balboa Ave. (EXHIBIT A).. Bayside Fields, 1 125 South Airport Blvd. (EXHIBIT B),o Washington Park, 420 Carolan Ave. (EXHIBIT C),. Cuemavaca Park, 3075 Alcazar Dr. 3. USE OF FACILITIES a. BGS shall have use of FACILITIES lor softball activities pursuant to the terms of this AGREEMENT. BGS is obligated to do the following: i. Provide CITY staff with keys and/or codes for all buildings used by BGS on CITY property.ii. Provide at least 24 hours' notice to the City when vehicles will be parked at the FACILITIES overnight, unless such vehicles are used in construction, grading, or maintenance of the field.iii. Provide all personnel necessary to supervise their activities. All BGS board members and coaches shall have completed background checks as required by their governing organization.iv. Fumish and supply all equipment and expendable materials that may be necessary for their activities.v. Prevent any nuisance, such as dust or noise that might be created, affecting adjoining residential and/or other properties.vi. Operate any public address syslem in accordance with the City of Burlingame Municipal Code.vii. Ensure that no signs/banners shall be erected or displayed on the premises without the prior written approval of the Parks and Recreation Director, which approval the Parks and Recreation Director will not unreasonably withhold. All signVbanners will comply with all applicable City policies, ordinances and/or regulations, and all applicable state and federal laws or decisions of courts of competent jurisdiction. CITY may revise its policies, ordinances, and/or regulations fom time to time within its sole discretion, and those revisions shall apply to BGS's signs/banners when ac,opted.viii- Ensure that there is no subletting of fields. BGS shall have control over the management and use of one of the batting cages as identified in Exhibit A to this Agreement, and CITY authorizes BGS or its approved users to conduct batting practice in the batting cages. When reasonably possible, City will give BGS seven (7) days' notice of any upcoming special events or park closures that may affect BGS's use of the 2 b. USE OF BAT-IING CAGES The batting cage hours of operation shall be as follows: a. Bayside Fields: The batting cage(s) at Bayside Fields may only be used from Monday to Sunday from 8:00 a.m. to 9:00 p.m. The CITY may reasonably change the hours of operation based upon neighborhood impac{. Notice of any change in batting cage hours of operation will be provided to BGS in writing at least 30 days in advance, unless circumstances require shorter notice, in which case CITY shall provide the maximum practicable notice, along with a written explanation of the need for a shorter notice period. A BGS coach/board member or other user group coach/board member must supervise minors who use the batting cages. BGS shall maintain the batting cages in accordance with all laws and regulations and applicable safety standards. The root structure and fence of the batting cages shall be kept in good repair and in an attractive condition at all times. CITY shall have the right to enter upon and inspec't the batting cages, subject to reasonable advance notice, to determine whether BGS is complying with this lease and whether the site is being maintained in a reasonably safe and atfactive manner. lf BGS tails to mainlain or make repairs or replacements as required herein, CITY may notify BGS in writing of said failures. Should BGS fail to conect the situation within 60 days thereafter, the Parks and Recreation Director may make, or cause to be made, the necessary conections. Hoivever, this notice period may be shortened or waived in light of urgent health or safety issues. ln which case, CITY may exercise its right to enter and repair or secure the area with as much notice as is practicable under the circumstances. CITY may also order the batting cages closed due to urgent health or safety issues until repairs can be effected. The cost of any repairs done by CITY, including, but not limited, to the cost of labor, materials, and equipment, plus a 5% charge for CITY administration of the repairs, shall be paid by BGS wilh ten (10) business days of receipt of a statement of cost from the Parks and Recreation Director. BGS shall pay the City rent of $250.00 per year, payable on or before January 1d each year. This fee will cover eleclrical costs associated with the operation of the batting cages. The CITY shall be responsible for and shall pay, prior to delinquency, any charges for utilities supplied to the batting cages. c. USE OF CONCESSION STANDS J batting cages. BGS will permit CITY or other user groups to use the facility for batting practice, at BGS'S scheduling discretion, which will not be unreasonably withheld. All use of the batting cages will be govemed by the following rules: l. [_ . iv. The CITY is the owner of lhe one (1) concession stands at Ray Park that may be used for the sale of food and other items to pa(icipants and spectators. BGS shall operate the concession stands for the convenience of participants and spec'tators. BGS's use of the concession stands under this Agreement is limited to January 2nd to July 31$ of each year this Agreement is in effect. From August 1d through January 1d, all appliances will be unplugged, and no food storage will be permitted in the concession stands. From August 1"t through January 'ld, physical access to the concession stands by BGS members and/or afiiliates shall only be allowed with prior written permission of City staff, which shall not be unreasonably withheld. As the op€rator of the concession stands, BGS agrees to the following: vl. BGS will be allowed to utilize the concession stands at Ray Park for the purpose of selling food and sundry items at games and special events. No alcoholic beverages shall be sold. BGS shall provide all personnel and supplies at said concession stand. BGS may sublet the @ncession stands to a private vendor with written permission from lhe Parks and Recreation Director, which consent the Parks and Recreation Director will not unreasonably withhold. A private vendor must follow all of the terms and conditions of this section 3(c) of this AGREEMENT. A private vendor will also be required to obtain a City of Burlingame Business License. No private vendor may operate a personal business out of any City FACILTIES or store personal items in any City FACILITIES. BGS or its subtenant shall pay the City rent of $250.00 per year, payable on January 1{ each year. This fee will cover all utilities, including water, eleclricity, garbage, and other services associated with the operation of the concession stands. BGS or its sublenant must obtain permits and pay any fees required by the San Mateo County Health Department and must meet all requirements as set forth by the San Mateo County Health Department for the operation of the concession stands. BGS or its subtenant shall comply with any and all laws pertaining to the operation of such concession facilities. BGS or its subtenant shall mainlain the interior of the facilities and carry insurance upon its contents and personnel in limits of at least $ 1,000,000 per occurrence naming the City as additional insured, evidence of which must be on file with the Clry in the form of a certificate of insurance and cunent original endorsement at all times during which BGS is operating or using the CITY's facilities under lhis Agreement. BGS's rights to use the FACILITIES under this Agreement shall be immediately suspended upon lapse of such coverage and for the duration of time during which coverage is unavailable. 4 i. ii. t. Concession stands shall be kept in a clean and well-maintained condition. The FACILITIES may not be used for any activiues that do not direclly beneft BGS. d. USE OF STORAGE SHEDS . Only pr+.fabricated units, approved by the Parks and Recreation Direclor, or his or her designee, shall be placed on the FACILITIES. BGS shall contact, and make anangements with, appropriate CITY staff to obtain supervision and guidance in the placement and/or removal of the storage units. Storage units shall be kept in a clean and well-maintained condition. BGS shall monitor and inspect the storage unils on a regular basis throughout the year and immediately remove any graffiti and/or make repairs as needed. BGS shall paint and/or repair any approved storage units within 72 hours of being notified of needed painting or repairs. This shall include painting and/or removal of graffiti. lf BGS has not taken conective action for the painting or maintenance of BGS's storage units wilhin tle 72-hout time period set forth above, the Parks and Recreation Director, or his or her designee, at his or her sole discretion, shall take necessary steps to correct the non- compliance through the use of CITY'S employees or the hiring of contractors to perform the necessary work. BGS shall reimburse CITY for any costs incuned in taking this conective action, plus a 5% charge for CITY administration of the repairs, which shall be paid by BGS with ten (10) business days of receipt of a statement of cost from the Parks and Recreation Director- BGS agrees to pay the approved per player, per hour, and light fees adopted by the Burlingame City Council as stated in the Master Fee Schedule, as it may be amended from time to time. BGS agrees to pay the annual fees for the concession stands and the batting cages as described herein. 5 6, IMPROVEMENTS vii. viii. t. t. 4. COMPLIANCE WITH ALL LAWS BGS, their members, and participants, shall each comply with all the requirements, statutes, and codes of all municipal, state, and federal authorities and agencies now in force, or which may hereinafter be in force, pertaining lo the use of FACILITIES. 