AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO,
AND THE LOS ANGELES DODGERS FOUNDATION,
FOR THE INSTALLATION OF BASEBALL FIELD IMPROVEMENTS
AT BLAIR PARK
THIS AGREEMENT (“AGREEMENT”) is entered into this 22nd day of September, 2023 (the “EFFECTIVE DATE”), by and between the City of San Bernardino, a municipal corporation (“CITY”) acting by and through its Parks, Recreation and Community Services Department (“PRCSD”), and The Los Angeles Dodgers Foundation, a California nonprofit public benefit corporation (“DONOR”), for the installation of baseball field improvements at Blair Park in San Bernardino. CITY and DONOR may each be referred to individually as a “PARTY” and collectively as the “PARTIES.”
WHEREAS, CITY, through its PRCSD, owns, operates and maintains real property commonly known as Blair Park (“PROJECT LOCATION”), located at 1466 West Marshall Boulevard, San Bernardino, CA 90302;
WHEREAS, DONOR supports key cornerstone programs in sports and recreation, education and literacy, and health and wellness that benefit children and families throughout the greater Los Angeles area and is exempt from federal income taxation under Internal Revenue Code (“IRC”) Section 501(c)(3) and not a private foundation under Section 509(a) of the Code;
WHEREAS, DONOR, with support from other contributors, and in collaboration with other cities and counties in the Los Angeles area, has previously completed over fifty (50+) Dodgers Dreamfields at various park sites in the Los Angeles area; WHEREAS, PRCSD seeks to improve its park facilities and promote active sports play among youth in San Bernardino;
WHEREAS, the PARTIES have agreed to collaboratively provide necessary funding for the development and improvement of three (3) baseball fields (collectively, the “FIELDS”), as Dodgers Dreamfields, with a total monetary value of up to $1,718,844, at the PROJECT LOCATION; and
WHEREAS, such funding will provide for improvements such as new playing surfaces, field enclosures, fencing, an irrigation system, dugouts, an electronic scoreboard, signage, bullpens and mound, as well as project management services (collectively, “FIELD IMPROVEMENTS”), as fully described in the Project Description and Cost Estimate sheet attached hereto and incorporated herein by reference as Exhibit A, pursuant to project plans and specifications (“PLANS”) mutually approved by the PARTIES;
2 WHEREAS, CITY has agreed to provide additional upgrades at the PROJECT LOCATION to include restrooms, concession stands and a parking lot; WHEREAS, DONOR wishes to donate up to $172,576 and has secured funding amounting up to approximately $1,546,268 through DONOR resources and contributions from additional DONOR partners (“DONOR PARTNERS”) to provide the remaining funding for the FIELD IMPROVEMENTS, in the amount up to $1,718,844, as further described below;
WHEREAS, DONOR wishes to provide, and CITY wishes to accept, these gifts for the FIELD IMPROVEMENTS (the “GIFT”) to be constructed and/or installed at the PROJECT LOCATION; and
NOW, THEREFORE, in consideration of the foregoing and the terms and conditions contained herein, and the performance thereof, the PARTIES to this AGREEMENT mutually agree as follows:
Pursuant to this AGREEMENT, the PARTIES agree to work cooperatively to have FIELD IMPROVEMENTS installed at the PROJECT LOCATION, as described herein, and DONOR agrees to donate the GIFT to CITY, and CITY agrees to accept such GIFT, on the terms and conditions set forth below.
1. Agreement Contacts.
CITY: City of San Bernardino
201 N. "E" Street, Bldg A
San Bernardino, CA 92401
Attn: Genoveva Rocha, City Clerk
Parks, Recreation and Community Services Department
201-A North E Street, Ste. 103
San Bernardino, CA 92401
Attn: Lydie Gutfeld, Director
DONOR: The Los Angeles Dodgers Foundation
Dodger Stadium
1000 Vin Scully Avenue
Los Angeles, CA 90012
Attn: Nichol Whiteman, Chief Executive Officer
2. The Projects. DONOR shall contract with Landmark Construction Solutions, Inc. (“LANDMARK”) to manage the installation of the FIELD IMPROVEMENTS at the 3 PROJECT LOCATION, including, without limitation, the coordination of work with any contractors and/or subcontractors (collectively, the “CONTRACTORS”) hired by LANDMARK and/or DONOR. The FIELD IMPROVEMENTS will be installed in accordance with the Design and Project Location Renderings attached hereto as Exhibit B and Project Timeline attached hereto as Exhibit C, both of which are incorporated herein by this reference.
