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HomeMy WebLinkAboutAGENDA REPORT 2018 0620 CCSA REG ITEM 10QCITY OF MOORPARK, CALIFORNIA City Council Meeting of June 20, 2018 ACTION Approved staff recommendation BY M. Benson Q. Consider Moorpark Girls Softball Association Facility Use Agreement. Staff Recommendation: Approve the Moorpark Girls Softball Association’s Facility Use Agreement for the term of July 1, 2018 through June 30, 2021 with staff recommendations as contained in the agenda report ; and authorize the City Manager to sign the Agreement, subject to final language approval by the City Manager. Item: 10.Q. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Jeremy Laurentowski, Parks and Recreation Director BY: Stephanie Anderson, Recreation Services Manager DATE: 6/20/2018 Regular Meeting SUBJECT: Consider Moorpark Girls Softball Association Facility Use Agreement BACKGROUND AND DISCUSSION On May 16, 2018, draft facility use agreements (Use Agreements) for youth sports organizations (Organizations) were presented to the City Council. These Use Agreements grant priority use of facilities, establish reduced use fees, and detail the requirements and obligations of the Organizations. With the exception of Moorpark Girls Softball Association (MGSA), the City Council approved the Use Agreements for the term of July 1, 2018 through June 30, 2021. At the May 16th City Council meeting, representatives of Moorpark Girls Softball Association (MGSA) expressed concern over the proposed Use Agreement for their League particularly as it related to maintenance requirements and costs for field maintenance. MGSA representatives were concerned primarily about the fields at Mountain Meadows Park and the requirement that they maintain those fields when their use has decreased. They also expressed concern regarding the fact that rental use from the public has increased at Mountain Meadows Park. MGSA representatives expressed concern about bearing or sharing maintenance costs for Arroyo Vista Community Park fields for things such as vandalism or wear and tear from public or City program use. Additionally, MGSA representatives felt they did not have sufficient time or notice to thoroughly review the draft agreements. Their agreement was pulled in order to allow staff time to address MGSA’s concerns. Staff met with MGSA representatives on May 22, 2018 and agreed to make additional revisions to the Use Agreement based on MGSA’s use of fields. The revised draft Use Agreement has been reviewed by MGSA representatives and they have stated that they are satisfied with the changes. Following is a summary of the revisions that were made to MGSA’s draft Use Agreement. Item: 10.Q. 963 Honorable City Council 6/20/2018 Regular Meeting Page 2 PREMISES Assigned Fields: Except for tournaments, the two ball fields at Mountain Meadows Park were removed from use under the Use Agreement. ROUTINE MAINTENANCE AND OPERATIONS Maintenance: All maintenance requirements for Mountain Meadows Park have been removed, consistent with the removal of the Mountain Meadows fields in the Premises section. Additionally, the responsibility for repairs due to vandalism and the removal of graffiti (except on MGSA owned property) has been transferred to the City. This is consistent with the agreements for all Organizations. Portable Light Towers: Language was added to allow MGSA to use portable light towers during tournaments. This is similar to an allowance already included in AYSO’s Use Agreement. FISCAL IMPACT As stated in the May report, there is no impact to the City’s operating budget; however, there may be an increase in park rental revenue due to the increase in hourly field use fees. STAFF RECOMMENDATION Approve the Moorpark Girls Softball Association’s Facility Use Agreement for the term of July 1, 2018 through June 30, 2021 with staff recommendations as contained in the agenda report, and authorize the City Manager to sign the Agreement, subject to final language approval by the City Manager. Attachment: Draft Moorpark Girls Softball Agreement 964 MGSA Use Agreement Page 1 of 22 AGREEMENT BETWEEN THE CITY OF MOORPARK AND MOORPARK GIRLS SOFTBALL FOR USE OF CITY FACILITIES THIS AGREEMENT, made and entered into this __________day of ________________, 20152018, between the CITY OF MOORPARK, a municipal corporation located in the County of Ventura, State of California, hereinafter referred to as "City" and MOORPARK GIRLS SOFTBALL, a nonprofit organization, hereinafter referred to as "MGS". W I T N E S S E T H: WHEREAS, youth sports programs are a valuable asset to the Moorpark community; and WHEREAS, MGS provides softball programs for the youth of the Moorpark community; and WHEREAS, MGS desires to use City sports facilities; and WHEREAS, the Moorpark City Council has authorized the implementation of facility use agreements for Moorpark nonprofit youth sports organizations in order to provide special conditions, priority use, and reduced use fees to the youth sports organizations. NOW, THEREFORE, in consideration of the mutual covenants, benefits, and premises contained herein, the parties hereto agree as follows: 1. Premises City, in consideration of the fees to be paid and of the indemnifications, covenants, and agreements agreed to herein, hereby grants to MGS, and MGS hereby accepts from City, the use of certain real property and associated facilities and equipment at Arroyo Vista Community Park, hereinafter “AVCP”, and Mountain Meadows Park, hereinafter “MMP,” including the following, as described below and in Attachment "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" for the following use periods: A. During the spring season, Ssoftball fields 1, 2, 3, and 4 at AVCP. The spring season shall start no earlier than February 1 and end no later than June 30. Actual fields allocated may be less than described above, and shall be governed by the “Moorpark Parks and Recreation Master Plan” standard field allocations for games. Said allocations for softball will be one (1) field per eight (8) teams, as specified below: One (1) softball field for every eight (8) teams in U10 Division and under. One (1) softball field for every eight (8) teams in U12 Division. One (1) softball field for every