LICENSE AGREEMENT
This License Agreement (“Agreement”) is entered into as of this 18th day of October, 2022, by and between the City Marysville, a municipal corporation (“City”) and Pecos League of Professional Baseball Clubs LLC (“Pecos” and/or “Licensee”).
RECITALS
A. The City operates a baseball field, dugouts, bleachers, and parking lot at 1431 C Street, known as Bryant Field (“Facilities”).
B. The Facilities are for the use and benefit of the public; however, the City, through its Community Development Department (“Department”), has determined that there are certain days and hours which may be made available for organizations to rent the Facilities for designated uses.
C. Pecos requests designated use of the Facilities for a professional baseball team to be named the Marysville Drakes with the Pecos League of Professional Baseball Clubs LLC for baseball trainings and league games (“Program”).
D. The City desires to make the Facilities available to Pecos on a license basis for the purpose of providing the Program.
Now, therefore, the parties agree as follows:
Section 1. LICENSE
(A) City grants to Licensee on the terms and conditions set forth in this Agreement, a license for the use of the Baseball Park for those dates specified in Exhibit C attached hereto. Licensee shall conduct all activities at the Baseball Park in compliance with all laws. ”
(B) Exhibit C will be updated annually through the City’s permit process; the City does not guarantee any specific days beyond the current Exhibit C. (C) The Department and Licensee may modify the dates and time of the Facilities use when agreed to in writing by both parties.
(D) The Licensee understands and agrees that the Facilities may be scheduled for other uses on days and times when not scheduled by the Department for the Licensee under this Agreement.
(E) The Licensee personally guarantees the agreement in Exhibit D. (F) The Licensee may request the use of other facilities and times not covered by this Agreement through the normal rental permit process of the City. All rental fees and charges shall be paid prior to use of Facilities.
(G) In the event that the City is required to close any part of the Facilities due to equipment failure, budget crisis, or physical deterioration of any kind, the City shall give written notice of the closure to Licensee and any right of Licensee to use the Facilities shall be suspended during the time of closure. (H) Licensee shall use the Facilities for the purpose of the Program and for no other purpose without the prior written consent of the Community Development Director (“CD Director”) or the Director’s designee.
(I) Use of the Facilities by the Licensee includes use of existing furniture and fixtures. (J) During use of Facilities by the Licensee for the Program, the consumption or sale of food and beverages must have prior approval from the Department. (K) The Licensee is responsible for following all City, county, and state regulations regarding the sale and/or consumption of alcoholic beverages including a valid license from issuing agency allowing for the sales and/or consumption of alcoholic beverages, and the proper vetting of individuals allowed by law to participate in such sales and/or consumption. The Licensee also agrees to provide appropriate event security when sales and/or consumption of alcoholic beverages exists. (L) The Licensee shall exercise reasonable precautions for the safety of persons participating in, or attending, Programs at the Facilities. The Licensee shall immediately report to the City any dangerous conditions. The Licensee acknowledges that the use of the Facilities during the hours scheduled for the Licensee shall be its sole responsibility and that it will use the Facilities in a safe and reasonable manner.
(M) Licensee shall be responsible for all aspects of operations of its professional baseball organization, including forming, training, and putting the team on the field for league play during the league season. The Licensee shall obtain such licenses and approvals as required by the league for the team to enter and continue to be a team playing within the league. The Licensee shall operate the team, and be responsible for all aspects of operations, meeting the applicable standards of a professional baseball team.
(N) The Licensee and its members, staff, volunteers, and employees shall enforce and obey all posted Facilities safety rules and other rules that pertain to the use of the Facilities.
(O) The Licensee will immediately report any Facilities issues, incidents, and/or accidents to the Community Development Department.
(P) The Licensee shall be solely responsible for the orderly conduct of all persons using the Facilities and Program by its invitation, either expressed or implied. The City reserves the right to eject from the Facilities any person engaging in unlawful conduct.
(Q) The Licensee shall be able to request approval to install advertising on the public baseball field in compliance with the City’s rules or ordinances. The creative content must be approved by City personnel prior to production. Advertisements shall only be displayed on the field’s outfield fence and shall only face the field’s interior. Advertising copy and/or logos shall be limited to one side and shall be made of durable cloth, bunting, plastic, or similar approved material. Individual advertisements shall not exceed 32 square feet. The advertisement’s surface must be tautly and securely fastened to the outfield fence of the field by a minimum of four contact points. The Licensee shall maintain all advertisement materials in good condition, and the Licensee shall remove or replace any damaged, torn, faded, dirty or defaced advertisements. This includes graffiti and tagging. Advertisements shall be installed no sooner than seven days prior to the baseball season’s commencement and shall be removed within seven days of the season’s close.