5. FEES BGS shall not remove, alter, construct, or add to the FACILITIES without the CITY'S express prior written consent. Any such removal, alteration, construction, or addition of any kind to FACILITIES or grounds without the CITY'S written consent shall be a material breach of this AGREEMENT. ln the event of said material breach, CITY may either remove the improvements at BGS's expense, or CITY may retain such improvements at no cost. BGS must provide at least 6$day prior written notification to the CITY and receive CITYS written consent before making any alterations, additions, or improvements to FACILITIES, which will be at BGS's sole expense, unless otherwise agreed upon in writing. All alterations, additions, or improvements must comply with all applicable laws. All permits must be obtained and signed off before any removal, alteration, or construction may begin. No City fees shall be charged to BGS for such permits. Whenever a physical structure is added to any of the FACILITIES, this AGREEMENT shall be updated to describe lhe new structure. Once the alteration, addition, or improvement has been approved in writing by the Director of Parks and Recreation and is completed, the Director of Parks and Recreation will update the agreement exhibit to reflect the alteration, addition, or improvement. BGS is responsible for 'all upkeep and maintenance of structures installed on City property. 7 DESTRUCTION OR E TO FACILITIES lf, for any reason, there is any destruction or damage to the batting cage, storage sheds, or concession stands, then BGS is responsible for their repair andlor replacement unless, in the course of an investigation conducted by the CITY or its insurer, it is determined conclusively that another party is responsible for such damage, in which case that party shall bear the cost of repairs. This AGREEMENT does not confer any legal responsibility on the CITY to repair or replace any structure for BGS's use under the terms of this AGREEMENT. 8. NUISANCEABATEMENT CITY has the authority to abate any public nuisance created by BGS's performance of the terms and conditions of this AGREEMENT and use of FACILITIES. BGS must reimburse Clry for all reasonable fees and costs associated with nuisance abatement or code enforcement. The normal noises, odors, parking, and crowds associated with 6 Any structure that has a permanent poured foundation requires the approval of the City Council and will become the property of the City once installed. Removable structures (i.e. storage sheds) require the approval of the Director of Parks and Recreation and the ownership will be retained by BGS. BGS must remove any structure if requested by CITY. BGS's customary operation, maintenance and use of the FACILITIES shall not be deemed a nuisance as defined in Burlingame Municipal Code section 1 . 16.0 1 0. BGS, shalt debnd, indemnify, hold free and harmless the CITY, its elected and appointed officials, officers, attomeys, agents and employees, at BGS'S sole expense, from and against any and all claims, actions, suits or other legal proceedings brought against the CITY, its elected offcials, officers, agents and employees arising out of BGS'S operation, maintenance, and/or use of FACILITIES or its obligations under this AGREEMENT. The defense obligation provided for hereunder shall apply without any advance showing of negligence or w'ongdoing by BGS, its officers, employees, volunteers and/or authorized subcontractors, but shall be reguired whenever any claim, action, complaint, or suit asserts as its basis the negligence, erors, omissions or misconduct of BGS, its officers, employees, volunteers andlor authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the CITY, its elected and appointed officials, officers, agents and employees based upon the work perficrmed by BGS, its ofticers, employees, volunteers and/or authorized subcontractors under this AGREEMENT whether or not BGS, its officers, employees, volunteers and/or authorized subcontractors are specifcally named or othemise asserted to be liable. Under no circumstances shall the CITY be liable for the defense or indemnification of BGS for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of BGS. BGS shall not be liable ior damage or injury occasioned by the active negligence or willful misconduct of CITY or its agents, contractors or employees. The obligations under this paragraph shall survive the termination or expiration of this Agreement, and shall apply to claims or allegations that arcrue during its effective period. CITY shall have no responsibility or liability for loss or damage of any personal property placed or stored in any of the FACILITIES, including but not limited to netting, pitching machines, electrical cables, balls, player equipment, or other items. 10. ASSIGNMENTSANDSUBLEASE Neither CITY nor BGS may assign or lransfer this AGREEMENT, or any part thereot without the prior written consent of the other Party. 11. NOTICES All notices, statements, demands, requests, consents, approvals, authorizations, appointments, or designations hereunder by either Party to the other will be in writing and will be deemed given and served upon the other Party, if delivered personally or three (3) days after depositing in the United States mail, postage prepaid, addressed to: 7 lf to CIW: 9. LIABILITIESANDINDEMNIFICATION lf to BGS: City of Burlingame Attention: Parks and Recreation Director 850 Burlingame Ave Burlingame, CA 94010 Telephone: (650) 558-7300 E-Mail: mglomstad@burlingame.org This AGREEMENT may be terminated, with or without cause, at any time by either Party. BGS shall provide six (6) months written notice to the CITY. CITY shall povide six (6) months written notice to BGS. lf CITY transfers ownership, or if part of or all of FACIIITIES is condemned, or access to FACILITIES is changed or limited, either Party may, in its sole discretion, terminate this AGREEMENT as it relates to such facilities without any liability by giving the other Party no fewer than ninety (90) days prior written notice. Upon termination, BGS agrees to remove all BGS owned equipmenUsupplies, storage sheds and signage and repair any damage caused to FACILITIES to the extenl such damage was not the result of active negligence or willful misconduct by the CITY or its agents, contractors, or employees. 14. INSURANCE BGS shall obtain and maintain during the life of this AGREEMENT all of the fullowing insurance coverages: Commercial general liability including premises-operations, products/completed operations, broad form property damage, blanket contraclual liability, independent contractors, personal injury with a policy limit of not less than Two Million Dollars ($2,000,000.00), combined single limits, per occunence and aggregate. Workers' compensation insurance as required by the State of California 8 Burlingame Girls Softball Association Attn: President P.O. Box4532 Burlingame, CA 94010 E-Mail: burlingamesofrball@gmail.com 12. EMERGENCYREPAIRS CITY reserves the right to make, or cause to be made, necessary emergency repairs and to access all FACILITIES for such purposes. When feasible, CITY shall provide BGS verbal or written notice of the need for an emergency repair. lf BGS does not perform the repair within 24 hours of notice, then CITY shall handle the repair. BGS shall reimburse the CITY for the total cost of the repair, including labor, materials, and equipment, plus a 57o charge for CITY administration of the repair. BGS shall reimburse the CITY within ten (10) business days of receipt of an invoice. 13. TERMINATION ii. It.Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions conceming the CITY: '1. Additional insureds: BGS, shall defend, indemnify, hold ftee and harmless the CITY, its elected and appointed officials, officers, agents and employees Certificates of lnsurance: Upon execr.rtion of this AGREEMENT, BGS shall provide the Clry with certificates of insurance showing the insurance coverages and required endorsements described above. 15.SEVERABILIWAN D APPLICABLE LAW 16, WAIVER The failure of CITY or BGS to insist upon strict performance of any of the terms, conditions, or covenants in this AGREEMENT will not be deemed a waiver of any right or remedy which GITY or BGS may have and will not be deemed a waiver of any right or remedy for a subsequent breach or deiault of the terms, conditions, or covenants herein contained. 17, BINDING EFEECf This AGREEMENT and all the terms, covenants, conditions, and agreements herein contained \^/ill be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. CITY and BGS are not partners. Nothing herein contained shall be construed to create a partnership or joint venture in any sense. 9 2. Other insurance: 'Any other insurance maintained by the City of Burlingame shall be excess and not contributing with the insurance provided by this policy-" Whenever possible, each provision of this AGREEMENT will be interpreted in such a manner as to be effective and valid under applicable law. lf any provision of this AGREEMENT is invalid under applicable law, such provision will be inefective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision, or the remaining provisions. This AGREEMENT has been made and entered into in the State of Califomia and the laws of said State will govem the validity and interpretation hereof and the performance hereunder by the parties herein. Venue shall be in San Mateo County. 18. NO PARTNERSHIP OR JOINT VENTURE As provided by law, BGS shall not employ any discriminatory practices in its performance of the terms and conditions of this AGREEMENT, including its employment practices or FACILITIES usage. 