eight (8) teams in U14 Division and over. At City’s sole discretion, other fields may be temporarily assigned to MGS if all, or a 965 MGSA Use Agreement Page 2 of 22 portion of, fields listed above are not available due to closure for maintenance or use by City for its own programs. B. During the fall season and other use periods including but not limited to training clinics, camps, and advanced, specialized, or year-round team practices not associated with a specific season, softball fields 1 and 2 at AVCP. Softball fields 3 and 4 and AVCP may also be used if such use does not interfere with AYSO’s use of Premises as described in their Agreement. The fall season may begin no earlier than August 1 and may conclude no later than November 30. Actual fields allocated may be less than described above, and shall be governed by the “Moorpark Parks and Recreation Master Plan” standard field allocations for games. Said allocations for softball will be one (1) field per eight (8) teams, as specified below: One (1) softball field for every eight (8) teams in U10 Division and under. One (1) softball field for every eight (8) teams in U12 Division. One (1) softball field for every eight (8) teams in U14 Division and over. At City’s sole discretion, other fields may be temporarily assigned to MGS if all, or a portion of, fields listed above are not available due to closure for maintenance or use by City for its own programs. C. For up to three (3) tournaments, softball fields 1, 2, 3, and 4 at AVCP and softball fields 1 and 2 at MMP. Each tournament may not exceed two (2) weekends or four (4) total days. Weekends for each tournament must be consecutive, unless facilities are not available due to City use, maintenance, holidays, or other rental use. Tournament use between August 1 and December 30 may not interfere with use of fields by American Youth Soccer Organization Region 363 (AYSO) or Moorpark Packers dba Moorpark Musketeers Youth Football (MUSKETEERS) use of Premises as described in their respective Agreements. At City’s sole discretion, other fields may be temporarily assigned to MGS if all, or a portion of, fields listed above are not available due to closure for maintenance or use by City for its own programs. D. The Snack Bar facility and storage room adjacent to the softball fields at AVCP during the spring season only. Storage room is approximately 156 square feet of storage space located on the east side of the storage building, bounded by a chain link fence on the west side of the storage area. Storage room or area may be moved or modified with thirty (30) days written notice from City. C. Softball Fields 1 and 2 at MMP. Actual fields allocated will be limited to one (1) field per eight (8) teams. At City’s sole discretion, other fields may be temporarily assigned to MGS if all, or a portion of, fields 966 MGSA Use Agreement Page 3 of 22 listed above are not available due to closure for maintenance or use by City for its own programs. For use of City facilities beyond or other than described above, MGS agrees to obtain a park rRental permit Permit and pay rental fees as described in the current Park Rental Rules and Park Rental Fees Resolutions. 2. Term The term of this Agreement shall be for three (3) years, commencing on July 1, 20152018, and ending on June 30, 20182021, provided however, that City's obligations hereunder shall be contingent upon MGS'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. 3. Use Fees MGS agrees to pay the City Use Fees for the Premises as follows: A. Hourly Use use Ffees for Sports Ffields for facilities as described in Sections 1 A and C B of this Agreement: Year 1 (use between July 1, 2015, and June 30, 2016): $7.008.75/hour for athletic fields $5.006.00/hour for softball/baseball fields Year 2 (use between July 1, 2016, and June 30, 2017): $8.00/hour for athletic fields $5.50/hour for softball/baseball fields Year 3 (use between July 1, 2017, and June 30, 2018): $8.00/hour for athletic fields $5.50/hour for softball/baseball fields B. Snack Bar Fees: One thousand dollars ($1,000.00) annually for use of the Snack Bar. C. Non-resident Fee: Single Family Equivalent park assessment per family, for children registered in the league who reside outside of Moorpark City limits. The fee shall be paid once per fiscal year per family. In the event a child, or his/her sibling(s), 967 MGSA Use Agreement Page 4 of 22 participate in two or more youth sports organizations with approved facility use agreements, the non-resident fee shall be equally divided among said youth sports organizations. MGS shall submit a registration roster, including names of non-resident participants, and street addresses and zip codes of all participants (both resident and non- resident), registered in the program within five (5) business days of the close of registration for each use periodthirty (30) days of the start of each season for the purpose of assessing, verifying and tracking non-resident fees and ensuring compliance with minimum participant and residency requirements. Rosters shall be submitted via email to the Recreation Division manager in Excel workbook format. Rosters shall be returned to MGS after review and recording of non-resident participants. Non-resident fees shall be payable within thirty (30) days of notification by City of amount due. City shall reconcile calculate non-resident fees due no later than May 30 of each year paid thirty (30) calendar days prior to the end of each fiscal year. MGS shall be notified in writing of non-resident fees due no later than June 1. Non-resident fees must be paid in full no later than June 25. In the event MGS paid to City more than one non-resident fee per family for the fiscal year, City shall refund to MGS any overpayment of the non-resident fee. In the event two (2) or more organizations paid non-resident fees to City for the same family, the overpayment of fees shall be divided equally among those organizations and refunded. D. Staff Fees: Staff fees as described in the current City Council Staff Billing Rates Resolution, as may be amended from time to time, for the following: 1. Monitoring of and maintenance during tournaments. Staff fees shall be paid for the duration of the tournament. 