Specific dates and time for the advertisements’ installation and removal may be subject to change by the City to minimize impacts to the public. All advertisements that are not removed by the applicant by the approved removal date shall constitute a public nuisance subject to summary removal by the City. The City may bill user groups for removal.
(R) The Licensee shall not publicize, or cause to be publicized, this Agreement prior to the execution of this Agreement by the City and the Licensee. (S) Duly authorized representatives of the City shall have the right to enter the Facilities and all parts thereof at any time.
(T) The City shall have the right, but not the obligation to collect and have custody of articles left in or around the Facility by participants of the Licensee’s Program.
This section does not affect Licensee’s maintenance obligations as set forth in this Agreement.
(U) The Licensee shall not do, nor permit to be done, anything which may interfere with the effectiveness or accessibility of the Facilities, nor do, nor permit to be done, anything which may interfere with free access to the public areas, streets, or sidewalks adjacent to the Facilities.
(V) The City retains the right to photograph the Program for its own purposes. (W) In the receipt, handling, care, custody, and storage of property of any kind shipped or otherwise delivered to the Facilities prior to, during or subsequent to the use of the Facilities by the Licensee, the City and its employees shall act solely for the accommodation of the Licensee, and the City shall not be liable for any loss or damage to the property.
(X) The Licensee agrees that the portion of the Facilities assigned to the Licensee is not leased to the Licensee, that it is a Licensee and not a Lessee, and that its right to occupy the Facilities shall continue only so long as it strictly and promptly complies with each and all undertakings, provisions, covenants, agreements, stipulations, and conditions contained herein.
(Y) This license may create a possessory interest subject to property taxation. The Licensee shall be subject to payment of property taxes levied on the possessory interest by the County of Yuba. State law requires a public entity renting or leasing its property to a private party to notify the private party about the potential tax. (Z) This Agreement shall have no force or effect whatsoever unless and until it has been executed by the Licensee and the authorized representative on behalf of the City of Marysville. By its execution, the Licensee covenants and agrees that it will faithfully perform and abide by each, and every term, condition, and limitation of the license granted herein, each of which shall be a condition subsequent to continuance in effect of the license.
(AA) The recitals set forth above are contractual in nature and are incorporated into this Agreement.
(BB) Licensee shall provide the City with insurance as specified on Exhibit A attached hereto.
Section 2. Capital Improvements, Maintenance, Repairs and Operations (A) Set-up and Clean-up for Club Home Games. Licensee shall have the exclusive right and obligation to manage and operate the Baseball Park during the Baseball Season and shall, at its sole expense, clean the Baseball Park and all improvements therein and keep it in orderly condition before and after each Home Game, including (i) providing personnel and supplies for cleanup of field, seating, concession stands, grounds, press box and restrooms; and (ii) removing and properly disposing of, refuse, rubbish, trash, garbage and recyclables.
(B) Licensee is Responsible for all Aspects of Maintenance and Repair. During the term of the 2023 Baseball Season under this Agreement (namely from the time Licensee takes possession of the Baseball Park in May 15 of 2023 through the time Licensee gives notice to the City in August of 2023 that it no longer requires possession of the Baseball Park) in addition to its obligations under paragraph 2 (Setup and Cleanup for Club Home Games), Licensee is responsible at its sole expense to fully and completely maintain the Baseball Park and all City-owned facilities therein, These maintenance obligations are ongoing. Licensee shall be responsible for all aspects of maintenance and repairs including regular maintenance include by way of example, mowing, fertilizing, seeding, re-seeding, watering and otherwise maintaining the playing field in accordance with applicable league standards; clean-up of seating and concession areas within the Baseball Park and maintenance of seats, public lavatories and restroom facilities; regular and routine maintenance of the HVAC, plumbing, electrical, water, sewage and onsite drainage systems; replacement of all lights, light bulbs and fixtures (excluding lights which illuminate the stadium and Bryant Field as such lights burn out or are in need of replacement); to keep and maintain the scoreboard and AV systems in good working order in accordance with common practice as well as any applicable league standards.
As described above, Licensee is further responsible to maintain the facilities which are the subject of this Agreement in a fully operational condition such that the structures and facilities at the Baseball Park and all City-owned capital facilities therein shall be in at least as good or better condition at the end of this Agreement than the condition of such facilities on the effective date of this Agreement. Licensee's obligations of maintenance, replacement and repair shall not take into consideration "reasonable wear and tear". To the contrary, Licensee's obligations require Licensee to maintain and repair the Baseball Park and all City-owned capital facilities at all times so as to negate the effects of "ordinary wear and tear" including damage/vandalism by attendees of Licensee’s events.
