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HomeMy WebLinkAboutAGENDA REPORT 2002 0918 CC REG ITEM 11FTO: FROM: DATE: SUBJECT: MOORPARK CITY COUNCIL AGENDA REPORT 1m I I • F• CITY nF' 400RFARX, C;ALTFORNTA City Cmincil Meefing of —LIP 1rS a a�t�S -- ACTION': ,I pc 6yy-% fnev) a- iuy1. • r The Honorable City Council DISCUSSION John Hartnett, Recreation Superintendent -i" September 6, 2002 (CC Meeting of September 18, 2002) Consider Moorpark Soccer Club (MSC) Use Agreement In 1997, the City Council approved use agreements with the major youth sports organizations in Moorpark. The agreements were for a term of five years, and among other things, they identified parks and facilities amenities, use dates, site and amenity improvements, and maintenance responsibilities granted to each organization. The use fee charged to each group for park amenities was $1.00 per year. Moorpark Basketball Association was charged a discounted rate of $12 per hour for use of the Gymnasium. Moorpark Girls Softball Association, American Youth Soccer Organization and Packer Football also pay for the use of the Concession facilities at AVCP, from the proceeds of their snack sales. The Moorpark Soccer Club (MSC) agreement is the final contract to expire this year. Once approved, all local sports organizations will have five -year agreements with the City. Staff has drafted a new agreement for MSC based on the previous agreement and provided it to them for review and comment. MSC has indicated that the provisions of the new agreement are acceptable. The agreement addresses the following conditions: If the proposed agreement is approved, MSC will have use of Campus Canyon Park between August through November, of each year. Use of the facilities will be $1 per year, each year the agreement is in effect. The field portion of the premises will be used for MSC's authorized games, practices, and training sessions. A schedule of games and practices shall be furnished Honorable City Council September 18, 2002 Page 2 to the City prior to July 10 of each year, taking into account City recreation needs as well as the needs of MSC. MSC agrees to perform routine maintenance, including marking field lines as needed and pick up and disposal of trash after scheduled activities The agreement also indicates that MSC, in order to retain the rights under the agreement, will maintain a membership of no less than 75 players with 80 percent living within Moorpark's City limits. SUNIIKARY As stated, the agreement is consistent with MSG's previous use agreement and agreements the City has with other youth sports groups. The dates, fees, and maintenance requirements have not changed. MSC agrees to insure and indemnify the City, refrain from making any improvements without City authorization, abide by facility rules established by the City, and acknowledge that the City retains the right to use the parks and facilities granted for use under the agreement, with prior notice by the City. The proposed agreement is attached to this Agenda Report. The Council is being asked to approve the agreement for Moorpark Soccer Club. STAFF RECOMMENDATION Approve five -year use agreement with Moorpark Soccer Club as submitted subject to final language approved by City Manager and City Attorney and authorize the City Manager to execute the agreement on behalf of the City. Attachments: Moorpark Soccer Club Agreement AGREEMENT BETWEEN THE CITY OF MOORPARK AND MOORPARK SOCCER CLUB THIS USE AGREEMENT (hereinafter "Agreement ") is made and entered into as of this day of , 2002 by and between the CITY OF MOORPARK (hereinafter "City ") and Moorpark Soccer Club, Inc. a non profit corporation (hereinafter "MSC "). THE PARTIES AGREE THAT: Section 1. PREMISES City, in consideration of the fees to be paid and of the indemnification, covenants, and agreements agreed to herein, hereby grants to MSC, and MSC hereby accepts from City, the use of certain real property and associated facilities and equipment including but not limited to the athletic field and park area at Campus Canyon Park (hereinafter "CCP ") described in Exhibit "A" attached hereto and by this reference incorporated herein, together with any and all improvements thereon (all of which are hereinafter referred to as the "Premises "). Section 2. TERM The term of this Agreement shall be for five (5) years, commencing on December 1, 2002 and ending on November 30, 2007, provided however, that City's obligations hereunder shall be contingent upon MSC's payment in full of all use and related fees and fulfillment of all obligations as set forth in this Agreement. This Agreement may be terminated by either party with or without cause by providing written notice no less than thirty (30) days in advance of such termination. Section 3. USE FEES MSC further agrees to pay the City at time of execution of Agreement, in total, annual use fees as follows: A. One Dollar ($1.00) for the period of December 1, 2002, through November 30, 2007, and for every year thereafter on December 1 through the term of Agreement for the use of Park Area; and B. In order for MSC to retain the rights granted under the Agreement, it must maintain a membership (players) that consists of no less than 75 (seventy -five) members and at least 80 (eighty) percent of the membership must live within the Moorpark City limits. Section 4. ADJUSTMENTS OF USE FEES For the year December 1, 2002, and for each year this Agreement is in effect, the City may adjust the Use Fees, referenced in Section 3.A, by giving MSC written