2. Monitoring of and maintenance during game days when four (4) or more fields (athletic and/or ball fields) are rented concurrently. At City’s sole discretion, this fee may be waived when MGS provides its own personnel to adequately provide custodial services for the Premises. In the event this fee is waived and MGS personnel do not adequately clean and maintain Premises, MGS agrees to pay staff fees for City staff time spent cleaning and maintaining the Premises, rounded up to the hour. Staff Fees: Staff fees as described in the current City Council Park Rental Fees Resolution, as may be amended from time to time, for monitoring of and maintenance during tournaments. Staff fees shall be paid for the duration of the tournament. C. Fees shall be charged and payable as defined in the Park Rental Fees Resolution for all other uses, including use of field lights. Fees for use under the Agreementof the Premises must be paid in accordance with the 968 MGSA Use Agreement Page 5 of 22 following schedule. Failure to pay fees when due will result in the denial or cancelation of the Rental pPermit for use under the Agreement: A. $100 due at time of applicationsubmission of the Reservation Request. B. 50% payment due within five (5) business days of issuance of approved Rental pPermit for seasonal use, full payment due within five (5) business days of issuance of permit for tournaments or other use. C. Balance of payment due within ten (10) business days of start of season for seasonal use. The City may adjust the Use Fees, referenced in this section on or before the beginning of the new fiscal year, commencing on July 1 and ending June 30, by giving MGS written notice by April 1. Fees other than those specifically described above shall be charged and payable as defined in the Park Rental Fees Resolution. This includes, but is not limited to, permit application fees, vendor fees, security deposits, cancellation fees, refund processing fees, and fees for use of City facilities other than Premises. 4. Refunds or Credits for Use Fees Use Fees paid may be refunded or credited under the following conditions: A. The Premises are unusable due to inclement weather (temperatures below 45°F or above 95°F, active precipitation, winds in excess of thirty (30) miles-per-hour, or heavy fog), or conditions exist (as determined by the City Manager or the City Manager’s designee) which make the Premises unusable, such as water saturated fields. MGS may also reschedule the canceled date, within the time frames and maximum use allowed by this Agreement. B. A request for cancellation for a date or dates reserved and paid for under the Agreement is received thirty (30) calendar days or more in advance of the scheduled date or dates. For requests for cancellations received between twenty-nine (29) and five (5) calendar days prior to the scheduled date, MGS may reschedule the canceled date, within the time frames and maximum use allowed by this Agreement. No refunds or credits will be issued for requests for cancellations received less than five (5) calendar days in advance, and the canceled date or dates may not be rescheduled. 5. Use The Premises shall be used for MGS’s authorized games, practices, and training sessions. The Premises shall be used as specified in this Agreement only, and shall not be used for any other purpose without the prior written consent of the City Manager or the City 969 MGSA Use Agreement Page 6 of 22 Manager’s designee. Use under this Agreement is limited to a maximum of forty-two (42) total weeks per calendar year, plus three (3) annual tournaments. Each tournament may not exceed two (2) weekends or four (4) total days. Weekends for each tournament must be consecutive, unless facilities are not available due to City use, maintenance, holidays, or other rental use. Tournament use is subject to availability of fields and may not interfere with American Youth Soccer Organization or Moorpark Musketeers Youth Football use of Premises as identified in their respective Agreements. For use of City facilities beyond the time frames described above, MGS agrees to obtain a park rental permit and pay rental fees as descried in the current Park Rental Fees Resolution. A schedule of times and days requested for reservation for games and practicesuse of Premises (Reservation Request) shall be furnished to the Parks and Recreation Director (PR Director) or the PR Director’s designee for the City’s approval at least thirty (30) calendar days prior to the start of the season or tournament.as follows: A. Fall season: On or before July 15. Fields not requested for reservation by MGS for the fall season by this date will be available to the public and MGS will not have priority use of them. B. Spring season: On or before January 15. Fields not requested for reservation by MGS for the spring season by this date will be available to the public and MGS will not have priority use of them. C. Tournaments: At least sixty (60) calendar days prior to the first day of tournament play. D. All other use: At least thirty (30) calendar days prior to the start of the use period. The schedule Reservation Request must be provided on the “Park Facility Reservation Application Youth Sports Organizations” form for seasonal use, and on the “Tournament Reservation Application” form for tournaments. A separate Reservation Request must be submitted for each use period (including fall season, spring season, all-stars, tournaments, training clinics, camps, and other use periods.) Reservation Requests not submitted by the above stated deadlines, or without the completed forms as referenced above, will not qualify for use under the Agreement. Reservation Requests submitted after the above stated deadlines will forfeit priority use over other renters, will not be eligible for the reduced hourly field Use Fees as described in 3.A. of this Agreement, and will be processed and fees charged in accordance with the Park Rental Rules and Park Rental Fees Resolutions. Schedules submitted less than thirty (30) calendar days in advance, or without the completed forms as referenced above, will not qualify for use under the Agreement. Reservation requests submitted less than thirty (30) days in advance will be processed and 