1 CITY OF SAN BERNARDINO
LICENSE AGREEMENT
This LICENSE AGREEMENT (“Agreement”), is made this 7th day of November, 2023 by and between the City of San Bernardino , a charter city and municipal corporation organized and operating under the laws of the State of California with its principal place of business at Vanir Tower, 290 North D Street, San Bernardino, CA 92401 (“CITY”), and California State University, San Bernardino (“LICENSEE”) CITY and LICENSEE are sometimes individually referred to as “Party” and collectively as “Parties”.
RECITALS
A. CITY is the owner of certain real property at 1135 E. Highland Ave. San Bernardino, CA 92404 , commonly referred to as Fiscalini Field, and legally described in Exhibit “A” attached hereto and incorporated herein by reference. (the “Property’).
B. Licensee desires to obtain CITY’S permission to enter onto the Property, for the purposes specified in Item 2 of the Basic License Provisions.
C. The Parties wish to enter into this License whereby CITY will allow Licensee to enter onto the Property, on a temporary basis, in order to carry out the Cal State San Bernardino Baseball Program as more particularly described in Exhibit “B” attached here to and incorporated herein by reference.
NOW THEREFORE, CITY and LICENSEE do hereby agree as follows:
AGREEMENT
PART I. BASIC LICENSE PROVISIONS
1. Description of Licensed Property:
The CITY’s real property is in the County of San Bernardino, State of California, as more particularly described in the attached Exhibit “A”.
2. Use of Licensed Property:
For the use of the Licensed Property , as more particularly desc ribed in the attached Exhibits “A” and “B”.
3. Commencement Date: Date of the Agreement first specified above.
4. Term: The term of this agreement shall commence on September 1 st 2023 and end December 31, 2024 (the “Initial Term”) with the option of three (3) one year renewals (“Option Renewals”) upon mutual consent of the PARTIES.
5. Intentionally Omitted.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 2 6. Licensing Fee
(A) Annual License Fee: $19,250.00.
(1) Year one $19,250.00
(2) Year two $19,250.00
(3) Year three $19,250.00
(B) License Fee Adjustment After Third Year:
(1) 5% Increase after Third Year of the
Agreement
(2) Year four $20,212.50
7. CITY Address:
City of San Bernardino
Vanir Tower, 290 North D Street
San Bernardino, CA 92401
Attn: City Manager
8. LICENSEE Address:
California State University, San Bernardino
5500 University Parkway
San Bernardino, CA 92407-2397
Attn: Cal State San Bernardino Athletics
The foregoing Basic License Provisions and the General License Provisions set forth in the attached Part II are incorporated into and made part of this Agreement.
PART II. GENERAL LICENSE PROVISIONS
1. General Grant. Subject to the terms and conditions hereinafter set forth, CITY hereby grants a revocable license to use the Licensed Property , for the purposes described in Exhibits “A” and “B” , together with rights for access and entry onto the Property as necessary or convenient for the use of the Licensed Property. In connection with this grant of license, LICENSEE, its employees, agents, customers, visitors, invitees, licensees and contractors (collectively, “LICENSEE’s Parties”), ma y, subject to the provisions hereof, have reasonable rights of entry and access onto adjoining real property of CITY if necessary for the use of the Licensed Property, with the time and manner of
INITIAL INITIAL
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C
3 such entry and access to be subject to CITY’S prior written approval. Notwithstanding the foregoing, the LICENSEE is granted shared use of the baseball field and exclusive use of the clubhouse and batting cages, as more particularly described in Exhibit “A”.
2. Term. The term (“Term”) of this Agreement shall commence on the “Commencement Date” specified in Item 3 of the Basic License Provisions. If Item 4 of the Basic License Provisions provides for a specific term, then this Agreement shall be a license for the term specified in said Item 4; provided, however, that CITY shall have the absolute right to terminate this Agreement prior to the date specified in Item 4 in its sole discretion pursuant to the termination provisions provided herein.
3. Use. LICENSEE shall use the Licensed Property solely for the purposes specified in Item 2 of the Basic License Provisions and for such lawful purposes as may be directly incidental thereto. No change shall be made by LICENSEE in the use of the Licensed Property without CITY’s prior written approval.
3.1 Notice Prior t o Initial Entry . LICENSEE shall provide CITY no less than three (3) days prior written notice before LICENSEE’s initial entry onto the Licensed Property for the purposes hereunder..