Each of DONOR’s and DONOR PARTNERS’ names, logos, trademarks and other identifying marks (“DONOR SIGNAGE”) may, upon the prior written consent of each of DONOR and DONOR PARTNERS, be incorporated into the design of the completed FIELDS, on or around the particular FIELDS, its dugouts, scoreboards, or other FIELDS amenities, subject to CITY’s approval.
DONOR and LANDMARK shall be provided access to the PROJECT LOCATION, including, without limitation, the ingress-egress and usage of certain areas for staging and storage, under the authority of a Right of Entry Permit (“ROE”) issued by PRCSD.
3. The GIFT. DONOR and DONOR PARTNERS have agreed to provide the GIFT, in a total amount of up to $1,718.844.
4. Financial Contributions. The PARTIES agree that financial contributions be provided by DONOR and DONOR PARTNERS as indicated below.
Contributor Amount
DONOR $172,576
Security Benefit $100,000
LA84 Foundation $50,000
San Manuel Board of
Mission Indians
$1,296,268
Helen and Will Webster
Foundation
$100,000
DONOR may secure additional funding from other DONOR PARTNERS to defray its contribution prior to the completion of the FIELD IMPROVEMENTS. The PARTIES acknowledge and agree that, in the event of project cost overruns and/or savings required by or due to a change in the scope of FIELD IMPROVEMENTS, the implementation of any changes in the scope of FIELD IMPROVEMENTS or reallocation of funding (“PROJECT CHANGES”) shall be subject to the mutual agreement of the PARTIES. Said mutual agreement may require the prior approval of the San Bernardino City Council. Upon approval of the PROJECT CHANGES by the PARTIES, DONOR shall coordinate with LANDMARK to have LANDMARK implement such PROJECT CHANGES, pursuant to the intent mutually agreed to by the PARTIES.
4 5. CITY’s Covenants: CITY hereby covenants that, in order to induce DONOR to enter into this AGREEMENT and to provide the GIFT:
(a) CITY will provide additional upgrades at the PROJECT LOCATION to include restrooms, concession stands and a parking lot and CITY will maintain the FIELDS in a safe and attractive manner consistent with DONOR’s image and reputation, and in accordance with the terms and conditions of applicable product warranty(ies);
(b) CITY, which owns the PROJECT LOCATION, will ensure that the PROJECT LOCATION is free of any liens, encumbrances, or third-party claims that would be inconsistent with the intent that the FIELDS be used for recreation and play activities;
(c) CITY shall obtain, or shall assist LANDMARK in obtaining, all necessary permits, authorizations and consents, as well as right of entry to access the park site to perform the necessary work;
(d) CITY shall recognize DONOR and DONOR PARTNERS for its contributions through the placement of DONOR SIGNAGE on the FIELDS, which DONOR SIGNAGE shall be kept in place for so long as the FIELDS are in operation.
The content, design, size, and placement of all DONOR SIGNAGE at the FIELDS shall be determined by mutual agreement of the PARTIES, shall be consistent with the CITY’s sign laws and PRCSD Sponsorship Recognition Policy, and shall require approval by PRCSD prior to being placed or installed at the FIELDS;
(e) CITY shall ensure that the FIELDS shall be used exclusively for recreation and play activities for so long as the FIELDS remains open to the public; and (f) CITY is authorized to enter into this AGREEMENT.
(g) Sections 5(a), 5(b), 5(d) and 5(e) shall survive the expiration or earlier termination of this AGREEMENT.