970 MGSA Use Agreement Page 7 of 22 fees charged in accordance with the Park Rental Rules and Park Rental Fees Resolutions. The City shall provide MGS with an approved Rental Permit based on the Reservation Request detailing the dates and times MGS is authorized to use Premises. Changes to the schedule Requested changes to the approved Rental Permit must be submitted to City in writing. All requested changes must be approved by City. The approved Rental Permit may contain additional conditions or special requirements. These include but are not limited to the requirement of portable toilets and trash and recycle dumpsters for tournaments, permission for overnight security for tournaments, and vendor requirements. MGS shall abide by all conditions and requirements on the approved Rental Permit. At all times, City retains the right to use Premises for City sponsored and co-sponsored events upon no less than thirty (30) days written notice to MGS. The general public shall have access to and use of Premises at times not included in the approved Rental Permit. MGS shall not have priority use of Premises outside of the approved Rental Permit. 6. General Conditions A. In order to retain rights under this agreement, MGS shall maintain status as a 501 (c) (3) nonprofit corporation chartered within the City of Moorpark. MGS agrees to provide City with proof of nonprofit status and a certified accounting of its financial status each year. The annual financial accounting shall include: 1) a budget summary of actual revenue and expenditures from MGS’s prior fiscal year; 2) a budget summary of estimated revenue and expenditures for MGS’s current fiscal year; and 3) a bank statement or account summary to verify information provided in budgets. The financial accounting and proof on nonprofit status shall be submitted with the “Youth Sports Organization Information Sheet” on or before January 15 of each year. B. In order to retain rights under this Agreement, MGS must register and maintain a minimum of seventy-five (75) players. Additionally, a minimum of eighty seventy-five percent (8075%) of participants must reside within Moorpark City limits. MGS shall provide City with a registration rosters as described in 3.C. of this Agreement., including street addresses and zip codes, of participants registered in the program for the purpose of verifying minimum player and residency requirements. Rosters shall be returned to MGS after review by City. In lieu of a printed roster, MGS may provide City staff with access to their registration data base. Rosters and/or data base access shall be provided to City within five (5) business days of the close of registration for each season, and with the submission of the “Youth Sports Organization Information Sheet.” C. MGS shall submit annually to the City a completed “Youth Sports Organization 971 MGSA Use Agreement Page 8 of 22 Information Sheet,” the form of which shall be as provided by the City. The information sheet for each calendar year shall be submitted no later than January 15. D. MGS shall submit to City a Certificate of Authorized Signatories, with names and signatures of those authorized to sign documents on behalf of MGS. A new form shall be submitted any time the list of authorized signatories changes. E. MGS agrees to obtain a rRental Ppermit and pay rental fees as required by section 12.16.160 of the Moorpark Municipal Code (MMC) for all use of City facilities not included in the “Premises” and “Use” sections of this Agreement. MGS further agrees to notify all coaches and participants of the City’s rules and regulations governing City park rentals, and shall prohibit any coach or participant from interfering with a permitted park rental. 7. Wet Field Policy MGS agrees to abide by the terms of the Wet Field Policy as described in the Rules and Regulations Governing City Park Rentals Resolution, as may be amended from time to time, to preserve the quality and life of the fields and promote a safe playing environment. The Wet Field Policy applies to conditions due to precipitation, over-watering, and/or irrigation system problems or other circumstances that may result in wet fields. When fields are sufficiently wet such that their use may lead to turf damage or bodily injury, they will be closed to all use at the City Manager’s or the City Manager’s designee’s sole discretion. Fields are closed under the following conditions: A. Rain (with the exception of light drizzle if the ground is relatively hard and dry prior to the start of the drizzle.) B. Standing water/ponding or mud is present. C. Water gathers around the sole of a shoe. D. Footprints leave an impression in the turf. D.E. Other conditions deemed unsuitable for recreational activities as determined by the City Manager or the City Manager’s designee. 8. Snack Bar and Storage Rooms A. The sale and consumption of food and beverages shall be at the discretion of MGS with the exception that no alcoholic beverages shall be sold or consumed on Premises. B. MGS shall be provided with no more than four (4) keys to the Snack Bar and storage rooms prior to the start of the season and shall be responsible for securing said keys. Said keys shall not be duplicated. Upon vacating the Snack Bar or storage rooms, MGS shall return the keys to City within fifteen (15) days of vacating use at the end of the season or when Agreement is terminated. In the event any key(s) assigned to MGS are lost or stolen, MGS agrees to reimburse City for all 972 MGSA Use Agreement Page 9 of 22 costs, including a fifteen percent (15%) administrative fee, associated with re-keying facilities and issuing replacement keys. C. MGS shall obtain all required health and other permits for the operation of the Snack Bars and preparation and sale of food and beverages. MGS shall notify City in writing of any notice of correction or closure received from the Ventura County Environmental Health division within forty-eight (48) hours of receiving such notice and when corrections are made. D. MGS agrees to clean Snack Bars including counters, sinks, floors, and walls after each use, and to remove and dispose of all trash and recycling in and around Snack Bars to trash and recycle bins provided by City. The Snack Bar shall be cleaned and sanitized thoroughly at the end of each day that the facility is used, to the satisfaction of the City. Any required repair to equipment, appliances, fixtures or any damage to the facility or any graffiti observed shall be immediately reported to the City. MGS shall supply all cleaners and supplies. All cleaning products used must be approved by City. Daily cleaning includes the interior and exterior of the Snack Bar facility, including, but not limited to the following: 1. Pick up and disposal of litter in and around facility within a 100’ radius. 