The City is responsible for capital improvements, including capital replacement and repairs of the structure, structural members, foundations, footings, roof, balconies, floors, columns, steps, ramps, doors, windows, walls, fixed stadium seats and seating areas, fixed concession areas, water and plumbing systems, electrical systems and electrical lights (including light standards and field lighting/ballasts), pipes and mains, sidewalks, fencing, parking surfaces, the scoreboard and all integral components of the foregoing and all fences and fencing.
Section 3. TERM; TERMINATION
(A) The license granted by this Agreement is non-exclusive and begins May 15, 2023, and terminates August 15, 2025, unless sooner terminated as provided herein.
Exhibit B (attached) will be negotiated annually between the City and the Licensee as part of the Department’s sports field permit process with new dates and times.
The attached Exhibit B does not guarantee nor set precedents for negotiation of future dates.
(B) The license granted by this Agreement is non-exclusive and begins May 15, 2023, and terminates August 31, 2025, unless sooner terminated as provided herein.
Exhibit B (attached) will be negotiated annually between the City and the Licensee as part of the Department’s sports field permit process with new dates and times.
The attached Exhibit B does not guarantee nor set precedents for negotiation of future dates.
(C) The City may terminate this Agreement by written notice of not less than sixty (60) days. The Licensee must provide notice of termination during the month of August prior to each subsequent season. The Licensee is responsible for all payments which are due at the time oftermination.
(D) In the event of default on the part of the Licensee in any of the terms of this Agreement, which default continues for a period of not less than ten (10) days after written notice from the City to the Licensee, the City may terminate further use of the Facilities under this Agreement and may reject any person who enters by reason of the permission granted in this Agreement. Any termination of the Agreement pursuant to this paragraph is supplemental to and in addition to any other rights or remedies of the City. In addition, notwithstanding such termination, those provisions of this Agreement which by their nature survive this Agreement shall continue, to include Licensee's obligations of indemnity and insurance, among others. In the event of breach the City has available to it all rights and remedies at law or equity.
(E) The City shall have the right to terminate all or part of this Agreement at any time when the Facilities are required for public necessity or emergency use or at any time when the City determines that termination is necessary to preserve the public peace, prevent damage to public property, or prevent riots, mobs, or violence. Upon such termination, neither the City, nor it officers, agents or employees shall be liable to the Licensee for any expenses or damages whatsoever related to the termination. In no event shall the City, its officers, agents, or employees, be liable to the Licensee for lost revenue or consequential damages. (F) At the expiration of the Licensee’s date and time of use of the Facilities, or upon the sooner termination of this Agreement, the Licensee shall vacate the Facilities, remove all property brought to the Facilities by, or on behalf of, the Licensee. (G) The Licensee agrees to pay the cost of repair or replacement for all damages to the Facilities property of whatever origin or nature resulting from the negligence or intentional misconduct of the Licensee, its officers, employees, agents, invitees or members, and the cost to maintain and store any of the Licensee's property not removed from the Facilities at the termination of this Agreement. (H) If the Facilities or any part thereof is destroyed or damaged by fire or any other cause, or if any unforeseen casualty, including strikes, labor disputes, war or acts of military authorities, shall render the performance of this Agreement difficult or impossible, this Agreement shall be automatically terminated. The City shall not be held liable to the Licensee for any damage caused by such termination and the City shall be relieved from further liability by reason of this Agreement and no claims for compensation shall be made against the City by the Licensee. Should this License terminate or expire or should the terms and conditions of this License make it impossible or difficult to perform its obligations under this Agreement, the City shall not be liable to the Licensee for any damages sustained by the Licensee, whether direct or consequential, resulting therefrom.