4. Condition of Premises . LICENSEE ACCEPTS THE LICENSED PROPERTY IN ITS “AS IS” CONDITION, WITH ALL FAULTS. LICENSEE ACKNOWLEDGES AND
AGREES THAT LICENSEE IS ENTERING THE LICENSED PROPERTY UNDER THIS
AGREEMENT BASED ON LICENSEE'S OWN INVESTIGATIONS AND KNOWLEDGE
OF THE PROPERTY AND THAT, EXCEPT AS OTHERWISE SPECIFICALLY STATED
IN THIS AGREEMENT, NEITHER CITY NOR ANY AGENT OF CITY, HAS MADE ANY
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
REGARD TO THE PHYSICAL CONDITION OF THE PROPERTY OR THE SUITABILITY
OF THE PROPERTY FOR ANY PARTICULAR PURPOSE OR USE, INCLU DING,
WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES REGARDING
THE APPLICABILITY OR NON -APPLICABILITY OF ANY LAWS, THE SOIL OR
SUBSOIL, SURFACE OR SUBSURFACE CONDITIONS, TOPOGRAPHY, POSSIBLE
HAZARDOUS SUBSTANCES CONTAMINATION, FILL, DRAINAGE, ACCESS TO
PUBLIC ROADS, AVAILABILITY OF UTILITIES, EXISTENCE OF UNDERGROUND
STORAGE TANKS, APPLICABILITY OF OR COMPLIANCE WITH ANY
ENVIRONMENTAL LAWS OR ANY OTHER MATTER OF ANY NATURE
WHATSOEVER. THE CITY IS NOT RESPONSIBLE FOR DAMAGE TO OR LOSS BY THEFT OF LICENSEE’S PROPERTY LOCATED IN OR ON THE PROPERTY.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 4 5. Termination of License.
A. Notwithstanding any other term or provision of this Agreement, CITY shall have the right to terminate this Agreement upon sixty (60) days prior written notice . In the event that such termination occurs in the middle of a year, LICENSEE shall be entitled to a pro-rata refund of the Annual License Fee to account for the remaining days of the year. By way of example, if City terminates this Agreement on March 1 st (i.e. 6 months into the year), LICENSEE shall be entitled to a refund of fifty percent (50%) of the Annual License Fee. CITY shall have no obligation to reimburse LICENSEE for any improvements to the Licensed Property, under any of the following circumstances:
i In the event that CITY determines in its sole discretion that it requires the Licensed Property for its own uses, which determination shall be made by the City Manager or his or her designee and shall not require proof of or satisfaction of any legal standard of necess ity. Should CITY exercise this option, CITY may terminate this Agreement by providing thirty (30) days written notice to LICENSEE of the intent to terminate this Agreement.
ii CITY may terminate this Agreement at any time for cause, for a breach by LICENSE E of any covenant or term of this Agreement, or a default by LICENSEE of any term or provision of this Agreement, which acts of LICENSEE shall include but not be limited to: (i) The failure by LICENSEE to pay any amount in full when it is due under this Agreement; or (ii) The failure by LICENSEE to perform any obligation under this Agreement. Notification of such termination shall be in writing.
B. LICENSEE may terminate this Agreement at any time for its convenience by providing written notice to Lessor sixty (60) days prior to the date of termination.
6. Hazardous Materials Use and Related Indemnity.
A. Use. LICENSEE shall operate and maintain the Licensed Property in compliance with all, and shall not cause or permit the Licensed Property to be in violation of any federal, state or local environmental, health and/or safety-related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to LICENSEE or the Licensed Property (collectively, “Environmental Laws” and, individually, an “Environmental Law”). LICENSEE shall not cause or permit, or allow any of LICENSEE’s Parties to cause or permit, any Hazardous Materials to be brought upon, stored, used, generated, handled, transported, treated or disposed of on or about the Licensed Property. Any Hazardous Materials on or about the Licensed Property shall be stored, used, generated, handled, transported, treated or disposed of in accordance with all applicable Environmental Laws. As used herein, “Hazardous Materials” means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law based upon, directly or indirectly, its properties or effects.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 5 B. Indemnity. LICENSEE shall indemnify, defend (by counsel acceptable to CITY) and hold harmless the Indemnitees (as defined in Section 14) from and against any and all loss, liability, claim, demand, damage, cost or expense (including without limitation, any fines, penalties, judgments, litigation expenses, attorneys’ fees, and consulting, engineering, and construction fees and expenses) incurred by Indemnitees as a result of (a) LICENSEE’s breach of any prohibition or provision of this Section, or (b) any release of Hazardous Materials onto the Licensed Property and/or any adjacent property, or (c) any contamination of the Licensed Property and/or any adjacent property (i) which occurs due to the use and occupancy of the Licensed Property by LICENSEE or LICENSEE’s Parties, or (ii) which is made worse due to the act or failure to act of LICENSEE or LICENSEE’s Parties. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, except to the extent, but only to the extent, caused by the gross negligence or willful misconduct of the Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement.