2. Empty trash receptacles within a 100’ radius and replace liner(s) with 1.5 mill, provided by MGS, or better. 3. Sweep and wet mop the entire floor surface using an approved detergent disinfectant. Dry the floor with a dry mop. 4. Clean walls and ceiling with an approved disinfectant detergent, including tile and grout. 5. Clean sinks and counter tops with an approved disinfectant detergent. 6. Clean and sanitize the interior and exterior of all surfaces and appliances, including stoves, microwaves, coffee makers and refrigerators. 7. Clean the interior and exterior of all partition windows. E. MGS agrees to immediately (within 24 hours) report to City any damage or vandalism to the Snack Bar or storage rooms. F. MGS shall not begin storage of its property in the Snack Bar until the first day of each season. MGS agrees to remove its property from the Snack Bar within one (1) week after the last game of each season. City accepts no liability for MGS property stored on Premises. G. MGS shall use the storage room to store maintenance and game equipment and food and drink supplies only. MGS may store maintenance and game equipment in the storage room year round. No more than five (5) gallons of gasoline or propane may be stored in the storage room. MGS shall clean the storage room on a regular basis, and keep it free of dirt, dust, and debris. MGS shall be required to vacate the storage room adjacent to the Snack Bar upon thirty (30) days written notice from the 973 MGSA Use Agreement Page 10 of 22 City if it is needed for City purposes. 9. Signs MGS 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 Manager or the City Manager’s designee. In the event of a violation of this provision by MGS or any one claiming under MGS, MGS hereby authorizes City as MGS's Agent, 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 MGS who agrees to pay the same upon demand. This provision does not prohibit 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. MGS further agrees to abide by the City’s Sign Ordinance regarding the placement of signs at any location other than Premises. 10. Vendors Vendors are not permitted without the prior written authorization of the City Manager or the City Manager’s designee. Vendors are subject to the following conditions: A. Vendors must complete the City’s vendor application form. B. Vendors must be self-contained. C. Vendors must abide by all local, state, and federal laws, including but not limited to, environmental health regulations and the American with Disabilities Act (ADA). Vendors must have a current Moorpark business registration permit as required by MMC 5.08 (Business Registration Permit). D. Vendors may not sell tobacco, alcohol, or any other product or item not approved by the City. MGS must pay to the City vendor fees as described in the current Park Rental Fees resolution. a fee of twenty-five dollars ($25.00) per vendor per day. 11. Indemnification and Hold Harmless MGS hereby agrees to hold harmless and indemnify City, its officials, agents, and employees, and its successors and assigns, from and against all claims, loss, damage, actions, causes of actions, expense (including costs of fees and expenses for legal services) and/or liability arising or growing out of loss or damage or destruction 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 974 MGSA Use Agreement Page 11 of 22 this Agreement or the use of City facilities by MGS or any person claiming use under or through MGS unless such loss, damage, injury, or death is due to the sole negligence of the City. MGS 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 City facilities under this Agreement and shall further save and hold harmless the City from any and all orders, judgments, and decrees which may be entered in any and all such suit or actions. MGS and all others using said facilities under this Agreement hereby waive any and all claims against the City of damage to persons or property in, or about City facilities. The City does not, and shall not, waive any rights that it may have against MGS 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 shall survive the expiration or termination of this Agreement. The provisions of this Section shall apply to all use of City facilities by MGS pursuant to this Agreement. Failure of City to monitor compliance with requirement set forth in this Agreement imposes no additional obligations on City and will in no way act as a waiver of any rights hereunder. 12. Liability Insurance MGS shall maintain prior to the beginning of and for the duration of this Agreement insurance coverage as specified in Attachment “B” attached hereto and incorporated herein by this reference as though set forth in full. Coverage shall apply to all use of City facilities by MGS pursuant to this Agreement. 