Section 4. INDEMNITY; INSURANCE
1. Indemnity by Licensee. Licensee shall indemnify and hold City, and its representatives officers, directors, employees and agents free and harmless from any and all claims, suits, liens, demands, damages, injuries, liabilities, losses and expenses of any kind (including reasonable attorneys' fees, expert witnesses and costs of investigation with regard to any claim, demand or action) to the extent they arise out of or are in any way connected with the performance of this Agreement by City, its agents, directors or employees or by Licensee, its agents, directors or employees whether such claims, liens, demands, losses or expenses are based upon a contract or upon a claim for personal injury, death, or property damage or upon any other legal or equitable theory whatsoever. Licensee agrees at its own expense and upon written request by City, to defend any claim, suit, action or demand brought against City on any injury, loss, or liability, actual or alleged covered herein. Notwithstanding this defense obligation, Licensee shall not be required to indemnify City from loss or liability to the extent such loss or liability arises from the sole negligence or willful misconduct of City, its agents, directors and employees, at such time that such sole negligence or willful misconduct has been finally determined by a court of competent jurisdiction. Licensee shall provide City with a defense until such determination has been made (L e., until a court of competent jurisdiction has finally determined that the loss or liability arises from the sole negligence or willful misconduct of City, Licensee shall provide a defense as to such loss or liability). Licensee's obligations of defense and indemnity arise even if the claim is frivolous or lacking in merit. The defense indemnification obligations of this Agreement are undertaken in addition to, and shall in no way be limited by, the insurance obligations contained in this Agreement. The indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable to or for Licensee or its agents under workers' compensation acts, disability benefit acts or other employment benefit acts.
The Licensee shall pay all costs that may be incurred by the City in enforcing this indemnity, including reasonable attorneys' fees. Licensee's indemnity obligations survive this Agreement.
Licensee's duties to defend is separate and independent of its duty to indemnify. The duty to defend includes claims for which the City may be liable without fault of be strictly liable. The duty to defend applies regardless of whether the issues of negligence, strict liability, fault, default or other obligation on the part of the City has been determined. The duty to defend applies immediately regardless of whether the City has paid any sums or incurred any detriment arising out of or relating (directly or indirectly) to any claims. Notwithstanding the foregoing, the City on behalf of itself reserves the right to assume the defense of any action, arbitration or proceeding against which Licensee may have an obligation to defend pursuant to this Agreement including the right to appoint counsel of its choice, without effecting Licensee's obligation to indemnify for the cost of such defense.
Licensee shall be liable to the City for any loss or damage to City property arising from or in connection with Licensee's performance hereunder.
2. Insurance Requirements:
A. Commercial General Liability. During the term of this Agreement, Licensee shall at all times maintain in full force and effect commercial general liability insurance in an amount determined as reasonably necessary from time to time by Northern California Cities Self-Insurance Fund (NCCSIF), a California joint powers agency, or City's subsequent insurance carrier. At the commencement of this Agreement, the commercial general liability insurance shall be $2,000,000 minimum combined single limit and a general aggregate limit of at least $4,000,000. The policy shall covet bodily injury, property damage, personal injury and other covered loss however occurring during the policy term. The coverage shall be primary, and any insurance maintained by City shall be excess insurance only. Such insurance shall contain endorsements: (a) deleting any employee exclusion on personal injury coverage; (b) including employees as additional insureds; (c) deleting any liquor liability exclusion; (d) providing for coverage of employer's automobile non-ownership liability.
The commercial general liability insurance policy shall provide coverage on an "occurrence" basis, including products and complete operations, property damage, bodily injury and personal and advertising injury. If a general aggregate limit applies, the general aggregate limit shall apply separately to this Agreement and the Baseball Park.
B. Automobile Liability. Licensee shall, during the term of this Agreement maintain coverage for automobile liability using ISO Form CA 00 01 covering any auto (Code 1), hired (Code 8) and non-owned automobiles (Code 9), with limits of no less than $1,000,000 per accident for bodily injury and property damage.
C. Property Insurance. During the term of this Agreement Licensee shall at all times during the Baseball Season maintain in full force and effect property insurance, special extended coverage or all-risk coverage insurance (including, but not limited to coverage for vandalism and malicious mischief) in the amount of 100% of the full replacement value of all improvements at the Baseball Park. Such policy shall contain a replacement cost endorsement and a stipulated amount endorsement. Licensee may maintain the required coverage by means of coverage obtained by City through City's insurance carrier, which may change from time to time, for which Licensee shall reimburse City for coverage required during the Baseball Season.
D. Workers' Compensation. During the term of this Agreement Licensee shall at all times maintain in full force and effect workers' compensation insurance as required by the laws of the State of California. Licensee may be permissibly self-insured in accordance with applicable law.
E. Forms of Policies: Deductibles. All insurance policies required by this section shall provide for severability of interests; shall provide that an act or omission of one of the named or additional insureds shall not reduce or void coverage to the other named or additional insureds, shall not reduce or void coverage to the other named or additional insureds; and shall afford coverage for all claims based on acts, omissions, injury and damage, which claims occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period. All insurance policies required to be carried under this section shall be (a) written by companies rated A-VII or better in Best's Insurance Guide and authorized to do business in California, and (b) name City, its officers, officials, employees and volunteers as additional insureds. Any deductible amounts in excess of $5,000 under any insurance policies required to be carried by Licensee by this section shall be subject to City's prior written approval. Licensee shall be responsible for any such deductible amount, so that so far as City is concerned, it will be as if the insurance had no deductible.