6. DONOR Covenants: DONOR hereby covenants that, in order to induce CITY to enter into this AGREEMENT and to accept the GIFT:
(a) In accordance with the GIFT and this AGREEMENT, DONOR shall contract with LANDMARK and/or CONTRACTORS and shall make payments directly to LANDMARK and/or CONTRACTORS, if applicable, for costs and expenses related to FIELD IMPROVEMENTS, in accordance with the project description and cost estimates attached hereto as Exhibit A and/or as mutually agreed upon by the PARTIES, at no cost or expense to CITY; 5 (b) In any contracts entered into hereunder by DONOR with LANDMARK and/or any CONTRACTORS, DONOR shall require LANDMARK and/or such CONTRACTORS, to agree in writing to be in compliance with all applicable local, state, and federal regulations and requirements as related to the FIELD IMPROVEMENTS;
(c) In any contracts entered into hereunder by DONOR with LANDMARK and/or any CONTRACTORS, DONOR shall require LANDMARK and/or such CONTRACTORS performing FIELD IMPROVEMENTS at the PROJECT LOCATION to possess appropriate insurance coverage(s), to sign both a waiver of liability and indemnity agreement in compliance with the terms and conditions of the Right of Entry Permit issued by PRCSD, authorizing the performance of the FIELD IMPROVEMENTS at the PROJECT LOCATION; (d) In any contracts entered into hereunder by DONOR with LANDMARK and/or any CONTRACTORS, DONOR shall require that LANDMARK and/or such CONTRACTORS adhere to the terms and conditions of this AGREEMENT; (e) In any contracts entered into hereunder by DONOR with LANDMARK and/or any CONTRACTORS, DONOR shall require that the FIELD
IMPROVEMENTS be performed in accordance with plans and specifications mutually approved by the PARTIES and pursuant to the terms and conditions of this AGREEMENT; and
(f) DONOR is authorized to enter into this AGREEMENT.
7. Status: CITY affirms that it is a tax-exempt municipal corporation, and DONOR affirms that it is a California nonprofit public benefit corporation.
8. CITY’s Books and Records: Throughout the TERM, the PARTIES agree to maintain sufficient operating and financial books, records, and related documentation regarding the GIFT, the FIELD IMPROVEMENTS, and the FIELDS, and any related activities of the PARTIES, and further agree to allow DONOR reasonable access to such books, records, and other documentation as they relate to the GIFT and the implementation of this AGREEMENT.
9. Publicity, Recognition and Use:
(a) The PARTIES shall acknowledge one another as co-contributors in written material(s), news releases, and related marketing or publicity materials, including, but not limited to, an initial press conference, and/or dedication ceremonies for the FIELDS;
(b) The PARTIES agree to assist and cooperate in a mutually acceptable grand- opening and/or dedication event at the FIELDS;
6 (c) The PARTIES also shall have the right to publicize, show photographs of, use the name of, and otherwise promote their respective contributions to the FIELDS;
(d) DONOR shall be given usage of the FIELDS for sports and/or special events upon reasonable notice to PRCSD, subject to CITY’s prior approval, which approval shall not be unreasonably denied, delayed, or withheld and the signing of both a waiver of liability and indemnity agreement. CITY shall not charge DONORS a fee for use of the FIELDS for these events but may charge DONOR for CITY’s personnel expenses for staff supervision, security, maintenance, and/or traffic control during the event(s); (e) DONOR shall have the right (but not the obligation) to place and remove DONOR SIGNAGE on or around the FIELDS, provided that DONOR SIGNAGE is consistent with CITY’s sign laws and PRCSD policies, procedures, and guidelines, and subject to the prior approval of CITY; (f) The naming of the FIELDS shall be subject to the prior approval of DONOR and CITY, pursuant to PRCSD’s naming policy;
(g) DONOR shall have the right, at DONOR events at the FIELDS (e.g., events as described in 9(a), 9(b), or 9(d) above), to operate a booth or similar area for promotional purposes upon the signing of both a waiver of liability and indemnity agreement. The size and location of the booth or similar area shall be subject to CITY’s prior approval, not to be unreasonably withheld; and (h) The PARTIES agree to cooperate and coordinate with respect to the nature, text, and timing of any press release or public announcement(s) concerning the existence of the GIFT, the FIELD IMPROVEMENTS, the FIELDS, and/or this AGREEMENT; the use or promotion of the PROJECT LOCATION; and/or the construction of any FIELD IMPROVEMENTS at the FIELDS, except as may be legally required by applicable laws, regulations, or judicial order.