13. Routine Maintenance and Operations Except as specifically provided for in the Agreement, all maintenance of 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 Manager or the City Manager’s designee in writing. All maintenance authorized to be performed by MGS shall adhere to City specifications and standards. City agrees to allow MGS to access the field portion of Premises with no more than two (2) vehicles for the specific purpose of field preparation, maintenance, and setting up and taking down equipment. MGS agrees not to use vehicles on the field whenever the ground is wet, for whatever reason, without obtaining City’s written approval. MGS also agrees that vehicles it uses for this purpose shall not exceed a gross vehicle weight (GVW) of 5,400 pounds. MGS further agrees that only licensed drivers age sixteen (16) or older may drive said vehicles. MGS agrees to immediately report to City any damage to Premises caused by use of vehicles on Premises. MGS further agrees to repair any such damage at MGS’s sole cost and expense to the satisfaction of the City. 975 MGSA Use Agreement Page 12 of 22 A. During use under this Agreement, MGS shall be responsible to perform the following maintenance on Premises at MGS’s sole cost and expense: 1. At least sixty (60) days Pprior to the first game of the season and thirty (30) days prior to the start of any maintenance activities, a representative from MGS shall meet with the City Manager or the City Manager’s designee to review the condition of the infield areas. MGS shall grade the infield areas of all ball fields 1 and 3 at AVCP, in order to level the fields and insure positive drainage, two percent (2%) cross fall maximum. Infield mix shall be added to the satisfaction of the City Manager or the City Manager’s designee and shall consist of sixty percent (60%) ‘decomposed granite’ and forty percent (40%) ‘brick dust’ available from Peach Hill Soils or equal. The brick dust and decomposed granite shall be mixed evenly by the manufacturer prior to installation. MGS shall provide the City with the quantity of the infield mix proposed and product specifications prior to the start of work. MGS shall hire a contractor with proven grading experience and submit to the City the contractor’s qualifications. MGS shall obtain the City’s written approval prior to commencing work. 2. Pick up trash and recycle materials on and within 100’ around Premises and provide for additional trash containers as needed. Trash and recycling containers shall be emptied when they are no more than seventy-five percent (75%) full, with trash and recycle materials placed in the appropriate trash or recycle container bin. Additionally, recycle material shall be removed from the liner and placed in the appropriate recycling bin. All recycle and trash receptacles shall be installed with trash liners. Liners shall be supplied by MGS. Trash liners shall be black in color and 1.5 mill or better, and recycle liners shall be clear, unless otherwise approved by the City. This requirement shall be waived during times that MGS has paid for and the City has scheduled staff to perform custodial duties specifically for MGS’s use of Premises. 3. Groom, drag, and rake infields. MGS agrees to hand rake the infields within eighteen (18) inches of the infield grass line to prevent the build-up of a lip. MGS shall replace infield fill when necessary using an infield mix to be specified and approved by City. Only an approved white water-based acrylic paint, manufactured specifically for marking lines on sports turf and athletic fields, may be used on the turf. Athletic field paint may not contain calcium carbonate, vinyl copolymers, herbicides, or pesticides. Only white field chalk, manufactured specifically for marking lines on ballfields, may be used on the dirt portions of the infield. Chalk may not contain any lime-based products, or other chemicals known to cause skin and eye irritation. 4. Maintain base pegs, pitcher’s mounds, pitching rubbers, and home plates on AVCP ball fields #1 and #3. 5. Maintain backstops, bleachers, and dug-outs, including fence material, and 976 MGSA Use Agreement Page 13 of 22 shade screenson AVCP ball fields #1 and #3.. Screens must be removed or repaired within seventy-two (72) hours of notification that repair or removal is needed. Fencing must be repaired within seventy-two (72) hours of notification that repair is needed. 5.6. Maintain all MGS installed shade screens on dug-outs. Screens must be removed or repaired within seventy-two (72) hours of notification that repair or removal is needed. 6.7. Remove graffiti from fences, backstops, and dugouts (including all dugout coversshade screens) within seventy-two (72) hours of notification to do so. All cleaning products used must be approved by City. If MGS fails to remove graffiti as described in this section, MGS authorizes City to remove graffiti and to charge the cost and expense of such removal to MGS, who agrees to pay the same upon demand. 7. On ballfield #3 at AVCP, maintain infield irrigation, benches, and bleachers. B. City shall be responsible to perform the following: 1. Irrigate, mow, fertilize, and aerate at City’s expense turf areas within Premises. 2. Perform routine maintenance for normal wear and tear, and arrange for and schedule pest control services for, in, and around the Snack Bar. 3. Remove graffiti from fences, backstops, bleachers, and dug-outs. 4. Repair damage to fences, backstops, bleachers, and dug-outs when such damage is due to vandalism. C. City and MGS shall jointly: 1. Maintain base pegs, pitcher’s mounds, pitching rubbers, and home plates on AVCP ball fields #2 and #4. 2. Maintain backstops and dug-outs, including fence material, on AVCP ball fields #2 and #4. D. Other than as described in this Agreement, 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. City shall determine maintenance specifications. E. City agrees to allow MGS to access the field portion of Premises with no more than 977 MGSA Use Agreement Page 14 of 22 two (2) vehicles for the specific purpose of setting up and taking down equipment and preparing ball fields only. Vehicles shall not exceed a gross vehicle weight (GVW) of 5,400 pounds and may only include golf carts, utility vehicles (“Gators”), or all-terrain vehicles (ATVs). Vehicles must be equipped with turf tires. MGS agrees not to use vehicles on the field whenever the ground is wet, for whatever reason, without obtaining the City Manager’s or the City Manager’s designee’s written approval. MGS further agrees that only licensed drivers age eighteen (18) or older may drive said vehicles. MGS agrees to immediately report to City any damage to Premises caused by use of vehicles on Premises. MGS further agrees to repair any damage caused by MGS’s use of vehicles at MGS’s sole cost and expense to the satisfaction of the City. Except as described above, use of any other vehicle on any area other than roadways and parking lots requires the advance written approval of City. F. City agrees to allow MGS to place up to four (4) portable lights on Premises for evening lighting during