Each insurance policy required above shall provide that coverage shall not be cancelled, except with no less than thirty (30) days prior notice to City, Licensee hereby grants to City a waiver of any right to subrogation which any insurer of said Licensee may acquire against City by virtue of the payment of any loss under such insurance. Licensee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not City has received a waiver of subrogation endorsement from the insurer.
City reserves the right to modify these insurance requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage or other special circumstances.
City, its officers, officials, employees and volunteers are to be covered as additional insureds on the commercial general liability policy with respect to liability arising out of work or operations performed by or on behalf of the Licensee including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Licensee's insurance (at least as broad as ISO Form CG 20 10 11 85 or both CO 20 10 and CG 20 37 forms if later revisions are used).
For any claims related to this Agreement, the Licensee's insurance coverage shall be primary insurance as respect to City, its officers, officials, employees and volunteers.
Any insurance or self-insurance maintained by City, its officers, officials, employees or volunteers shall be excess of Licensee's insurance and shall not contribute to it.
F. Insurance Endorsements: Failure to Deliver. Licensee shall furnish City upon execution of this Agreement, and thereafter within 30 days prior to the expiration of each such policy, amendatory endorsements issued by the insurer carrier of each policy of insurance carried hereunder and such policy endorsement to verify the additional insured status of City. The endorsements shall expressly provide that the policy shall not be cancellable or subject to reduction of coverage or otherwise be subject to modification except after 30 days' prior written notice to City. If Licensee shall fail to procure such insurance or deliver such endorsements, City may, at its option, and in addition to City's other remedies in the event of default by Licensee under this Agreement procure the same for the account of Licensee, and the cost thereof shall be paid to City as an additional license fee. Failure to obtain and maintain the required endorsements prior to the commencement of the Baseball Season in 2023 shall not waive Licensee's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.
Section 5. NOTICES
(A) All notices required or permitted shall be in writing and shall be deemed delivered when mailed via United States Postal Service post office or served by personal delivery to the person or the office identified at the address provided below or at such other address as the receiving party may have prescribed by written notice to the sending party.
CITY: City of Marysville
Attention: Community Development Director
526 C Street
Marysville, CA 95901
LICENSEE: Pecos League of Professional Baseball Clubs LLC Attn: Andrew Dunn, Commissioner
PO Box 271489
Houston, TX 77277
575-680-2212
Section 6. MISCELLANEOUS PROVISIONS
(A) The Licensee, its officers, agents, employees and invitees, and members shall comply with all rules and regulations prescribed by the City for the use of the Facilities and with all applicable rules and regulations, laws, and ordinances of any governmental agency. No activity shall be held in the Facilities that is in violation of any law.
(B) Except as the City may specify in writing, the Licensee and the Licensee’s personnel shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. The Licensee and the Licensee’s personnel shall have no authority, express or implied, to bind the City to any obligations whatsoever. Licensee may not assign, in whole or in part, this Agreement and any rights thereunder.
(C) The Licensee shall not assign any right or obligation pursuant to this Agreement without the prior written consent of the Department Director. Any attempted or purported assignment without the Department Director’s written consent shall be void and of no effect.
(D) License Fee Payable in United States Money. License Fee and all other sums payable under this Agreement must be paid in lawful money of the United States of America,
(E) No Partnership or Other Legal Entity Formed. By virtue of this Agreement no partnership, joint venture, or other legal entity is formed between the parties and neither becomes the guarantor or obligator of any debt, liability or obligation of the other.
(F) Licensee’s Employees No employee, agent, contractor, or other person to the employ of one party shall be deemed to be in the employ of the other party. (G) No Independent Contractor. Neither City, nor Licensee, shall be independent contractors of one another pursuant to the terms of this Agreement. (H) No Liens or Encumbrances.
a) Licensee shall not permit to be enforced against the Baseball Park or any part of them, any mechanic’s, materialmen’s, contractor’s or subcontractor’s lien arising from any work of improvement, however it may arise. Licensee shall defend and indemnify City against all liability and loss of any type arising out of work performed at the Baseball Park by Licensee, together with reasonable attorneys’ fees and all costs and expenses incurred by City in negotiation, settling defending or otherwise protecting against such claims in the event of the breach by Licensee of the duty to defend or indemnify City.