C. Remediation. In addition, in the event of any release on or contamination of the Licensed Property and/or any adjacent property, LICENSEE, at its sole expense, shall promptly take all actions necessary to clean up the affected property and to return the affected property to the condition existing prior to such release or contamination, to the satisfaction of CITY and any governmental authorities having jurisdiction thereover.
D. Termination for Breach of Hazardous Materials Obligations. Should LICENSEE not comply fully with the above-stated obligations, CITY may, in its sole discretion, terminate this Agreement by serving five (5) days’ notice of termination upon LICENSEE. Any waiver by CITY of any breach of LICENSEE’s obligation shall not constitute a waiver of the right to terminate this Agreement for any subsequent breach which may occur, or to enforce any other provision of this Agreement. Upon termination, LICENSEE shall restore the Licensed Property as herein provided.
E. Inapplicability. It is understood and agreed that a LICENSEE who does not now, or in the future, generate, handle, transport, treat, store or dispose of Hazardous Materials on the Licensed Property within the meaning of this Section, is not subject to the provisions of Section 6.B.
7. Fees.
A. Annual License Fee.
i LICENSEE shall pay CITY as compensation for this license an Annual License Fee as specified in Item 6 of the Basic License Provisions, as such fee may be adjusted as set forth in paragraphs (ii) and (iii) below . The first Annual License Fee shall be due and payable on August 1, 2023 (“Payment Date”). Each succeeding year after, subsequent payments shall be made on the anniversary of the Payment Date for as long as this Agreement is in effect.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 6 ii Every three (3) years, the Annual License Fee shall be increased by five percent (5%).
B. Late Payment. LICENSEE acknowledges that late payment by LICENSEE of any payment owed to CITY under this Agreement will cause CITY to incur costs not contemplated by this Agreement, the exact amount of such costs being extremely difficult and impracticable to fix. T herefore, if any payment due from LICENSEE is not received by CITY within sixty (60) days of when due, LICENSEE shall pay to CITY an additional sum of ten percent (10%) of the ov erdue payment as a late charge . The Parties agree that this late charge represents a fair and reasonable estimate of the administrative costs that CITY will incur by reason of a late payment by LICENSEE. Acceptance of any late payment charge shall not constitute a waiver from exercising any of the other rights and remedies available to CITY under this Agreement, at law or in equity, including, but not limited to, any interest charges imposed herein.
8. Permits. Without limiting the generality of any other provision hereunder, LICENSEE, at its sole cost and expense, shall obtain and s hall comply with any and all permits which may be required by any law, regulation or ordinance for any activities LICENSEE desires to conduct or have conducted pursuant to this Agreement.
9. Maintenance and Repair . LICENSEE shall, at its own cost and subject to the approval of the City Manager or his or her designee carry out the maintenance responsibilities outlined in Exhibit “B” of this Agreement . Any repair and maintenance work shall be done to the Standards (defined below). LICENSEE shall provide CITY no less than thirty (30) days written notice and shall acquire all necessary approvals from CITY prior to LICENSEE’s commencement of any such repair or maintenance work. If, at any time, LICENSEE shall, in the judgment of CITY, fail to perform properly it s obligations under this Section, CITY may, at its option, perform such work itself as it deems necessary for the safe operation of its property and other uses on the Licensed Property. In such event, LICENSEE agrees to pay, within fifteen (15) days after a bill is rendered therefor, the cost so incurred by CITY. However, failure on the part of CITY to perform the obligations of LICENSEE shall not release LICENSEE from liability hereunder for any loss or damage occasioned thereby.