(i) The PARTIES agree to notify each other in writing of any press release, public announcement, marketing or promotion of the FIELDS. Further, any press release, public announcement, marketing materials, or brochures prepared by any of the PARTIES, shall appropriately acknowledge the contributions of all of the PARTIES;
(ii) To the extent stipulated in any grant agreement, partnership agreement, donation agreement, or other agreement with respect to the GIFT and the FIELD IMPROVEMENTS, the PARTIES shall duly notify any grantors, donors, partners or other party, and each other, prior to any public or media event publicizing the accomplishments funded by any grant agreement or other funding source, and shall provide the 7 opportunity for attendance and participation by grantor, donor, partner, or other respective representatives;
(iii) The PARTIES shall coordinate the scheduling and organization of any public or media event to provide the opportunity for attendance and participation by officials and/or representatives of CITY and DONOR; including elected officials and public officials. Similarly, any document, written report, or brochure prepared by either CITY or DONOR, in whole or in part, pursuant to the acquisition of property and/or installation of improvements, shall contain any acknowledgements required under any related grant agreement, partnership agreement, donation agreement or other agreement or funding source; and (iv) DONOR agrees that any public release or distribution of information related to the FIELD IMPROVEMENTS, the FIELDS, this
AGREEMENT, and/or any related project, programs or services, shall include the following statement at the beginning or introduction of such release:
“In collaboration with the City of San Bernardino,
Parks, Recreation and Community Services
Department,”
(v) Sections 9(a), (c)-(e), (g) and (h) shall survive the expiration or earlier termination of this AGREEMENT.
10. Absence of DONOR Warranties: DONOR makes no representations or warranties hereunder of any kind, expressed or implied, as to any matter, including implied warranties of fitness for a particular purpose, merchantability or otherwise relating to the FIELDS, the FIELD IMPROVEMENTS, or any component thereof, or the performance by LANDMARK and/or any CONTRACTORS of any services. In no event, except as provided in Paragraph 11 of this AGREEMENT, will DONOR be liable for any damages, including personal injury, lost profits, or other consequential, exemplary, incidental or punitive damages arising out of this AGREEMENT, the GIFT, the FIELD IMPROVEMENTS, and/or the FIELDS.
11. Indemnification/Hold Harmless:
(a) Except for the active negligence or willful misconduct of DONOR, or any of DONOR’s officers, directors, employees, accountants, attorneys, agents, affiliates, subsidiaries, successors, insurers and assigns, CITY agrees to indemnify, defend, and hold harmless DONOR, its officers, directors, employees, accountants, attorneys, agents, affiliates, subsidiaries, successors, insurers and assigns from and against any and all third party claims, demands, losses, damages, liabilities, costs and expenses (including reasonable legal/attorneys' fees and expenses arising out of or related to any 8 legal proceeding and any legal appeal) related to the GIFT, the FIELDS, the FIELD IMPROVEMENTS, or this AGREEMENT, and liabilities of any kind or nature whatsoever, whether in contract, tort, or otherwise, resulting from any claim (including, without limitation, personal injury, death, or property damage) actually or allegedly arising out of or in connection with the negligent acts, errors, omissions or willful misconduct, including the maintenance, location, or condition of the FIELDS, or any person's use of the FIELDS, whether authorized or unauthorized, proper or improper. Without limiting this obligation, CITY will maintain the insurance described in Section 12 below for so long as the FIELDS remain in operation or open to the public. (b) Except for the active negligence or willful misconduct of CITY, or any of its boards, officers, agents, employees, assigns and successors-in-interest, DONOR, during DONOR special events (including the operation of booths or similar area for promotional purposes) undertake(s) and agree(s) to defend, indemnify, and hold harmless CITY and any of its boards, officers, agents, employees, assigns and successors in interest from and against all suits and causes of action, claims, losses, demands and expenses, including, but not limited to, legal/attorney's fees, expenses and cost of litigation, damage or liability of any nature whatsoever, for death or injury to any person, including DONOR’s employees and agents, or damage or destruction of any property of any of the PARTIES hereto or of third parties, arising in any manner by reason of the negligent acts, errors, omissions or willful misconduct incident during DONOR’S use of the FIELDS or use by DONOR’s CONTRACTORS of any tier. Without limiting this obligation, DONOR will maintain the insurance described in Section 12 below during the DONOR special events occurring at the FIELDS during the TERM of this AGREEMENT. (c) This Section 11 shall survive the expiration or earlier termination of this AGREEMENT.