b) If Licensee does not protect the Baseball Park from a lien or liens as provided in paragraph A, and a final judgment has been rendered against Licensee by a court of competent jurisdiction for the foreclosure for a mechanic’s, materialman’s, contractor’s or subcontractor’s lien claim, and if Licensee fails to stay the execution of the judgment by lawful means or to pay the judgment, City shall have the right, but not the duty, to pay or otherwise discharge, stay, or prevent the execution of any such judgment or lien or both. Licensee shall reimburse City for all sums paid by City under this paragraph, together with all City’s reasonable attorneys’ fees and costs, plus interest on those sums, fees and costs at the rate of 10% per year from the date of payment until the date of reimbursement.
c) City understands that preliminary notices of liens may be given from time to time by those performing work on the Baseball Park and that the giving of such preliminary notice does not constitute a violation of paragraphs A and B above.
d) Licensee shall not pledge any or all of this Agreement as collateral for any loan or obligation, nor shall Licensee mortgage any or all of the Baseball Park for any purpose.
e) Integrated Agreement; Amendments. This Agreement covers all matters concerning the use and occupancy of the Baseball Park by Licensee. All prior understandings, whether written or oral, shall be of no further force or effect. All amendments hereto shall be in writing, signed by both parties. f) Authority. Each party represents that the person signing this Agreement on its behalf has been duly authorized to do so in accordance with all applicable laws pertaining thereto and that the signature of such person is to be construed as legally binding the party to the terms and conditions of this Agreement.
g) Binding on Heirs, Successors, and Assigns. This Agreement, and each term and condition of it, shall be binding on the heirs, successors, and assigns of the parties. Nothing in this subparagraph permits Licensee to assign or sublet all or any rights under this Agreement.
h) Modification; Waiver. Changes or modifications to this Agreement may be made by mutual written agreement of the parties. No change or modification shall be effective unless in a writing executed by the parties.
No waiver shall be deemed given unless in writing, and one waiver shall not constitute a subsequent waiver.
i) Provisions are Covenants and Conditions. All provisions, whether covenants or conditions, on the part of Licensee shall be deemed to be both covenants and conditions.
j) Nuisance. Licensee shall not commit or permit the maintenance or commission of any nuisance within the Baseball Park.
k) Captions. The captions of the various sections or paragraphs of this Agreement are for convenience and ease of reference only and do not define, limit, augment or describe the scope, content or intent of this Agreement or of any part of this Agreement.
l) Number and Gender. The singular number includes the plural whenever the context so requires. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter and the feminine includes the neuter and the masculine, and each includes corporation, partnership or other legal entity when the context so requires.
m) Severability. The unenforceability, invalidity or illegality of any provision shall not render the other provisions unenforceable, invalid or illegal. n) Exclusive Representative. The parties agree that they shall each designate exclusive representatives for purposes of ongoing communications concerning this Agreement. Each party agrees that it shall not communicate with other persons concerning the subject matter of this Agreement except with the designated representatives of each party. In that regard the designated representative(s) for Licensee shall be Andrew Dunn, the designated representative for City shall be Dan Flores. Either party may change its designated representative(s) by giving notice to the other party pursuant to Section 13 subdivision 7 of this Agreement. o) Governing Law and Attorneys’ Fees. This Agreement shall be governed and construed in accordance with the laws of the State of California. If this Agreement gives rise to a dispute, lawsuit or other legal proceeding between the parties hereto, the prevailing party shall be entitled to recover its court costs and reasonable attorneys’, expert fees in addition to any other relief to which such party may be entitled.
p) Authority. Each individual executing this Agreement on behalf of Licensee represents and warrants that he is duly authorized to execute and deliver this Agreement on behalf of Licensee.
q) Time is of the Essence. Time is of the essence in performance of this Agreement.
r) No Third Party Beneficiaries. Except as specifically provided in this Agreement, nothing in this Agreement is intended to create any third-party benefit.
s) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together, when signed by all the parties hereto, shall constitute one and the same instrument.
Section 7. WARRANTY OF CAPACITY TO EXECUTE AGREEMENT
The person signing this Agreement on behalf of the Licensee warrants that he/she has the authority to do so and to bind the Licensee to this Agreement and all the terms and conditions contained herein.
(A) Each person signing below represents that he/she has read this Agreement, understand its terms, and agrees on behalf of such party that such party will be bound by those terms.