20, ENTIRE A REEMENT IN WTNESS WHEREOF, the Parties have hereunto affixed their name by their officers "hereunto duly authorized," on the day and year written above. City of Budingame, A municipal corporation Burlingame Girls Softball Association Lisa K. Goldman City Manager Approved as to form lMll Evans President Kathleen Kane City Attorney Attest: Meaghan Hassel-Shearer City Clerk l0 19. NONDISCRIMINATION This AGREEMENT expresses the entire agreement between the Parties conceming the subject matter of this AGREEMENT. There are no understandings, agreements, representations, or warranties, express or implied, not set forth or specified in this AGREEMENT. This AGREEMENT supersedes all other agreements, verbal or written. This AGREEMENT may not be amended except in writing signed by both Parties. Exhibit A Ray Park Ray Park is located at 1525 Balboa. This 25 acre facility includes three {3} ballfields, three (3) storage units (2 lob Boxes and 1 cargo container) and one concession stand- 865 Concession Stand , :r.t: \ i t ) I '$'q *!' Storage Stglqge. ..j' O BGS CarSo Container at RaY Park BGS is proposing to remove the two Job Boxes and replace it with two tuff sheds in the same location similar to the generic tuffshed picture below. i -) t s' sI ii !, ! Exhiblt B Bayside Fields Bayside Fields is located at 1125 South Airport 8lvd. This 12 acre facility includes five (5) ballfiel& and one (1) future batting cage. BGS is proposing to add a storage unit in the above location similar to the unit proPosed at Ray Park. storage lJo(...: E l, o L'--r I 5,- s ,-. .-"' J' r: rL n .\ .U Exhibit C Washington Park W6hingrton Park is located at 420 Cardan Ave. This lGacre tacflity includes one (1) ballfEld. BGS is proposinB to add a storage unit in the above location similar to the unit proposed at Ray Park- t il f E o::.,.r:ir : (t t This USE AGREEMENT (hereinafter, 'AGREEMENT') is made and entered into this _ day of 2018, by and between the CITY OF BURLINGAME (hereinafter, "CITY) and MERCY HIGH SCHOOL BURLINGAME, a non-profit 501(cX3) corporation (hereinafter, 'MERCr), who are refened to as a'Parlf or collectively the 'Parties." WHEREAS, CITY is the Ge orvner of Cuemavaca Park and Murray Field in the City of Burlingame; and WHEREAS, the CITY and MERCY desire to enter into this AGREEMENT to allow MERCY to use FACILITIES for recreational lacrosse and sofiball use and storage. NOW THEREFORE, for and in consideration of the following terms and conditions herein contained, the Parties hereto agree as follows: This AGREEMENT shall become effective upon execution and end on the date ten years following the effective date, in order to provide a ten (1O)-year period for MERCY to amortize its annual capital investments in field improvements. Tenant shall have the oplion, exercisable by written notice to CITY not later than ninety (90) days prior to the expiration of the term, to extend the term of this Agreement for one (1) further term of five (5) years on the same terms and conditions as provided in this Agreement. lf MERCY wishes to extend its use of CITY's facilities under this Agreement beyond the original term and option period, it shall so notify CITY at least ninety (90) days prior to the expiration of the option period. CITY shall then evaluate whether the current Agreement and MERCY's actions under it adequately serve the public. Following this assessment, the parties shall confer on any changes and may, at their mutual option, extend this Agreement for an additional term of five (5) years with an option period of an additional five (5) years. This AGREEMENT covers MERCY's use of two (2) ClWowned properties, which are collectively refened to as FACILITIES. Each property has unique features and uses, which are more particularly described in the attached odribits.. Cuemavaca Park, 3075 Alcazar Dr. (EXHIBIT A) I THE CITY OF BURLINGAME AND MERCY HIGH SCHOOL BURLINGAME USE AGREEMENT RECITALS 1. TERMANDCOMMENCEMENT 2. FACILITIES Munay Field, 25O Anza Blvd. (EXHIBIT B) a. MERCY shall have use of FACILITIES for lacrosse and softball activities pursuant to the terms of this AGREEMENT. MERCY is obligated to do the following: i. Pmvide CITY staff with keys and/or codes for all buildings used by MERCY on CITY property. ii. Provide at least 24 hours' notice to the City when vehicles will be parked at the FACILITIES overnight.iii. Provide all personnel necessary to supervise their activities. All MERCY staff and coaches shall have completed background checks as required by their goveming organization.iv. Fumish and supply all equipment and expendable materials that may be necessary for their aciivities.v. Prevent any nuisance, such as dust or noise that might be created, affecting adjoining residential and/or other properties.vi. Operate any public address system in accordance with the City of Burlingame Municipal Code.vii. Ensure that no signstbanners shall be erected or displayed on the premises without the prior written approval of the Parks and Recreation Director, which approval the Parks and Recreation Director will not unreasonably withhold. All signVbanners will comply with all applicable City policies, ordinances and/or regulations, and all applicable state and federal laws or decisions of courts ol competent jurisdiction. CITY may revise its policies, ordinances, and/or regulations trom time to time within its sole discretion, and those revisions shall apply to MERCY's signs/banners when adopted.viii. Ensure that there is no subletting of fields. b. USE OF STORAGE SHEDS Only pre-fabricated units, approved by the Parks and Recreation Director, or his or her designee, shall be placed on the FACILITIES. MERCY shall contact, and make anangements with, appropriate CITY staff to obtain supervision and guidance in the placement andror removal of the storage units. Storage units shall be kept in a clean and well-maintained condition. MERCY shall monitor and inspect the storage units on a regular basis throughout the year and immediately remove any graffiti ancl/or make repairs as needed. MERCY shall paint and/or repair any approved storage units within 72 hours of being notified of needed painting or repairs. This shall include painting and/or removal of graffiti. 2 . 3. USE OF FACILITIES t. lf MERCY has not taken @rrective action for the painiing or maintenance of MERCY's storage units within the 72-hour time period set forth above, the Parks and Recreation Director, or his or her designee, at his or her sole discretion, shall take necessary steps to correct the non+ompliance through the use of CITY'S employees or the hiring of contractors to perform the necessary work. MERCY shall reimburse CITY for any costs incurred in taking this corrective aclion, plus a 57o charge for CITY administration of the repairs, which shall be paid by MERCY with ten ('10) business days of receipt of a statement of cost ftom the Parks and Recreation Director. 4. COMPLIANCE W|TH ALL LAWS MERCY, their members, and participants, shall each comply with all the requirements, statutes, and codes of all municipal, stale, and federal authorities and agencies now in force, or which may hereinafter be in force, pertaining to the use of FACILITIES. 5. FEES MERCY agrees to pay the approved per player, per hour, and lighl fees adopted by the Burlingame City Council as stated in the Master Fee Schedule, as it may be amended trom time to time. MERCY shall not remove, alter, construct, or add to the FACILITIES without the CITYS express prior written consenl Any such removal, alteration, construction, or addition of any kind to FACILITIES or grounds without the CITY'S written consent shall be a material breach of this AGREEMENT. ln the event of said material breach, CITY may either remove the improvements at MERCYS expense, or CITY may retain such improvements at no cost. MERCY must provide at least 60-day prior written notification to the Clry and receive CITY'S written consent before making any alterations, additions, or improvements to FACILITIES, which will be at MERCY's sole expense, unless otherurise agreed upon in writing. All alterations, additions, or improvements must comply with all applicable laws. All permits must be obtained and signed off before any removal, alteration, or construction may begin. No City fees shall be charged to MERCY for such permits. Whenever a physical structure is added to any of the FACILITIES, this AGREEMENT shall be updated to describe the new structure. Any structure that has a permanent poured foundation requires the approval of the City Council and will become the property of the City once installed. Removable structures (i-e. storage sheds) reguire the approval of the Director of Parks and Recreation and the o\,vnership will be retained by Mercy. Mercy must remove any structure if requested by crry. 3 t. 6. IMPROVEMENTS Once the alleration, addition, or improvement has been approved in writing by the Director of Parks and Recreation and is completed, the Director of Parks and Recreation will update the agreement exhibit to reffect the alteration, addition, or improvement. MERCY is responsible for all upkeep and maintenance of structures installed on City property. lf, for any reason, there is any destruction or damage to the storage sheds lhen MERCY is responsible for their repair and/or replacement unless, in the course of an investigation conducled by the CITY or its insurer, it is determined conclusively that another party is responsible for such damage, in which case that party shall bear the cost of repairs. This AGREEMENT does not confer any legal responsibility on the CITY to repair or replace any structure for MERCY's use under the terms of this AGREEMENT. 8. NUISANCEABATEMENT CITY has the authority to abate any public nuisance created by MERCY's performance of the terms and conditions of this AGREEMENT and use of FACILITIES. MERCY must reimburse CITY for all reasonable fees and costs associated with nuisance abatement or code enforcement. The normal noises, odors, parking, and crowds associated with MERCY's customary operation, maintenance and use of the FACILITIES shall not be deemed a nuisance as defined in Burlingame Municipal Code section 1 .16.01 0. 9, LIABILITIESANDINDEMNIFICATION MERCY, shall defend, indemnify, hold fee and harmless the CITY, its elecled and appointed officials, officers, atomeys, agents and employees, at MERCYS sole expense, from and against any and all claims, actions, suits or other legal proceedings brought against the CITY, its elected offrcials, officers, agents and employees arising out of MERCY'S operation, maintenance, and./or use of FACILITIES or its obligations under this AGREEMENT. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by MERCY, its officers, employees, volunteers and/or authorized subcontractors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, enors, omissions or misconduct of MERCY, its officers, employees, volunteers and/or authorized subcontractors, and/or vvhenever any claim, action, complaint or suit asserts liability against the CITY, its elected and appointed ofhcials, officers, agents and employees based upon the work performed by MERCY, its officers, employees, volunteers and/or authorized subcontractors under this AGREEMENT whether or not MERCY, its officers, employees, volunteers and/or authorized subcontraclors are specifically named or otherwise asserted to be liable. Under no circumstances shall the 4 7. DESTRUCTION OR DAMAGE TO FACILITIES CITY be liable for the defense or indemnificaiion of MERCY for claims, actions, complaints or suits arising out of the sole aclive negligence or willful misconduct of MERCY. Mercy shall not be liable for damage or injury occasioned by the active negligence or willtul misconduct of Clry or its agents, contractors or employees. The obligations under this paragraph shall survive the termination or expiration of this Agreement, and shall apply to claims or allegations that accrue during its efieclive period. CITY shall have no responsibility or liability for loss or damage of any personal property placed or stored in any of the FACILITIES, including but not limited to netting, pitching machines, eleclrical cables, balls, player equipment, or other items. Neither CITY nor MERCY may assign or transfer this AGREEMENT, or any part thereof, without the prior written consent of the other Party. All notices, statements, demands, requests, consents, approvals, authorizations, appointments, or designations hereunder by either Pafi to the other will be in wriling and will be deemed given and served upon the other Party, if delivered personally or three (3) days afier depositing in the United States mail, postage prepaid, addressed to: lf to CITY:lf to MERCY HIGH SCHOOL: 12. EMERGENCYREPAIRS CITY reserves the right to make, or cause to be made, necessry emergency repairs and to access all FACILITIES for such purposes. \ /hen feasible, CITY shall provide MERCY verbal or written notice of the need for an emergency repair. lf MERCY does not perform the repair wilhin 24 hours of notice, lhen CITY shall handle the repair. MERCY shall reimburse the CITY for the total cost of the repair, including labor, materials, and equipment, plus a 5% charge for CITY administration of the repair. MERCY shall reimburse the CITY within ten (10) business days of receipt of an invoice. 5 City of Burlingame Attention: Parks and Recreation Director 850 Burlingame Ave Burlingame, CA 94010 Telephone: (650) 558-7300 E-Mail: mglomstad@burlingame.org Mercy High School Burlingame Attn: Head ofSchool 2750 Adeline Drive Burlingame, CA 94010 E-Mail: khanrahan@mercyhsb.com 10, ASSIGNMENTSANDSUBLEASE 11. NOTICES 13- TERMINATION This AGREEMENT may be terminated, with or without cause, at any time by either Party. MERCY shall provide six (6) months written notice to the CITY. CITY shall provide six (6) months written notice to MERCY. lf Clry kansfers ownership, or if part of or all of FACILITIES is condemned, or aeress to FACILITIES is changed or limited, either Party may, in its sole discretion, terminate this AGREEMENT as it relates to such facilities without any liability by giving the other Party no fewer than ninety (90) days prior written notice. Upon termination, MERCY agrees to remove all MERCY owned equipmenUsupplies, storage sheds and signage and repair any damage caused to FACILITIES to the extent such damage was not the result of active negligence or willful misconduct by the CITY or its agents, contractors, or employees. 14. INSURANCE MERCY shall obtain and maintain during the life of this AGREEMENT all of the following insurance coverages: Commercial general liability inctuding premises-operations, productvcompleted operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than Two Million Dollars ($2,000,000.00), combined single limits, per o@urrence and aggregate. [.Workers' compensation insurance as required by the State of Califurnia t.Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions concerning the CITY: 1. Additional insureds: MERCY, shall defend, indemni!, hold free and harmless the Clry, its elecled and appointed officials, officers, agents and employees 2. Other insurance: 'Any other insurance maintained by the City of Burlingame shall be excess and not contributing wilh the insurance provided by this policy." Whenever possible, each provision of this AGREEMENT will be interpreted in such a manner as to be effective and valid under applicable law lf any provision of this 6 Certfficates of lnsurance: Upon execution of this AGREEMENT, MERCY shall provide the CITY with certificates of insurance showing the insurance coverages and required endorsements described above. 15. SEVERABILITYANDAPPLICABLE LAW t. AGREEMENT is invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision, or the remaining provisions. This AGREEMENT has been made and entered into in the State of California and the laws of said State will govem the validi$ and interpretation hereof and the performance hereunder by the parties herein. Venue shall be in San Mateo County. ,16. WAIVER 17, BINDING EFFECT CITY and MERCY are not partner. Nothing herein contained shall be construed to create a partnership or joint venture in any sense. 19. NONDISCRIMINATION As provided by law, MERCY shall not employ any discriminatory practices in its perbrmance of the terms and conditions of this AGREEMENT, including its employment practices or FACILITIES usage. 20. ENTIREAGREEMENT lN WITNESS WHEREOF, the Parties have hereunto affixed their name by their officers "hereunto duly authorized," on the day and year written above. 7 The failure of CITY or MERCY to insist upon strict performance of any of the terms, conditions, or covenants in this AGREEMENT will not be deemed a waiver of any right or remedy which CITY or MERCY may have and will not be deemed a waiver of any right or remedy for a subsequent breach or default of the terms, conditions, or covenants herein contained. This AGREEMENT and all lhe terms, covenants, conditions, and agreements herein contained will be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. 18. NO PARTNERSHIP OR JOINT VENTURE This AGREEMENT erpresses the entire agreement between the Parties conceming the subject matter of this AGREEMENT. There are no understandings, agreements, representations, or wananties, express or implied, not set forth or specified in this AGREEMENT. This AGREEMENT supersedes all other agreements, verbal or written. This AGREEMENT may not be amended except in writing signed by both Parties. City of Burlingame, A municipal corporation Mercy Burlingame President Lisa K. Goldman City Manager Approved as to form: Kathleen Kane City Attorney Attest: Meaghan Hassel-Shearer City Clerk 8 Name: Exhibit A Cuernavaca Park Cuernavaca Park is located at 3075 Alcazar Drive. This 5 acre facility includes one (1) ballfield and one (1) storage unit. Mercy Burlingame Stora8e unit at Cuernavaca Park 4 1 F f** , &;;:$, ? -Fql tr,IJ I I I o .'1 Eq W:::I 1 Exhibit B Murray Field (Burlingame Soccer Center) Murray is located 25O Anza Blvd. This 3 acre facility has an artificialturf field that includes one (11 lacrosse field. ='a I q THE CITY OF BURLINGAME AND BURLINGAME AMERICAN YOUTH This USE AGREEMENT (hereinafter, "AGREEMENT") is made and entered into this _ day of 2018, by and between the CITY OF BURLINGAME (hereinafter, 'ClTf) and BURLINGAME AMERICAN YOUTH SOCCER ORGANIZATION, a non-profit 501(cX3) corporation (hereinafter, "AYSO), who are referred to as a "Party' or collectively the "Parties." WHEREAS, CITY is the fee owner of Bayside Fields, Washington Park, Village Park, Ray Park, Cuernavaca Park, and Munay Field in the City of Burlingame; and NOW, THEREFORE, for and in consideration of the following terms and conditions herein contained, the Parties hereto agree as follows: This AGREEMENT shall become effective upon execution and end on the date ten years following the effective date, in order to provide a ten (10)-year period for AYSO to amortize its annual capital investments in field improvements. Tenant shall have the option, exercisable by written notice to CITY not later than ninety (90) days prior to the expiration of the term, to extend the term of this Agreement for one (1 ) further term of five (5) years on the same terms and conditions as provided in this Agreement. lf AYSO wishes to extend its use of CITYs facilities under this Agreement beyond the original term and option period, it shall so notify CITY at least ninety (90) days prior to the expiration of the option period. CITY shall then evaluate whether the current Agreement and AYSO's actions under it adequately serve the public. Following this assessment, the parties shall confer on any changes and may, at their mutual option, extend this Agreement for an additional term of five (5) years wilh an option period of an additional five (5) years. SOCCER ORGANIZATION USE AGREEMENT RECITALS WHEREAS, the CITY and AYSO desire to enler into this AGREEMENT to allow AYSO to use FACILITIES for recreational soccer use and storage. 