12. Insurance Requirements:
(a) CITY shall obtain and keep in effect for the period of time the FIELDS are in operation or open to the public, at CITY’s expense, the following insurance coverage:
Type of Insurance Limits of Liability
Commercial General Liability (including bodily injury, $2,000,000.00 property damage, products/completed operations,
personal injury, participants’ bodily injury liability
and contractual liability coverages)
9 (b) The coverage limits described above may be obtained through a self- insurance program or a combination of self-insurance and excess coverage from a commercial insurer. In the event that commercial insurance is purchased, coverage shall be written by insurance companies that are satisfactory to DONOR and that are licensed to do business in the state or country in which the FIELDS are located. The policies, including self- insurance, shall be endorsed to name DONOR and its directors, officers, employees, agents, and affiliates as additional insureds, and shall be written on an occurrence basis.
(c) DONOR shall maintain the level of insurance described above in this Section 12 for any special events that DONOR may operate or perform, whether independently or together, at the FIELDS during the TERM of this AGREEMENT after opening the FIELDS to the public. Said insurance shall be endorsed to name the City of San Bernardino, its officers, officials, employees and volunteers as additional insureds. Additionally, said insurance shall be primary and not contribute to any insurance or self- insurance maintained by City.
(d) Section 12 shall survive the expiration or earlier termination of this AGREEMENT.
13. Use of Marks: Notwithstanding any provision herein, no PARTY shall use any other PARTY’s trademarks, tradenames, and/or logos (each, a “MARK”) without the prior written approval from such PARTY. Each MARK shall remain the sole and exclusive intellectual property of the pertinent PARTY.
14. Term: The “TERM” of this AGREEMENT shall commence upon execution of this AGREEMENT (“Effective Date”) and shall expire one (1) year from the Effective Date, unless terminated earlier under the terms of this AGREEMENT. (a) Notwithstanding the foregoing, if any DONOR PARTNER fails to make a material donation to DONOR, (i) the PARTIES may mutually agree to extend the term until DONOR is able to obtain a donation from one or more new or existing donor partners to make up for the donation shortfall; (ii) the PARTIES may mutually agree to adjust the Project Description and Cost Estimates attached hereto as Exhibit A to account for such shortfall; or (iii) DONOR or CITY may terminate this AGREEMENT.
(b) If a PARTY elects to terminate this AGREEMENT, it must send written notice to the other PARTY. This AGREEMENT will terminate twenty (20) days after the sending of such notice.
(c) Upon any termination of this AGREEMENT, DONOR and CITY shall be obligated only with respect to their proportionate share of the GIFT funds expended on or obligated for the FIELD IMPROVEMENTS through the date of termination.
10 (d) Upon any termination, CITY shall own and have the right to all FIELD IMPROVEMENTS completed or in progress as of the date of termination.