tournaments only. Lights may be turned on up to thirty (30) minutes prior to sunset and must be turned off no later than 10:00 p.m. Use of portable lights must be included on the Reservation Request and approved by City. City must approve the placement of lights on Premises. No less than five (5) calendar days prior to the use of portable lights, MGS must submit to City a diagram of light placement for approval. Portable lights may only be placed on fields during the time said fields are rented by MGS. Portable lights must be removed from the fields at the end of each day and stored and secured no later than 10:00 p.m. in a location and manner prescribed by City. 14. Improvements MGS shall not make any alterations, additions, or improvements upon the Premises without the prior written consent of the City Manager or the City Manager’s designee. Requests to make alterations, additions, or improvements must be submitted to the City in writing no less than fifteen (15) business days prior to the desired start date for work. All City authorized alterations, additions, and improvements shall be done in a good and workmanlike manner and diligently prosecuted to completion, and shall be performed and maintained at MGS’s sole cost and expense in strict accord with all federal, state, county, and local laws, ordinances, codes, and standards relating thereto, including ADA requirements. 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 Manager or the City Manager’s designee, any alterations, additions, and improvements shall remain on and be surrendered with the Premises upon the expiration or termination of this Agreement. MGS shall timely pay all costs associated with any and all improvements, and shall keep the Premises free and clear of all mechanics liens. MGS agrees to and shall indemnify, defend, and save City free and harmless against all liability, loss, damage, costs, attorney fees and other 978 MGSA Use Agreement Page 15 of 22 expenses of any nature resulting from any MGS alterations, additions, or improvements to the Premises. If MGS discontinues use of Premises for a period of eighteen (18) consecutive months, all improvements to Premises not already owned by City shall become the property of the City unless otherwise authorized by the City Manager or the City Manager’s designee in writing. 15. Amplified Sound MGS agrees not to use amplified sound without the prior written authorization of the City Manager or the City Manager’s designee. MGS agrees to abide by the provisions regulating amplified sound as set forth in sections 12.16 (Parks and Open Space), and 17.53 (Noise), of the MMC. 16. Flammable Material, Waste, and Nuisances MGS agrees that it will not place or store any flammable materials on the Premises except as described in Section 8 G, that it will not commit any waste or damage, nor suffer any to be done. MGS also specifically agrees that it will not allow others to take such actions on the Premises. MGS further agrees that it will keep the Premises clean, free from weeds, rubbish, and debris and in a condition satisfactory to City. MGS shall also provide adequate controls for dust, odors, and noise which may emanate from the Premises or from MGS'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. MGS 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 disturbances. MGS also agrees that it shall not use amplified sound or field lighting on Premises for any reason, without the prior written consent of the City Manager or the City Manager’s designee. 17. Pesticides and Herbicides MGS 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. MGS 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. 18. Hazardous Materials Indemnity MGS 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, 979 MGSA Use Agreement Page 16 of 22 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 MGS; 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 MGS. 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. 19. 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. 20. Governing Law MGS agrees that in the exercise of its rights under this Agreement, MGS shall comply with all applicable federal, state, county, and local laws and regulations in connection with its use of the Premises, including but not limited to the ADA. 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. 21. Discrimination MGS agrees not to discriminate against any person or class of persons by reason of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of such person; or any other basis protected by applicable federal, state, or local lawrace, ancestry, physical disability, medical condition, marital status, gender, color, religious creed, or national origin in the use of the Premises. 22. Assignment and Subletting MGS 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 MGS excepted) to occupy or use the Premises, or 980 MGSA Use Agreement Page 17 of 22 any portion thereof, without the prior written consent of the City Manager or the City Manager’s designee. A consent to one assignment, subletting, occupation, or use by another person shall not be deemed to be a 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 MGS, by operation of law, without the written consent of the City Manager or the City Manager’s designee. 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 MGS by this Agreement. 23. Insolvency or Bankruptcy If MGS 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 MGS 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 MGS thereupon shall cease and terminate. 24. 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 thirty (30) days following such notice, then this Agreement shall continue in full force and effect. If such default or breach is not remedied within thirty (30) days following such notice or if the nature of the default is such that it cannot reasonably be cured within thirty (30) days, if MGS fails to commence to cure within the thirty (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. 25. 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. 26. 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 981 MGSA Use Agreement Page 18 of 22 deemed a waiver of any subsequent or other default or breach. 27. 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. 