1. TERMANDCOMMENCEMENT 1 2. FACILITIES This AGREEMENT covers AYSO's use of six (6) CITY-owned properties, which are collectively referred to as FAClLlf lES. Each property has unique features and uses, which are more particularly described in the attached exhibits- . Bayside Fields, '1125 South Airport Blvd. (EXHIBIT A) . Washington Park,420 Carolan Ave. (EXHIBIT B) . Cuernavaca Park, 3075 Alcazar Dr. (EXHIBIT C) r Village Park, 1535 California Dr. (EXHIBIT D). Ray Park, 1525 Balboa Ave. (EXHIBIT E) . Murray Field, 250 Anza Blvd- (EXHIBIT F) a. AYSO shall have use of FACILITIES for soccer activities pursuant to the terms of this AGREEMENT. AYSO is obligated to do the following: i. Provide CITY stafj with keys and/or codes for all buildings used by AYSO on CITY property. ii. Provide at least 24 hours' notice to the City when vehicles will be parked at the FACILITIES overnight. iii. Provide all personnel necessary to supervise their activities. All AYSO board members and coaches shall have mmpleted background checks as required by their goveming organization. iv. Furnish and supply all equipment and expendable materials that may be necessary for their activities.v. Prevent any nuisance, such as dust or noise that might be created, affecting adjoining residential and/or other properties. vi. Operate any public address system in accordance with the City of Burlingame Municipal Code. vii. Ensure that no signs/banners shall be erected or displayed on the premises without the prior written approval of the Parks and Recreation Director, which approval the Parks and Recreation Director will not unreasonably withhold. All signs/banners will com1ily with all applicable City policies, ordinances and/or regulations, and all applicable state and federal laws or decisions of courts of competent jurisdiction. CITY may revise its policies, ordinances, and/or regulations from time to time within its sole discretioh, and those revisions shall apply to AYSO's signs/banners when adopted. viii. Ensure that there is no subletting of fields. b. USE OF STORAGE SHEDS Only pr+fabricated units, approved by the Parks and Recreation Director, or his or her designee, shall be placed on the FACILITIES. AYSO shall contact, and make arangements with, appropriate CITY 2 3, USE OF FACILITIES t. staff to obtain supervision and guidance in the placement and/or removal of the storage units. Storage units shall be kept in a clean and well-maintained condition. AYSO shall monitor and inspect the storage units on a regular basis throughout the year and immediately remove any graffiti and/or make repairs as needed. AYSO shall paint and/or repair any approved storage units within 72 hours of being notified of needed painting or repairs. This shall include painting and/or removal of graffiti. lf AYSO has not taken corrective action for the painting or maintenance of AYSO's storage units within the 7?-hour time period set forth above, the Parks and Recreation Director, or his or her designee, at his or her sole discretion, shall take necessary steps to correct the non- compliance through the use of CITY'S employees or the hiring of contractors to perform the necessary work. AYSO shall reimburse Clry for any costs incurred in taking this conective action, plus a 5% charge for CITY administration of the repairs, which shall be paid by AYSO with ten (10) business days of receipt of a statemenl of cost from the Parks and Recreation Director. AYSO, their members, and participants, shall each comply with all the requirements, statutes, and codes of all municipal, state, and federal authorities and agencies now in force, orwhich may hereinafter be in force, pertaining to the use of FACILITIES. 5. FEES AYSO agrees to pay the approve{ per player, per hour, and light fees adopted by the Burlingame City Council as stiated in the Master Fee Schedule, as it may be amended from time to time. AYSO shall not remove, alter, construct, cir add to the FACILITIES without the CITY'S express prior written consent. Any such removal, alteration, construction, or addition of any kind to FACILITIES or grounds without the CITY'S written consent shall be a material breach of this AGREEMENT. ln the event of said material breach, CITY may either remove the improvements at AYSO's expense, or CITY may retain such improvements at no cost. AYSO must provide at least 60-day prior written notification to the CITY and receive CITY'S written consent before making any alterations, additions, or improvements to FACILITIES, which will be at AYSO's sole expense, unless othenarise agreed upon in writing. All alterations, additions, or improvements must comply with all applicable laws. All permits must be obtained and sigfled off before any removal, alteration, or construction 3 . . 4. COMPLIANCE WITH ALL LAWS 6. IMPROVEMENTS may begin. No City fees shall be charged to AYSO for such permits. Whenever a physical structure is added to any of the FACILITIES, this AGREEMENT shall be updated to describe the new structure. Any structure that has a permanent poured foundation requires the approval of the City Council and will become the property of the City once installed. Removable structures (i.e. storage sheds) require the approVal of the Director of Parks and Recreation and the ownership will be retained by AYSO. AYSO must remove any structure if requested by CITY. Once the alteration, addition, or improvement has been approved in writing.by the Director of Parks and Recreation and is completed, the Director of Parks.and Recreation will update the agreement exhibit to reflect the alteration, addition, or improvement. AYSO is responsible for all upkeep and maintenance of structures installed on City property. 7. DESTRUCTION OR DAMAGE TO FACILITIES ll for any reason, there is any destruction or damage to the storage sheds then AYSO is responsible for their repair and/or replacement unless, in the course of an investigation conducted by the CITY or its insurer, it is determined conclusively that another party is responsible for such damage, in which case that party shall bear the cost of repairs. This AGREEMENT does not confer any legal responsibility on the CITY to repair or replace any structure for AYSO's use under the terms of this AGREEMENT. 8. NUISANCE ABATEMENT CITY has the authority to abate any public nuisance created by AYSO's performance of the.terms and conditions of this AGREEMENT and use of FACILITIES. AYSO must reimburse CITY for all reasonable fees and costs associated with nuisance abatement or code enforcement. The normal noises, odors, parking, and crowds associated with AYSO's customary operation, maintenance and use of the FACILITIES shall not be deemed a nuisance as defined in Burlingame Municipal Code section ,l.16.010. AYSO shall defend, indemnify, hold free and harmless the CITY, its elected and appointed omcials, officers, attorneys, agents and employees, at AYSO'S sole expense, from and against any and all claims, actions, suits or other legal proceedings brought against the CITY, its elected offlcials, officers, agents and employees arising out of AYSO'S operation, maintenance, and/or use of FACILITIES or its obligations under this AGREEMENT. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by AYSO, its officers, employees, volunteers and/or authorized subconlrabtors, but shall be required whenever any claim, action, complaint, or suit asserts as its basis the negligence, errors, omissions or 4 9. LIABILITIESANDINDEMNIFICATION misbonduct of AYSO, its officers, employees, volunteers and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the ClW, its elected and appointed officials, officers, agents and employees based upon the work performed by AYSO, its officers, employees, volunteers and/or authorized subcontractors under this AGREEMENT whether or not AYSO, its officers, employees, volunteers and/or auihorized subcontractors are specifically named or otheruise asserted to be liable. Under no circumstances shall the CITY be liable for the defense or indemnification of AYSO for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of AYSO. AYSO shall not be liable for damage or injury occasioned by the active negligence or willful misconduct o{ CITY or its agents, contructors or employees. The obligations under this paragraph shall survive the termination or expiration of this Agreement, and shall apply to claims or allegations that accrue during its effective period. CITY shall have no responsibility or liability for loss or damage of any personal property placed or stored in any of the FACILITIES, including but not limited to netting, pitching machines, electrical cables, balls, player equipment, or other items. 10. ASSIGNMENTS AND SUBLEASE Neither CITY nor AYSO may assign or kansfer this AGREEMENT, or any part thereof, without the prior written consent of the other Party. All notices, statements, demands, requests, consents, approvals, authorizations, appointments, or designations hereiunder by either Party to the other will be in writing and will be deemed given and served upon the other Party, if delivered personally or three (3) days after depositing in the United States mail, postage prepaid, addressed to: lf to CITY:lf to Burlingame AYSO: City of Burlingame Attention: Parks and Recreation Director 850 Burlingame Ave Burlingame, CA 94010 Telephone: (650) 558-7300 E-Mail: mglomstad@burlingame.org Burlingame AYSO Attn: President Address: P.O Box 1212 CITY reserves the right to make, or cause to be made, necessary emergency repairs and io access all FACILITIES for such purposes. When feasible, CITY shall provide AYSO verbal or written notice of the need for an emergency repair. lf AYSO does not perform the repair within 24 hours of notice, then CITY shall handle the repair. AYSO shall 5 11. NOTICES 12. EMERGENCYREPAIRS Burlingame, CA 9401 1 E-Mail: rc@burlinqameavso.orq reimburse the CITY for the total cost of the repair, including labor, materials, and equipment, plus a 5% charge for CITY administration of the repair. AYSO shall reimburse! the Clry within ten (10) business days of receipt of an invoice. This AGREEMENT may be terminated, with or without cause, at any time by either Party. AYSO shall provide six (6) months written notice to the CITY. CITY shall provide six (6) months written notice to AYSO. lf CITY lransfers ownership, or if p4rt of or all of FACILITIES is condemned, or access to FACILITIES is changed or lirnited, either Party may, in its sole discretion, terminate this AGREEMENT as it relates to such facilities without any liability by giving the other Party no fewer than ninety (90) days prior written notice. Upon termination, AYSO agrees to remove all AYSO owned equipmenUsupplies, storage sheds and signage and repair any damage caused to FACILITIES to the extent such damage was not the result of active negligence or willful misconduct by the CITY or its agents, contractors, or employe.es. 14. INSURANCE AYSO shall obtain dnd maintain during the life of this AGREEMENT all of the following insurance coverages: Commercial general liability including premises-operations, productsicompleted operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of nol less than Two Million Dollars ($2,000,000.00), combined single limits, per occurrence and aggregate. If independent contractors are retained by AYSO, they shall be required to carry identical coverage as that required for AYSO naming the CITY as additional insured. . t.Endorsements. The comprehensive general liability insurance policy shall contain br be endorsed to contain the following provisions concerning the CITY: 1 . Additional insureds: AYSO, shall defend, indemnify, hold free and harmless the CITY, its elected and appointed ofiicials, officers; agents and employees 2. Other insurance: "Any other insurance maintained by the City of Burlingame shall be excess and not contributing with the insurance provided by this policy." 