Executed as of the day and year first above stated:
Pecos League of Professional City of Marysville
Baseball Clubs LLC a Municipal Corporation
Signatures of Authorized Persons:
By: By:
Print Name: Print Name:
Title: Title:
APPROVED AS TO FORM
Office of the City Attorney
Attachments: Exhibit A - Insurance Requirements for License Agreements Exhibit B - “PECOS FACILITY USE FEES”
Exhibit C - “PECOS FACILITY USE SCHEDULE
Exhibit D - Personal Guarantee of Agreement
EXHIBIT A INSURANCE REQUIREMENTS FOR LICENSE AGREEMENTS A. Insurance Policies: The Licensee shall, at all times during the term of this License, maintain and keep in full force and effect, the following policies of insurance with minimum coverage as indicated below and issued by insurers with AM Best ratings of no less than A-:VI or otherwise acceptable to the City.
Insurance Minimum
Coverage
Limits
Additional Coverage Requirements
1. Commercial
general liability
$ 2 million per
occurrence
Coverage must be at least as broad as ISO CG 00 01 and
must include completed operations coverage. If insurance applies separately to a project/location, aggregate may be equal to per occurrence amount. Coverage may be met by
a combination of primary and umbrella or excess
insurance, but umbrella and excess shall provide
coverage at least as broad as specified for underlying
coverage. Coverage shall not exclude subsidence.
$ 2 million
aggregate
2. Business auto
coverage
$ 2 million ISO Form Number CA 00 01 covering any auto (Code 1), or if Licensee has no owned autos, then hired, (Code 8) and non-owned autos (Code 9), with limit no less than $ 2
million per accident for bodily injury and property damage.
3. Workers’
compensation and
employer’s liability
$ 1 million As required by the State of California, with Statutory Limits and Employer’s Liability Insurance with limit of no less than $ 1 million per accident for bodily injury or disease. The Workers’ Compensation policy shall be
endorsed with a waiver of subrogation in favor of the City for all work performed by the Licensee, its employees,
agents and subcontractors.
B. Endorsements:
1. All policies shall provide, or be endorsed to provide, that coverage shall not be canceled by either party, except after prior written notice has been provided to the entity in accordance with the policy provisions.
2. Liability, umbrella, and excess policies shall provide or be endorsed to provide the following:
a. For any claims related to this project, the Licensee’s insurance coverage shall be primary, and any insurance or self-insurance maintained by the City shall be excess of the Licensee’s insurance and shall not contribute with it; and, b. The City of Marysville, its officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL policy. General liability coverage can be provided in the form of an endorsement to the Licensee’s insurance at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 and CG 20 37 if a later edition is used.
C. Verification of Coverage and Certificates of Insurance: The Licensee shall furnish the City with original certificates and endorsements effecting coverage required above. Certificates and endorsements shall make reference to policy numbers. All certificates and endorsements are to be received and approved by the City before work commences and must be in effect for the duration of the License. The City reserves the right to require complete copies of all required policies and endorsements.
D. Other Insurance Provisions:
1. No policy required by this License shall prohibit the Licensee from waiving any right of recovery prior to loss. The Licensee hereby waives such right with regard to the indemnitees.
2. All insurance coverage amounts provided by the Licensee and available or applicable to this License are intended to apply to the full extent of the policies. Nothing contained in this License limits the application of such insurance coverage. Defense costs must be paid in addition to coverage amounts.
3. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by eitherthe Licensee or the City. Self-insured retentions above $10,000 must be approved by the City. At the City’s option, the Licensee may be required to provide financial guarantees.
4. Sole Proprietors must provide a representation of their Workers’ Compensation Insurance exempt status.
5. The City reserves the right to modify these insurance requirements while this License is in effect, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
Exhibit B Pecos Facility Use Fees
Permit
Permit: Pecos League of Professional Baseball Clubs LLC Bryant Field ClientInformation
Name:
Address:
Pecos League of Professional Baseball Clubs LLC
PO Box 271489
Houston TX 77277
FacilityUseFees
Baseball Field –Bryant Field
Utilities- Pecos League will pay all utilities for the term of the agreement. The City will bill the league monthly for these utilities Maintenance – Pecos League will be responsible for all maintenance for the term of the lease. The City will provide a working mower and some tools to be used for maintenance at Bryant Field only.