notice prior \\ mor_ pri _sery \home_foldersVHartnett\MSC Agreement.doc to July 1, of each year. If no such notification is given, the Use Fees for the next year shall be the same amount as the prior year. Section 5. USE The Premises shall be used for the following specified purposes only and shall not be used for any other purpose without the prior written consent of the City: A. The field portion of Premises shall be used for MSC's authorized games, practices, and training sessions for coaches and referees tied specially to official seasons, held during the months of August through November (Fall Season) each year. A schedule of said games and practices shall be furnished to the Director of Community Services for the City's written approval prior to July 10 of each year, which approval shall not be unreasonably withheld. B. At all times, City retains the right to use Premises at its discretion for City sponsored and co- sponsored events upon no less than thirty (30) days written notice to MSC. During the Fall season, the general public shall have access to and use of said Premises at a time of day and or on a day that is not included in the schedule submitted by MSC in writing and approved in writing by the City. MSC shall not have priority use of Premises outside of the approved schedule. At all times, the City also reserves the right to restrict use of certain fields on Premise to manage and protect the conditions of the turf. Any requests for additional use not authorized in this agreement shall be made in writing to City. C. The sale and consumption of food and beverages shall be at the discretion of MSC with the exception that no alcoholic beverages shall be sold or consumed on Premises. MSC shall obtain all required health and other permits for the preparation and sale of food and beverages. D. In the event the turf is too wet to conduct soccer games or practices without causing damage, as solely determined by the City, MSC agrees to cancel its scheduled game or practice. E. MSC agrees not to drive any vehicle, or allow any vehicle to be driven onto the Premises or any area of Campus Canyon Park with out the written consent of the City. Section 6. SIGNS MSC agrees not to permit the construction or placement of any sign, signboard or other form of outdoor advertising on the Premises without the prior written consent of the City. In the event of a violation of this provision by MSC or any one claiming under MSC, MSC hereby authorizes City as MSC's Agent, to enter the Premises and to remove and dispose of any such sign, signboard or other advertising, and to charge the cost and expense of any such removal and disposal to MSC who agrees to pay the same upon 2 demand. This provision does not exclude the use of identification banners for individual teams and sponsors, which may be displayed during games and shall be removed following the end of each game. Section 7. INDEMNIFICATION AND HOLD HARMLESS MSC hereby agrees to hold harmless and indemnify City, its officers, agents, and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense and /or liability arising or growing out of loss or damage to property, including City's own personal property, or injury to or death of persons, including employees of City, resulting in any manner whatsoever directly or indirectly, by reason of this Agreement or the use of the Premises by MSC or any person claiming use under or through MSC unless such loss, damage, injury, or death is due to the sole negligence of the City. MSC shall also hold the City harmless from all costs and expenses, including costs of investigation arising out of or incurred in the defense of any claim, proceeding, or action brought for injury to persons or damage to property, resulting from or associated with the use of said Premises under this Agreement and shall further save and hold harmless the City from any and all orders, judgements, and decrees which may be entered in any and all such suit or actions. MSC and all others using said Premises under this Agreement hereby waive any and all claims against the City of damage to persons or property in, or about said Premises. The City does not, and shall not, waive any rights that it may have against MSC by reason of this Section, because of the acceptance by the City, or the deposit with the City, of any insurance policy or certificate required pursuant to this Agreement. Said hold harmless and indemnification provision shall apply regardless of whether or not said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost or expense described in this Section. The provisions of this Section 7 shall survive the expiration or termination of this Agreement. Section 8. LIABILITY INSURANCE As a condition precedent of the effectiveness of this Agreement, MSC shall procure, and thereafter maintain in full force and effect at MSC's sole cost and expense, a public liability insurance policy written with a company acceptable to City and authorized to do business in the State of California. Such policy shall provide for a minimum coverage of One Million Dollars ($1,000,000.00) for bodily injury or death of any person or persons in any one occurrence, and Five Hundred Thousand Dollars ($500,000.00) for loss by damage or injury to property in any one occurrence and shall include automobile coverage. The policy shall contain a provision providing for a broad form of contractual liability, including Product Liability coverage if food and beverages are dispensed on Premises. The policy or policies shall be written on