6 13. TERMINATION Workers' compensation insurance as required by the State of Califomia Certificates of lnsurance: Upon execution of this AGREEMENT, AYSO shall provide the CITY with certificates of insurance showing the insurance-coverages and required endorsements described above- 15. SEVERAB ILITY AND APPLICABLE LAW Whenever possible, each provision of this AGREEMENT will be interpreted in such a manner as to be dffective and valid under applicable law. lf any provision of this AGREEMENT is invalid under applicable law, such provision will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision, or the remaining provisions. This AGREEMENT has been made and entered into in the State of California and the laws of said State will govem the validity and interpretation hereof and the performance hereunder by the parties herein. Venue shall be in San Mateo County. ,16.. WAIVER The failure of CITY or AYSO to insist upon strict performance of any of the terms, conditions, or covenants in this AGREEMENT will not be deemed a waiver of any right or remedy which CITY or AYSO may have and will not be deemed a waiver of any right or remedy for a subsequen! breach or.default of ihe terms, mnditions, or covenants herein contained. This AGREEMENT and all the terms, covenants, conditions, and agreements herein contained will be bihding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. CITY and AYSO are not partners. Nothing herein contained shall be construed to create a partnership or joint venture in any sense. 19. NONDISCRIMINATION As provided by law, AYSO shall not employ any discriminatory practices in its performance of the terms and conditions of this AGREEI\iIENT, including its employment practices or FACILITIES usage. 7 17 BINDING EFFECT 18. NO PARTNERSHIPOR JOINiVENTURE This AGREEMENT expresses the entire agreement between the Parties conceming the subject matter of this AGREEMENT. There are no understandings, agreements, representations, or warranties, express or implied, not set forth or specified in this AGREEMENT. This AGREEMENT supersedes all other agreements, verbal or written. This AGREEMENT may not be amended except in writing signed by both Parties. lN WITNESS WHEREOF, the Parties have hereunto affixed their name by their officers "hereunto duly authorized," on the day and year written above- City of Burlingame, A municipal corporation Burlingame American Youth Soccer Association Lisa K. Goldman City Manager Approved as to form: Heather Gates President Kathleen Kane City Attorney Attest: Meaghan Hassel-Shearer City Clerk 8 20. ENTIREAGREEMENT Exhibit A Bayside Fields Bayside Fields is located at 1125 South Airport Blvd. This 12 acre facility includes two (2) soccer fields and one (1) AYSO storage unit (Job Boxl. AYSO is proposing to remove the Job Box and replace it with a storage unit in the same location similar to the unit at Washington Park. p !?, ! Storiqe gnrl BarsrcirPart r: Exhibit B Washinglon Park Washington Park is loc2ted at 420 Carolan Ave. This 10 acre fucility includes, ten (10! soccer fields, and one (U storage unit. AYSO Storage Unit at washi Pa rk -1. C ./ O StoragE Unit %Y "a * :;..,:s&1!" '&FrrF- P.'- 4 I re Exhibit C Cuernavaca Park Cuernavaca Park is located at 3075 Alcazar Drive. This 5 acre facility includes two (2) soccer fields and one (1) stora8e unit (Job Box). AYSO is proposing to remove the lob Box and replace it with a storage unit in the same location similar to the unit at Washington Park. a* SL!a9e 't Exhibit D Village Park Village Park is located at 1535 california Dr, This 1 acre facility includes four (4) soccer fields. AYSO is proposing to add a storage unit in the in the above location similar to the unit at Washington Park. 4 .e I a ,.1.. f\ Slorage Uiil. , Exhibit E Ray Park Ray Park is located at 1525 Balboa Ave. This 2.5 acre facility includes five (5) soccer fields and one {1) storage unit {job Box), A\5O is proposing to remove the Job Box and replace it with a storage unit in the same Jocation similar to the unit at Washington Park. 1 D ?' a, {'-- {i {. *' ? ! Exhibit F Murray Field (Burlingame Soccer Center) Murray is located 250 Anza Blvd. This 3 acre fa cility has ao a rtificial tu rf field that inclutles three (3) soccer fields and joint use of the storage closet in the Golf Center building. Storage Unit at Murray Field ,F T t' .r -'1.: - , ':. , ! THE CITY OF BURLINGAME AND BURLINGAME YOUTH BASEBALL ASSOCIATION USE AGREEMENT This USE AGREEMENT (hereinafter, "AGREEMENT") is made and entered into this _ day of 2018, by and between the CITY OF BURLINGAME (hereinafter, "ClTy) and BURLINGAME YOUTH BASEBALL ASSOCIATION, a non-proft 501(cX3) corporation (hereinafier, "BYBA"), who are referred to as a "Party" or collectively the 'Parties,' , WHEREAS, the Clry and BYBA desire to enter into this AGREEMENT to allow BYBA to use FACILITIES for recreational baseball use, concession sales, and storage. NOW, THEREFORE, for and in consideration of the following terms and conditions herein contained, the Parties hereto agree as follows: 1 TERM AND CO MMENCEMENT This AGREEMENT shall become effective upon execution and end on the date ten years following the efiective date, in order to provide a ten (10)-year period for BYBA to amortize its annual capital investments in field improvements. Tenant shall have the option, exercisable by written notice to CITY not later than ninety (90) days prior to the expiration of the term, to extend the term of this Agreement for one (1) further term of five (5) years on the same terms and conditions as provided in this Agreement, except that the annual rent as described below shall be $275.00 per year for the batting cages and $275.00 per year for the use of the concession stand during this option period. lf BYBA wishes to extend its use of Clffs facilities under this Agreement beyond the original term and option period, it shall so notifo CITY at least ninety (90) days prior to the expiration of the option period. CITY shall then evaluate whether the current Agreement and BYBA's actions under it adequately serve the public interest and whether the rents provided for in the Agreement provide a sufficient level of reimbursement for Clrys costs. Following this assessment, the parties shall confer on any changes and may, at their mutual option, extend this Agreement for an additional term of five (5) years with an option period of an additional flve (5) years. 1 2.FACILITIES RECITALS WHEREAS, CITY is the fee owner of Bayside Fields, Washington Park, and Cuernavaca Park in the City of Burlingame; and This AGREEMENT covers BYBAs use of three CITY-owned properties, which are collectively referred to as FACILITIES. Each property has unique features and uses, which are more particularly described in the attached exhibits.. Bayside Fields, 1125 South Airport Blvd. (EXHIBIT A),r Washington Pak,420 Carolan Ave. (EXHIBIT B). Cuemavaca Park, 3075 Alcazar Dr. (EXHIBIT C). a. BYBA shall have use of FAGILITIES for baseball activities pursuanl to the terms of this AGREEMENT. BYBA is obligated to do the following: t. ii. iii. iv. vi. vii. viii. Provide CITY staff with keys and/or codes for all buildings used by BYBA on Clry property. Provide at least 24 hours' notice to the City when vehicles will be parked at the FACILITIES overnight, unless such vehicles are used in construction, grading, or maintenance of the field. Provide all personnel necessary to supervise their activities. All BYBA board members and coaches shall have completed background checks as required by their goveming organization. Furnish and supply all equipment and expendable materials that may be necessary for their activities. Prevent any nuisance, such as dust or noise that might be created, affecting adjoining residential and/or other properties. Operate any public address system in accordance with the City of Burlingame Municipal Code. Ensure that no signs/banners shall be erected or displayed on the premises without the prior written approval of the Parks and Recreation Director, which approval the Parks and Recreation Director will not unreasonably wilhhold. All signs/banners will comply with all applicable City policies, ordinances and/or regulations, and all applicable state and federal laws or decisions of courts of competent jurisdiction, CITY may revise its policies, ordinances, andlor regulations from time lo time within its sole discretion, and those revisions shall apply to BYBA's signs/banners when adopted. Ensure that there is no subletting of fields. b. USE OF BATTING CAGES BYBA shall have control over the management and use of the batting cages as identified in Exhibits