Fees
$11,000 per Year plus a $2500 deposit
Utilities 100% reimbursed by Pecos League
Exhibit C Facility Use Schedule
Permit
Permit: Pecos League Baseball (Summer 2023) Bryant Field ClientInformation
Name:
Address :
Pecos League Baseball
PO Box 271489
Houston TX 77277
Facility & Extra Summary
Location Date Time
Bryant Field 5/25/23 7:00PM
Bryant Field 5/26/23 7:00PM
Bryant Field 5/27/23 7:00PM
Bryant Field 5/28/23 7:00PM
Bryant Field 5/30/23 6:00PM
Bryant Field 6/1/23 6:00PM
Bryant Field 6/2/23 7:00PM
Bryant Field 6/3/23 6:00PM
Bryant Field 6/6/23 6:00PM
Bryant Field 6/8/23 7:00PM
Bryant Field 6/9/23 6:00PM
Bryant Field 6/10/23 7:00PM
Bryant Field 6/11/23 7:00PM
Bryant Field 6/13/23 7:00PM
Bryant Field 6/14/23 7:45PM
Bryant Field 6/15/23 7:00PM
Bryant Field 6/16/23 6:00PM
Bryant Field 6/17/23 6:00PM
Bryant Field 6/18/23 7:00PM
Bryant Field 6/20/23 6:00PM
Bryant Field 6/21/23 7:00PM
Bryant Field 6/23/23 6:00PM
Bryant Field 6/24/23 7:00PM
Bryant Field 6/25/23 6:00PM
Bryant Field 6/27/23 6:00PM
The City of Marysville hereby grants (hereinafter called the "Licensee") represented byPecos LeagueBaseball, permissionto use theFacilitiesasoutlined, subjecttotheTermsandConditionsofthisPermit contained herein and attached hereto all of which form part of this Permit. The City hereby grants to Licensee on the terms and conditions set forth in this Agreement, a license for use of the Baseball Park for those specified in Exhibit B attached hereto. Licensee shall conduct all activities at the Baseball Park in compliance with all laws.
Facility & Extra Summary
Location Date Time
Bryant Field 6/28/23 6:00PM
Bryant Field 6/29/23 6:00PM
Bryant Field 6/30/23 6:00PM
Bryant Field 7/1/23 7:00PM
Bryant Field 7/2/23 7:00PM
Bryant Field 7/4/23 7:00PM
Bryant Field 7/7/23 6:00PM
Bryant Field 7/8/23 7:00PM
Bryant Field 7/9/23 7:00PM
Bryant Field 7/11/23 6:00PM
Bryant Field 7/13/23 6:00PM
Bryant Field 7/14/23 6:00PM
Bryant Field 7/15/23 7:00PM
Bryant Field 7/16/23 7:00PM
Bryant Field 7/19/23 6:00PM
Bryant Field 7/20/23 6:00PM
Bryant Field 7/21/23 7:00PM
Bryant Field 7/22/23 7:00PM
Bryant Field 7/23/12 7:00PM
Bryant Field 7/24/23 7:00PM
Bryant Field 7/26/23 7:45PM
Bryant Field 7/27/23 10:00PM
Bryant Field 7/28/23 6:00PM
Bryant Field 7/29/23 7:00PM
Bryant Field 7/30/23 7:00PM
Extra Fees:
Name # Unit Price Total Usage Subtotal Total Price
-Utilities to be reimbursed to the City
of Marysville monthly
- - - - -
Extra Fees Details
Due Date Amount Remaining Balance
- - -
The cost of utility services, namely the water, sewer, gas, electric, as well as trash and recycle product removal and any other services or utilities shall be the responsibility of Licensee.
Payment Schedule
Permit Total
Rental Fee Extra Fees Discount Total
$11,000 per Season $0.00 $0.00 $11,000
Licensee shall pay an annual license use fee in advance of $11,000 per season. (A "season" shall be comprised of reserved dates for use of Bryant Field between May 15th and August 15th of any given year.) The License Use Fee for the 2023 Season shall be paid upon execution of this Agreement. For subsequent Baseball Seasons, the License Use Fee shall be paid on or before January 31st of the year in question. By way of example, the License Use Fee for the 2024 Season shall be paid on or before January 31, 2024. The License Use Fee under this Agreement shall be $11,000 per season. In addition to the foregoing, Licensee shall pay the cost of utility services at those times and in those amounts as specified above. Any other cost, fee, charge, or monetary obligation shall be paid within thirty (30) days of receipt of an invoice from the City.
Exhibit D
PERSONAL GUARANTY OF AGREEMENT
In consideration of the City of Marysville (the “City”) executing and entering into the above agreement with Pecos League of Professional Baseball Clubs LLC (as "Licensee, the undersigned, Andrew Dunn, (collectively "Guarantors") from PO Box 271489 Huston, TX, 77277, jointly and severally, irrevocably and unconditionally guaranty all of the obligations of Licensee under the above Agreement Guarantors specifically agree that this Guaranty is and shall be an open and continuing guaranty and ail obligations and liabilities to which it applies or may apply shall be conclusively presumed to have been created in reliance on this Guaranty and shall continue in full force and effect.
Date: Andrew Dunn, individually as a
Guarantor