28. 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, MGS shall have the right to either terminate this Agreement or to continue in possession of the remainder of the Premises. If MGS 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. 29. Remedies In case of the failure or refusal of MGS 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 MGS's personal property from the Premises at the sole cost, expense and risk of MGS, which cost and expense MGS agrees to pay to City upon demand, together with interest thereon at the maximum rate allowed by law, and use fees due to date from the date of expenditure by City. 30. Attorney Fees In case City shall bring suit to compel performance of or to recover for breach of any covenant, agreement, or condition herein contained and such suit results in a judgment for City, MGS will pay to City attorney fees in addition to the amount of judgment. 31. 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: All payments and notices to MGS shall be given or mailed to MGS at the address listed below and addressed to the current MGS Regional Commissioner. It is the responsibility of MGS to notify City when there has been a change with regard to the individual serving as Regional Commissioner and to provide the City with name, address, and 24-hour contact phone number of the new Commissioner. Moorpark Girls Softball 982 MGSA Use Agreement Page 19 of 22 Scott ZulagerChristina Finnerty P.O. Box 246 Moorpark, CA 93020 All payments and notices to City shall be given or mailed to: City of Moorpark City Manager 799 Moorpark Avenue Moorpark, CA 93021 32. 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. 33. 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. 34. 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. 35. 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. 36. Venue This Agreement is made, entered into, executed in Ventura County, California, and any action filed in any court for arbitration for the interpretation, enforcement or other action of the terms, conditions or covenants referred to herein shall be filed in the applicable court in Ventura County, California. 37. Entire Agreement This Agreement constitutes the entire agreement between the parties, and supersedes all previous negotiations and understandings between the parties. There are no 983 MGSA Use Agreement Page 20 of 22 representations, warranties, or commitments, oral or written, other than those expressly set forth herein. 38. Authority to Execute Agreement The person executing this Agreement on behalf of MGS warrants and represents that he/she has the authority to execute this Agreement on MGS’s behalf and has the authority to bind MGS to the terms of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first written above. CITY OF MOORPARK MOORPARK GIRLS SOFTBALL _______________________________ _______________________________ Steven KuenyTroyBrown Christina Finnerty City Manager Co-President Attest: _________________________________ Maureen Benson City Clerk Attachments: A: Premises B: Insurance Requirements 984 MGSA Use Agreement Page 21 of 22 Attachment A Premises Arroyo Vista Community Park Softball Fields 1, 2, 3, and 4 Snack Bar adjacent to softball fields Arroyo Vista Community Park Softball fields 1, 2, 3, and 4 Snack Bar and Storage Room adjacent to softball fields Mountain Meadows Park Softball fields 1 and 2 985 Attachment B Insurance Requirements MGS shall secure, pay for, and maintain in full force and effect for the duration of this Agreement a policy of comprehensive insurance as detailed below from a good and responsible company or companies authorized to do insurance business in the State of California,with a Best Rating/ FPR of no less than A- Policies shall bear an endorsement or shall have attached a rider whereby it is provided that, in the event of amendment or cancellation of such policy for any reason whatsoever, City shall be notified by registered mail, postage prepaid, return receipt requested, not less than thirty (30) days before the amendment or cancellation is effective MGS shall furnish a Certificate of Liability Insurance and Insurance Endorsement, subject to the City's acceptance, to the City within thirty (30) days ofprior to execution of this Agreement MGS agrees to have its insurer endorse, to the satisfaction of the City, the third party general liability coverage required herein to include as additional insureds the City of Moorpark and its officials, employees, and agents 1 GENERAL LIABILITY INSURANCE Notwithstanding any inconsistent statement in the policy or any subsequent endorsement attached thereto, the protection offered by the policy shall A Include City of Moorpark as additional insured, whether liability is attributable to MGS or City B Provide a minimum of $1 ,000,000 per occurrence with a minimum of $2,000,000 aggregate commercial general liability coverage, and shall be written on an occurrence back C MGS's policy shall be considered primary insurance with respect to any other valid and collectible insurance the City may possess, including any self-insured retention the City may have, and any other insurance the City does possess shall be considered excess and shall not contribute to it 2 AUTO INSURANCE Business Auto Coverage, on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto), or the exact equivalent Limits are subject to review, but in no event to be less than $1 ,000,000 00 per accident If MGS owns no vehicles, this requirement may be satisfied by a non- owned auto endorsement to the general liability policy described above If MGS or MGS's employees, participants, associates, or volunteers will use personal autos in any way during the performance of this Agreement, MGS shall provide evidence of personal auto liability for each such person 3 WORKERS' COMPENSATION INSURANCE Workers' Compensation Insurance, on a state-approved policy form providing statutory benefits as required by law MGS shall furnish a Certificate of Insurance to the City within thirty (30) days of execution of this agreement by City 4 SEXUAL ABUSE Sexual Abuse insurance, with limits of no less than $1,000,000 00, and written on an occurrence basis MGSA Use Agreement Page 22 of 22 986