A and B to this Agreement, and CITY authorizes BYBA or its approved users to conduct batting practice in the batting cages. When reasonably possible, City will give BYBA seven (7) days' notice of any upcoming special events or park closures that may affect BYBA's use of the batting cages- BYBA wili permit Clry or other user groups to use the facility 2 3. USE OF FACILITIES lor bafting practice, at BYBA's scheduling discretion, which will not be unreasonably withheld. All use of the batting cages will be governed by the following rules: - l . The batting cage hours of operation shall be as follows: a. Washington Park: The Washington Park batting cage may only be used Monday to Friday from 8:00 a.m. to 9:00 p.m. and Saturday and Sunday from 9:00 a.m. to 9:00 p.m. b. Bayside Fields: The batting cage(s) at Bayside Fields may only be used from Monday to Sunday from 8:00 a.m. to 9:00 p.m. The CITY may reasonably change the hours of operation based upon neighborhood impact. Notice of any change in batting cage hours of operation will be provided to BYBA in writing at least 30 days in advance, unless circumstances require shorter notice, in which case CITY shall provide the maximum practicable notice, along with a written explanation of the need for a shorter notice period. A BYBA coachlboard member or other user group coach/board member must supervise minors who use the batting cages. BYBA shall maintain the batting cages in accordance with all laws and regulations and applicable sabty standards. The roof, structure and fence of the batting cages shall be kept in good repair and in an attrac-tive condition at all times. CffY shall have the right to enter upon and inspect the batting cages, subject to rea$onable advance notice, to determine vvhether BYBA is complying with this lease and whether the site is being maintained in a reasonaHy safe and attractive manner. lf BYBA fails to maintain or make repairs or replacements as required herein, CITY may notify BYBA in writing of said failures. Should BYBA fail to conect the situation within 60 days thereafter, the Parks and Recreation Direclor may make, or cause to be made, the necessary corrections. However, this notice period may be shortened or waived in light of urgent health or safe$ issues. In which case, CITY may exercise its right to enter and repair or secure the area with as much notice as is practicable under the circumstances. CITY may also order the batting cages closed due to urgent health or safety issues until repairs can be effected. The cost of any repairs done by CITY, including, but not limited, to the cost of labor, materials, and equipment, plus a 5olo charge for CITY administration of the repairs, shall be paid by BYBA with ten (10) business days of receipt of a statement of cost from the Parks and Recreation Director. BYBA shall pay the City rent of $250.00 per year, payable on or before January 1"t each year. This fee will cover electrical costs associated with the operation of the batting cages. The CITY shall be responsible for and shall pay, prior to delinquency, any charges for utilities supplied to the batting cages. v[. t_ ) C. USEOFCONCESSIONSTANDS The CITY is the owner of the two (2) concession stands at Bayside Fields that may be used for the sale of food and other items to participants and spectators. BYBA shall operate the concession stands for the convenience of participants and spectators. BYBA's use of the concession stands under this Agreement is limited to January 2nd to July 31s of each year this Agreement is in effect. From August 1$through January 1$, all appliances will be unplugged, and no food storage will be permitted in the concession stands. From August 1d through January 1o, physical access to the conc€ssion stands by BYBA members andlor affiliates shall only be allowed with prior written permission of City stafi, which shall not be unreasonably withheld. As the operator of the concession stands, BYBA agrees to the following: BYBA will be allowed to utilize the concession stands at Bayside Fields for the purpose of selling food and sundry items at games and special events. No alcoholic beverages shall be sold. BYBA shall provide all personnel and supplies at said concession stand. BYBA may sublet the concession stands to a private vendor with written permission from the Parks and Recreation Director, which consent the Parks and Recreation Director will not unreasonably withhold. A private vendor must follow all of the terms and conditions of this section 3(c) of this AGREEMENT. A private vendor will also be required to obtain a City of Burlingame Business License. No private vendor may operate a personal business out of any City FACILTIES or store personal items in any City FACILITIES. BYBA or its subtenant shall pay the City rent of $250.00 per year, payable on January 1s each year. This fee will cover all ulilities, including water, eleclricity, garbage, and other services associated with the operation of the concession stands. BYBA or its subtenant must obtain permits and pay any fees required by lhe San Mateo County Health Department and must meet all requirements as set forth by the San Mateo County Health Department for the operation of the concession stands. BYBA or its subtenant shall comply with any and all laws pertaining to the operation of such concession facilities. BYBA or its subtenant shall maintain the interior of the facilities and cany insurance upon its contents and personnel in limits of at least $1,000,000 per occurence naming the City as additional insured, evidence of which must be on file with the CITY in the form of a certificate of insurance and current original endorsement at all times during which BYBA is operating or using the CITY's facilities under this IV VI 4 i. lt. It. Agreement. BYBAs rights to use the FACILITIES under this Agreement shall be immediately suspended upon lapse of such coverage and for the duration of time during which coverage is unavailable. Concession stands shall be kept in a clean and well-maintained condition. The FACILITIES may not be used for any activities that do not directly benefit BYBA. d. USEOFSTORAGESHEDS vI vl . [- t. Only pre-fabricated units, approved by the Parks and Recreation Director, or his or her designee, shall be placed on the FACILITIES. BYBA shall contact, and make anangements with, appropriate CITY staff to obtain supervision and guidance in the placement andlor removal of the storage units. Storage units shall be kept in a clean and well-maintained condition. BYBA shall monilor and inspect the storage units on a regular basis throughout the year and immediately remove any graffiti and/or make repairs as needed. BYBA shall paint and/or repair any approved storage units within 72 hours of being notified of needed painting or repairs. This shall include painting and/or removal of graffiti- lf BYBA has not taken corrective action for the painting or maintenance of BYBA's storage units within the 72-hour time period set forth above, the Parks and Recreation Director, or his or her designee, at his or her sole discretion, shall take necessary steps to conect the non- compliance through the use of CITY'S employees or the hiring of contractors to perform the necessary work. BYBA shall reimburse CITY for any costs incuned in taking this conective action, plus a 5% charge for CITY administration of the repairs, which shall be paid by BYBA with ten (10) business days of receipt of a statement of cost from the Parks and Recreation Director. 4. COMPLIANCE WTH ALL LAWS BYBA agrees to pay the approved per player, per hour, and light fees adopted by the Burlingame City Council as stated in the Master Fee Schedule, as it may be amended from time to time. BYBA agrees lo pay the annual fees for the concession stands and the batting cages as described herein. 5 l. BYBA, their members, and participants, shall each comply with all the requirements, statutes, and codes of all municipal, state, and federal authorities and agencies now in force, or which may hereinafter be in force, pertaining to the use of FACILITIES. 5. FEES BYBA shall not remove, alter, construct, or add to the FACILITIES without the CITY'S express prior written consent. Any such removal, alteration, construction, or addition of any kind to FACILITIES or grounds without the CITY'S written consent shall be a material breach of this AGREEMENT. ln the event of said material breach, CITY may either remove the improvements at BYBA's expense, or CITY may retain such improvements at no cost. BYBA must provide at least 60-day prior written notification to the CITY and receive CITY'S written consent befure making any alterations, additions, or improvements to FACILITIES, which will be at BYBA's sole expense, unless othenilise agreed upon in writing. All alteralions, additions, or improvements must comply with all applicable laws. All permits must be obtained and signed off before any removal, alteration, or construction may begin. No City fees shall be charged to BYBA for such permits. \Mrenever a physical structure is added to any of the FACILITIES, this AGREEMENT shall be updated to describe the new structure. Any slructure thal has a permanent poured foundation requires the approval of the City Council and will become the property of the City once installed. Removable stsuclures (i.e. storage sheds) require the approval ofthe Director of Parks and Recreation and the ownership will be retained by BYBA. BYBA must remove any structure if requested by clw. Once the alteration, addition, or improvement has been approved in writing by the Director of Parks and Recreation and is completed, the Director of Parks and Recreation will update the agreement efribit to reflect the alteration, addition, or improvement. BYBA is responsible for all upkeep and maintenance of strudures installed on City property. 