15. Disclaimer: It is expressly understood by CITY and DONOR that no director, member, officer, employee or other representative of CITY and/or DONOR shall incur any financial responsibility or liability of any kind or nature whatsoever, in connection with this AGREEMENT, or any amendment and/or subsequent agreement regarding the subject matter hereof. The parties agree that the liability of DONOR hereunder shall be limited to the payment(s) pursuant to the terms and conditions of this AGREEMENT. This Section 15 shall survive the expiration or earlier termination of this AGREEMENT.
16. Relationship of the PARTIES: The PARTIES agree that no PARTY shall have any right, power, or authority to assume, create, or incur any expense, liability, or obligation, expressed or implied, on behalf of any other PARTY, except as expressly provided herein. The PARTIES are independent contractors, and this AGREEMENT is not intended to be, nor shall it be, construed as a joint venture, association, partnership, or other form of a business organization or agency relationship.
17. Post-Construction:
(a) Upon completion of construction, PRCSD shall conduct a post-development inspection to ensure that the FIELD IMPROVEMENTS have been developed in compliance with the terms and conditions of this AGREEMENT. (b) Following PRCSD’s acceptance of the completed FIELD IMPROVEMENTS, and subsequent to opening the PROJECT LOCATION to the public, DONOR shall have no involvement, whether financial or otherwise, with the use (other than as provided in Paragraph 9 of this AGREEMENT), operation, maintenance, landscaping, repair, insurance, programming or modifications of the FIELD IMPROVEMENTS.
18. Entire Agreement: This AGREEMENT supersedes any prior or contemporaneous oral or written understandings or communications between the PARTIES and constitutes the entire agreement of the PARTIES with respect to its subject matter.
This Agreement may not be amended or modified, except in a writing signed by the PARTIES.
19. Governing Law: This AGREEMENT shall be interpreted, construed and governed according to the laws of the State of California. In the event of litigation between the parties, venue in state trial courts shall lie exclusively in the County of San Bernardino, Superior Court, San Bernardino District, located at 247 West Third Street, San Bernardino, California 92415-0210. In the event of litigation in the United States District Court, venue shall lie exclusively in the Central District of 11 California, in Los Angeles. This Section 19 shall survive the expiration of earlier termination of this AGREEMENT.
20. Captions: All captions and headings in this AGREEMENT are for the purposes of reference and convenience only. They will not limit or expand the provisions of this AGREEMENT.
21. Counterparts: This AGREEMENT may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This AGREEMENT shall not be effective as to any PARTY unless and until it has been executed by or on behalf of every PARTY.
22. Force Majeure: Neither PARTY will be liable to the other or deemed to be in breach of this AGREEMENT if such PARTY is delayed or unable to perform, to the extent that such delay or failure is caused by any act of God, epidemic, pandemic (e.g., COVID-19), war, natural disaster, strike, lockout, labor dispute, work stoppage, flood, fire, third party criminal or terrorist act, quarantine or stay- at-home restriction, act of government, government declared emergency or disaster, or any other event beyond its reasonable control and without its fault or negligence (an “EXCUSABLE DELAY”). In the event of an EXCUSABLE DELAY, any performance times specified in this AGREEMENT shall be extended for an amount of time equivalent to the duration of the EXCUSABLE DELAY; provided, however, that if any EXCUSABLE DELAY continues for more than sixty (60) days, either PARTY may terminate this AGREEMENT without further obligation or liability after sending written notice to the other PARTY. This AGREEMENT will terminate five (5) days after the sending of such notice. [SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the PARTIES have executed this AGREEMENT as of the date first written above.
CITY OF SAN BERNARDINO
____________________________________________
Charles McNeely
City Manager
THE LOS ANGELES DODGERS FOUNDATION,
A California nonprofit public benefit corporation
____________________________________________
Nicholas Sandler
President
____________________________________________
Nichol Whiteman
Chief Executive Officer
Exhibit A
Project Description and Cost Estimates
14 15
Exhibit B
Design and Project Location Renderings
16 17
Exhibit C
Project Timeline
18