an occurrence basis. The policy shall name MSC as the insured and the City as an additional insured. The policy shall also provide that the City shall be notified in writing, at least thirty (30) days prior to any termination, amendment cancellation or expiration thereof. MSC shall furnish City 3 evidence of all insurance policies required by this Agreement in the form of a Certificate of Insurance and Endorsement Certificate. Section 9. CASUALTY INSURANCE The parties each specifically acknowledge that City shall not be obligated to keep the Premises insured against fire, or any other insurable risk. MSC hereby and forever waives all right to claim or recover damages from City in any amount as the result of any damage to the Premises by fire, earthquake, flooding, storm or any other cause. Section 10. IMPROVEMENTS MSC shall not make any alterations, additions, or improvements upon the Premises without the prior written consent of the City. All alterations, additions and improvements shall be done in a good and workmanlike manner and diligently prosecuted to completion, and shall be performed and maintained in strict accord with all Federal, State, County, and local laws, ordinances, codes and standards relating thereto. Performance of work shall be subject to City monitoring and inspection. At City's sole discretion, work may be stopped if it does not conform to City specifications and standards. Unless otherwise expressly agreed to in writing by 'the City, any alterations, additions and improvements shall remain on and be surrendered with the Premises upon the expiration or termination of this Agreement. MSC shall timely pay all costs associated with any and all improvements, and shall keep the Premises free and clear of all mechanics liens. MSC agrees to and shall indemnify, defend and save City free and harmless against all liability, loss, damage, costs, attorney's fees and other expenses of any nature resulting from any MSC alterations, additions or improvements to the Premises. At such time as MSC vacates Premises, all improvements to Premises not already owned by City shall become the property of the City unless otherwise authorized by City in writing. Section 11. FLAMMABLE MATERIAL, WASTE AND NUISANCES MSC agrees that it will not place or store any flammable materials on the Premises, that it will not commit any waste or damage, nor suffer any to be done. MSC also specifically agrees that it will not allow others to take such actions on the Premises. MSC further agrees that it will keep the Premises clean, free from weeds, rubbish and debris and in a condition satisfactory to City. MSC shall also provide adequate controls for dust, odors, noise which may emanate from the Premises or from MSC's activities on adjacent property and take appropriate steps necessary to prevent dust contamination of City's facilities located on, near or adjacent to the Premises. MSC agrees to take preventative action to eliminate such dust, odor, noise or any other nuisance which may disturb the adjacent or nearby community and agrees to be responsible for and to assume all liability for such dust, odor, noise or other nuisance M 6 St disturbances. MSC also agrees that it shall not use amplified sound or field lighting on Premises for any reason, without the prior written consent of City. Notwithstanding the above, MSC shall not install, operate or maintain, or cause, or permit to be installed, operated or maintained any electrically charged fence on the Premises. Section 12. PESTICIDES AND HERBICIDES MSC agrees that prior to any application of either pesticides or herbicides, it shall receive written consent from City, and further any pesticide or herbicide applications on the Premises shall be made in accordance with all Federal, State, County and local laws. MSC further agrees to dispose of any pesticides, herbicides or any other toxic substances, which are declared to be either a health or environmental hazard in such a manner as prescribed by law. This shall include, but shall not be limited to, contaminated containers, clothing, equipment or any other contaminated material. Section 13. STORAGE TANKS Notwithstanding anything to the contrary set forth in this Agreement, MSC shall not have the right to install underground or above ground storage tanks, as defined by any and all applicable laws or regulations, without the prior written consent of the City. Section 14. HAZARDOUS MATERIALS INDEMNITY MSC hereby agrees to indemnify and hold harmless City, and its respective officers, employees, and agents, from and against any and all claims, actions, losses, liabilities, costs and expenses: (a) including, without limitation, all foreseeable and all unforeseeable consequential damages, directly or indirectly arising out of the use, generation, storage or disposal of Hazardous Material on the Premises by MSC; and (b) including, without limitation, the cost of any required or necessary repair, cleanup, or detoxification and the preparation of any closure or other required plans, to the full extent that such action is attributable, directly or indirectly, to the presence, or use, generation, storage, release, threatened release, or disposal of Hazardous Materials on the Premises by MSC. As used in this Section, Hazardous Materials means any flammable explosives, radioactive materials, asbestos, PCBs, hazardous water, toxic substances of related materials, including, without limitation, substances, defined as "hazardous substances ", "hazardous materials ", or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 USC, Section 9601, et seq.; the Resource Conservation and Recovery Act, 42 USC, Section 6901, et seq.; the Toxic Substances Control Act, 15 USC, Section 2601, et seq.; any other Federal, State or local law applicable to the Premises; and in the rules and regulations adopted or promulgated under or pursuant to any of said laws. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. Section 15. UTILITIES E MSC agrees to pay a pro rata share of all charges and assessments for or in connection with electricity, water, and sewer and any other utilities which may be furnished to or used upon the Premises by MSC during the period covered by this Agreement with exception of those addressed in Section 3 of this Agreement. It is further agreed that in the event MSC shall fail to pay the above mentioned charges when due, City shall have the right to pay the same on demand, together with interest thereon at the maximum rate allowed by law and to charge the cost and expense to MSC who agrees to pay the same upon demand. City shall bill MSC for said charges, which shall be in addition to Use Fee identified in Section 3. Section 16. MAINTENANCE Except as specifically provided for in the Agreement, all maintenance of, and repairs to Premises shall be done at City's sole discretion and shall be performed by City force account or by City's authorized agent unless approved by City in writing. All maintenance and repair authorized to be performed by MSC shall adhere to City specifications and standards. All improvements shall meet City and other applicable codes, regulations, and standards including but not limited to building and zoning codes. During the period of August 1 through November 30 MSC shall be responsible to perform the following maintenance on Premises: Mark soccer field lines using only white, water -based acrylic paint manufactured specifically for marking lines on sports turf and athletic fields. Athletic field paint should not contain calcium carbonate, vinyl copolymers, herbicides, or pesticides. 2. Pick up trash on and around Premises and provide for additional trash containers if needed and so directed by City. On each day of use following the last scheduled game or practice, empty contents of trash containers into trash dumpster. 3. In the event MSC desires additional field maintenance, such as, but not limited to, weeding, aeration, mowing, and fertilization, above and beyond that which is routinely provided for by the City, it shall first seek the written approval of the City. Any such additional maintenance work approved by the City in writing shall be provided and paid for solely by MSC and any such approved work shall comply with City standards. City shall not be obligated to repair, replace or maintain the Premises in any manner throughout the term of this Agreement. City shall not be obligated to perform any precautionary or preventative measures with respect to the Premises, including, but not limited to drainage and flood control measures. Should City perform any of the foregoing, such services shall be at the sole discretion of City, and the performance of such services shall not be construed as an obligation or warranty by City of the future or ongoing performance of such services. m Section 17. ENTRY BY CITY City may enter upon the Premises at all reasonable times to examine the condition thereof, and for the purpose of providing maintenance and making such repairs as City desires to make. Section 18. GOVERNING LAW MSC agrees that in the exercise of its rights under this Agreement, MSC shall comply with all applicable Federal, State, County and City laws and regulations in connection with its use of the Premises. The existence, validity, construction, operation and effect of this Agreement and all of its terms and provisions shall be determined in accordance with the laws of the State of California. Section 19. DISCRIMINATION MSC agrees not to discriminate against any person or class of persons by reason of race, color, creed, or national origin in the use of the Premises. Section 20. ASSIGNMENT AND SUBLETTING MSC shall not assign this Agreement, or any interest therein, and shall not assign use of the Premises or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person (the agents and servants of MSC excepted) to occupy or use the Premises, or any portion thereof, without the prior written consent of City. A consent to one assignment, subletting, occupation, or use by another person shall not be deemed to be consent to any subsequent assignment, subletting, occupation, or use by another person. This Agreement shall not, nor shall any interest therein, be assignable, as to the interest of MSC, by operation of law, without the written consent of City. Any assignment or subletting without such consent shall be void, and shall, at the option of the City, terminate this Agreement. No legal title or interest in Premises is created or vested in MSC by this Agreement. 21. INSOLVENCY OR BANKRUPTCY If MSC shall be adjudged bankrupt or insolvent, this Agreement shall thereupon immediately terminate and the same shall not be assignable by any process of law, or be treated as an asset of the MSC under such adjudication, nor shall it pass under the control of any trustee or assignee by virtue of any process in bankruptcy or insolvency, or by execution or assignment for the benefit of creditors. If any such event occurs, this Agreement shall immediately become null and void and of no effect, and City may thereupon repossess said Premises and all rights of the MSC thereupon shall cease and terminate. 