7. DESTRUCTION OR DAMAGE TO FACILITIES 6 8. NUISANCE EMENT 6. IMPROVEMENTS. lf, for any reason, there is any destruction or damage to the bailing cages, storage sheds, or concession stands, then BYBA is responsible for their repair and/or replacemenl unless, in the course of an investigation conducted by the CITY or its insurer, it is determined conclusively that another party is responsible for such damage, in which case that party shall bear the cost of repairs. This AGREEMENT does not confer any legal responsibility on the CITY to repair or replace any structure for BYBA's use under lhe terms of this AGREEMENT. clry has the authority to abate any public nuisance created by BYBAs performance of the terms and conditions of this AGREEMENT and use of FACILITIES. BYBA must reimburse CITY for all reasonable fees and costs associated with nuisance abatement or code enforcement. The normal noises, odors, parking, and crowds associated with BYBA'S customary operation, maintenance and use of the FACILITIES shall not be deemed a nuisance as defined in Burlingame Municipal Code section 1 .16.010. BYBA, shall defend, indemnify, hold free and harmless the CITY, its elecied and appoinled officials, officers, attomeys, agents and employees, at BYBA'S sole expense, from and against any and all claims, aetions, suits or other legal proceedings brought against the CITY, its elected officials, officers, agents and employees arising out of BYBA'S operation, maintenance, and/or use of FACILITIES or its obligations under this AGREEMENT. The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by BYBA, its officers, employees, volunteers and/or authorized subcontractors, but shatl be required whenever any daim, action, complaint, or suit asserts as ils basis the negligence, errors, omissions or misconduct of BYBA, its officers, employees, volunteers and/or authorized subcontractors, and/or whenever any claim, action, complaint or suit asserts liability against the CITY, ils elected and appointed officials, officers, agents and employees based upon the work performed by BYBA, its ofiicers, employees, volunteers and/or authorized subcontractors under this AGREEMENT whether or not BYBA, its officers, employees, volunteers and/or authorized subcontractors are specifically named or otherwise asserted to be liable. Under no circumstances shall the CITY be liable for the defense or indemnification of BYBA for claims, actions, complaints or suits arising out of the sole active negligence or willful misconduct of BYBA. BYBA shall not be liable for damage or injury occasioned by the active negligence or willful misconduct of CITY or its agents, contractors or employees. The obligations under this paragraph shall survive the termination or expiration of this Agreement, and shall apply to claims or allegations that accrue during its effective period. CITY shall have no responsibility or liability for loss or damage of any personal property placed or stored in any of the FACILITIES, including but not limited to netting, pitching machines, electrical cables, balls, player equipment, or other items. 10.ASSIGNMENTS D SUBLEASE Neiiher CITY nor BYBA may assign or transfer this AGREEMENT, or any part thereol without the prior written consent of the other Party. All notices, statements, demands, requests, consents, approvals, authorizations, appointments, or designations hereunder by either Party to the olher will be in writing 9. LIABILITIESANDINDEMNIFICATION 11. NOTICES 7 City of Burlingame Attention: Parks and Recreation Director 850 Burlingame Ave Burlingame, CA 94010 Telephone: (650) 558-7300 E-Mail: mglomstad@bur lingame.org Burlingame Youth Baseball Association Attn: President P.O. Box'1633 Burlingame, CA 94010 E-Mail: board@byba.us and will be deemed given and served upon the other Party, if delivered personally or three (3) days afier deposiiing in the United States mail, postage prepaid' addressed to: lf to CITY: lf to BYM: 12. EME Y REP CITY reserves the right to make, or cause to be made, necessary emergency repalrs and to access all FACILITIES for such purposes. when feasible, clTY shall provide BYBA verbal or written noticE of the need for an emergency repair. lf BYBA does not perform the repair within 24 hours of notice, then clTY shall handle the repair. BYBA shall reimburse the clTY for the total cost of the repair, including labor, materials, and equipment, plus a 5olo charge for CITY administration of the repair. BYBA shall reimburse the CITY within ten (10) business days of receipt of an invoice. This AGREEMENT may be terminated, with or without cause, at any time by either Party. BYBA shall provide six (6) months written notice to the clw. clTY shall provide six (-6) months written notice to BYBA. lf CITY transfers ownership, or if part of orall of FACILITIES is condemned, or access to FACILITIES is changed or limited, either Party may, in its sole discretion, terminate this AGREEMENT as it relates to such facilities without any liability by giving the other Party no fewer than ninety (90) days prior written notice. Upon termination, BYBA agrees to remove all BYBA owned equipmenUsupplies, storage sheds and signage and repair any damage caused to FACILITIES to the extent such damage was not the result of active negligence or willful misconduct by the clTY or its agents, contractors, or employees. 13. TERMINATION 14. INSURANCE BYBA shall obtain and maintain during the life of this AGREEMENT all of the following insurance coverages: Commercial general liability including premises-operations' products/compleled operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than Two Million Dollars ($2,OOO,O0O.0O), combined single limits, per occunence and aggregate. 8 .Workers' compensation insurance as required by the State of Califomia iii.Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the bllowing provisions conceming the CITY: 1. Additional insureds: BYBA" shall defend, indemnify, hold free and harmless the CITY, its elected and appointed officials, officers, agents and employees 2. Olher insurance: 'Any other insurance maintained by the City of Burlingame shall be excess and not contributing with the insurance provided by this policy." Certificates of lnsurance: Upon execution of this AGREEMENT, BYBA shall provide the CITY with certificates of insurance showing the insurance coverages and required endorsements described above. 15. SEVERABILIryANDAPPLICABLE LAW Whenever possible, each provision of this AGREEMENT will be interpreted in such a manner as to be effec{ive and valid under applicable law. lf any provision of this AGREEMENT is invalid under applicable law, such provision will be inefEctive to the exlent of such prohibition or invalidity, without invalidating the remainder of such provision, or the remaining provisions. This AGREEMENT has hn made and entered into in the State of Calibmia and the laws of said State will govern the validity and interpretation hereof and the perficrmance hereunder by the parties herein. Venue shall be in San Mateo County. 16. WAIVER The failure of Clry or BYBA to insisl upon stric't performance of any of the terms, conditions, or covenants in this AGREEMENT will not be deemed a waiver of any right or remedy which CITY or BYBA may have and will not be deemed a waiver of any right or remedy for a subsequent breach or default of the terms, conditions, or covenants herein contained. 17. BINDING EFFECT This AGREEMENT and all the terms, covenants, conditions, and agreements herein conlained will be binding upon and inure to the benefit of the Parties hereto and their respective su@essors and assigns. 9 clTY and BYBA are not partners. Nothing herein contained shall be construed to create a partnership or joint venture in any sense. 19.NONDISCR IMINATION As provided by law, BYBA shall not employ any discriminatory practices in its performance of the terms and conditions of this AGREEMENT, including its employment practices or FACILITIES usage. 20 IREAGREEM This AGREEMENT expresses the entire agreement between the Parties conceming the subject matter of this AGREEMENT. There are no understandings, agreements, repiesentations, or wananties, express or implied, not set forth or specified in this AGREEMENT. This AGREEMENT supersedes all other agreements, verbal or written. This AGREEMENT may not be amended except in writing signed by both Parties. lN WITNESS WHEREOF, the Parties have hereunto affixed their name by their officers "hereunto duly authorized," on the day and year written above. Burlingame Youth Baseball Association Lisa K. Goldman City Manager Approved as to form: Jo Co-Pres son nt Attest 10 18. NO PARTNERSHIP ORJOINTVENTURE City of Burlingame, A municipal corporation Kathleen Kane City Attomey Meaghan Hassel-Shearer City Clerk 11 Exhibit A Bayside Fields Bayside Fields is located at 1125 South Airport Blvd. This 12-acre facility includes fve (5) ballfields, two (2) concession stands, one (1) batting cage, six (6) storage units and one ('1) score booth. i o e ,'.. /,1 -/ J Storage Battino Caqe The bafting cage at Bayside Fields may only be used from Monday to Sunday fiom 8:00 a.m. to 9:00 p.m. 2 Bayside Fields batting cage I tI t) :t Bayside Fields Concession Stand #1 Bayside Fields Concession Stand #2 3 Concession Stands at Bavside Fields { F; i .#{. !:F,r* b- <' :, - Bayside Fields storaoe unit next to Bavside #1 Score booth at Bayside #1 <lr Bavside Fields Storaqe Units next to Field #2 I*_ |*fl[ ;, '1- I I 5 Bavside Fields Storaqe Unit between Field #3 and #4 )t. .tc' ._-' T I I .rg 6 Exhibit B Washington Park Washington Park is located al 420 Carolan Ave. This 1o-acre facility includes two (2) ballfields, one (1) batting cage, and one (1)storage unit. 7 f^}:.3atlrcg Cage , B ,,i Washinqton Park Battins Caqe The Washington Park batting cage may only be used Monday to Friday from 8:00 a.m. to 9:00 p.m. and Saturday and Sunday fiom 9:00 a.m. to 9:00 p.m. Washinqton Park Storaoe Unit 't : Exhibit C Cuernavaca Park Cuernavaca Park is located at 3075 Alazar Drive. This S-acre facility includes one (1) ballfield and one (1) storage unit. Cuernavaca Park Storaoe Unit o I ? I {("a t,