7 CR r� 1171 Section 22. DEFAULT OR BREACH Except as otherwise provided, at any time one party to this Agreement is in default or breach in the performance of any of the terms and conditions of this Agreement, the other party shall give written notice to remedy such default or breach. If default or breach is remedied within 30 days following such notice, then this Agreement shall continue in full force and effect. If such default or breach is not remedied within 30 days following such notice or if the nature of the default is such that it cannot reasonably be cured within 30 days, if MSC fails to commence to cure within the 30 day period, the other party may, at its option, terminate this Agreement. Such termination shall not be considered a waiver of damages or other remedies available to either party because of such default or breach. Each term and condition of this Agreement shall be deemed to be both a covenant and a condition. Section 23. INTERPRETATION Should interpretation of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement was prepared by the parties jointly and equally, and shall not be interpreted against either party on the ground that the party prepared the Agreement or caused it to be prepared. Section 24. WAIVER A waiver by either party or any default or breach by the other party in the performance of any of the covenants, terms or conditions of this Agreement shall not constitute or be deemed a waiver of any subsequent or other default or breach. Section 25. ACQUIESCENCE No acquiescence, failure or neglect of any party hereto to insist on strict performance of any or all of the terms hereof in one instance shall be considered or constitute a waiver of the rights to insist upon strict performance of the terms hereof in any subsequent instance. Section 26. PARTIES BOUND AND BENEFITED The covenants and conditions herein contained shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto; and all of the parties hereto shall be jointly and severally liable hereunder. Section 27. CONDEMNATION If the whole of the Premises should be taken by a public authority under the power of eminent domain, then the term of this Agreement shall cease on the day of possession by the public authority. If a part only of the Premises should be taken under eminent domain, MSC shall have the right to either terminate this Agreement or to continue in possession -N of the remainder of the Premises. If MSC remains in possession, all of the terms hereof shall continue in effect, with the fees payable being reduced proportionately for the balance of the Agreement term. Section 28. TIME Time is of the essence of this Agreement. Section 29. REMEDIES In case of the failure or refusal of MSC to comply with and perform each and all of the terms and covenants on its part herein contained, this Agreement and all rights hereby given shall, at the option of City, cease and terminate, and City shall have the right forthwith to remove MSC's personal property from the Premises at the sole cost, expense and risk of MSC, which cost and expense MSC agrees to pay to City upon demand, together with interest thereon at the maximum rate allowed by law from the date of expenditure by City. Section 30. NOTICES AND PAYMENTS All notices required under this Agreement including change of address shall be in writing, and all notices and payments shall be made as follows: A. All payments and notices to MSC shall be given or mailed to the current MSC President /Commissioner. It is the responsibility of MSC to notify City when there has been a change with regard to the individual serving as President/ Commissioner and to provide the City with name, address, and 24 -hour contact phone number of the new President /Commissioner: Moorpark Soccer Club 3865 Huntercrest Ct. Moorpark, CA 93021 24 -Hour Emergency Contact Person: Jay Greene Phone Number: 523 -2753 B. All payments and notices to City shall be given or mailed to: City of Moorpark Director of Community Services 799 Moorpark Avenue Moorpark, CA 93021 Phone Number: 529 -6864 9 Section .31. PARTIAL INVALIDITY If any term, covenant, condition or provision of this Agreement is found by a Court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. Section 32. GENDER AND NUMBER For the purpose of this Agreement wherever the masculine or neuter form is used, the same shall include the masculine or feminine, and the singular number shall include the plural and the plural number shall include the singular, wherever the context so requires. Section 33. PARAGRAPH HEADINGS Paragraph headings in this Agreement are for convenience only and are not intended to be used in interpreting or construing the terms, covenants and conditions of this Agreement. Section 34. MODIFICATION This Agreement may be terminated, extended or amended in writing by the mutual written consent of the parties hereto. Such amendments may be executed by the City Manager on behalf of the City. Section 35. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the parties, and supersedes all previous negotiations and understandings between the parties. There are no representations, warranties or commitments, oral or written, other than those expressly set forth herein. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representative as of the date first written above. City of Moorpark Moorpark Soccer Club LIM By: Steven Kueny, City Manager President/Commissioner Attest: C. Deborah S. Traffenstedt, City Clerk 10