10. Standards. LICENSEE shall comply with all applicable statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as “Standards”), issued by any federal, state or local governmental body or agency established thereby including without limitation, the United States Department of Transportation, and the California Public Utilities Commission (hereinafter collectively referred to as “Agency”), relating to LICENSEE’s use of the Licensed Property hereunder. In its use of the Licensed Property, LICENSEE shall at all times be in full compliance with all Standards, present or future, set by any Agency, including, but not limited to, Standards concerning air quality, water quality, noise, and Hazardous Materials. In the event LICENSEE fails to be in full compliance with Standards set by any Agency, CITY may, but shall not be obligated to, after giving notice of the failure to LICENSEE, and if LICENSEE, within fifteen (15) days following receipt of such notice (unless such period is extended by CITY), fails to correct such non -compliance, take whatever action it determines in its sole discretion to be DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 7 necessary to protect the Licensed Property. LICENSEE shall reimburse the CITY for all costs (including but not limited to, consulting, engineering, clean -up and d isposal, and legal costs) incurred by the CITY as a result of the LICENSEE’s failure to comply with such Standards, and also such costs incurred by the CITY in abating a violation of such Standards, protecting against a threatened violation of such Standar ds, defending any claim of violation of such Standards in any proceeding before any Agency or court, and paying any fines or penalties imposed for such violations. LICENSEE shall, to the extent permitted by law, assume liability for and shall save and hold harmless the CITY from any claim of a violation of the Standards regardless of the nature thereof or the Agency or person asserting such claim, which results from LICENSEE’s use of the Licensed Property in violation of the Standards, even if such claim a rises in whole or in part from the negligence or alleged negligence of the CITY. LICENSEE, at its cost, shall assume the defense of all such claims as provided for in Section 16 hereof.
11. Tests and Inspections . CITY shall have the right at any time to inspect the Licensed Property so as to monitor compliance with this Agreement. If, in CITY’S sole judgment, any installation on, or use or condition of the Licensed Property may have an adverse effect on the Licensed P roperty (whether or not owned by CITY) or CITY’S operations, CITY shall be permitted to conduct any tests or assessments, including but not limited to environmental assessments, of, on or about the Licensed Property , as it determines to be necessary or useful to evaluate the condition of the Licensed Property.
LICENSEE shall cooperate with CITY in any tests or inspections deemed necessary by CITY. LICENSEE shall pay or reimburse CITY, as appropriate, for all reasonable costs and expenses incurred due to the tests, inspections or any necessary corrective work and inspections thereafter within thirty (30) days of a request for payment.
12. Insurance. LICENSEE, at its sole cost and expense, shall obtain and maintain, and require its contractors and subcontractors to obtain and maintain, in full force and effect insurance as required by CITY in the amounts and coverage specified and issued by insurance companies as described on Exhibit “C”, attached hereto and incorporated herein by this reference. CITY reserves the right, to review and change the amount and type of insurance coverage it requires in connection with this Agreement. Prior to (i) entering the Licensed Property or (ii) performing any work or maintenance, LICENSEE shall furnish CITY with the insurance endorsements and certificates in the form and amounts specified in Exhibit “C”, evidencing the existence, amounts and coverage of the insurance required to be maintained hereunder. In most instances, CITY does not allow self-insurance, however, if LICENSEE can demonstrate assets and retention funds meeting CITY’s self-insurance requirements, CITY may permit LICENSEE to self- insure; provided, however, that the right to self-insure with respect to any coverage required to be maintained hereunder may be granted or revoked by CITY in its sole and absolute discretion. CITY shall not be liable for the payment of any premiums or assessments for insurance required to be maintained by LICENSEE under this Agreement.
13. Subordinate Rights. This Agreement is subject and subordinate to the prior and future rights and obligations of CITY, its successors and assigns, to use its property in the exercise of its powers and in the performance of its duties. Accordingly, there is DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 8 reserved and retained unto CITY, its successors, assigns and permittees, the right to construct, reconstruct, maintain and use existing, and facilities and appurtenances and existing and future transportation, communication, pipeline facility and other facilities and appurtenances in, upon, over, under, across and along the Licensed Property, and in connection therewith, the right to grant and convey to others, rights and interests to the Licensed Property in, on and around the Licensed Property. This Agreement is subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens, claims and other matters of title (hereinafter referred to as “Title Exceptions”) which may affect the Licensed Property now or hereafter, and the words “grant” or “convey” as used herein shall not be construed as a covenant against the existence of any such Title Exceptions.
14. Indemnity.
A. LICENSEE agrees to indemnify and hold harmless City, its employees, officers, agents, and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from LICENSEE’s negligent acts or omissions arising from LICENSEE’s performance of its obligations under this Agreement. LICENSEE’s indemnification obligations do not extend to claims arising out of or pertaining to the sole negligence or willful misconduct of the CITY.
B. CITY agrees to indemnify and hold harmless LICENSEE, its employees, officers, agents, and volunteers from any and all claims, actions, or losses, damages and/or liability resulting from CITY’s negligent acts or omission arising from the CITY’s performance of its obligations under this Agreement. CITY’s indemnification obligations do not extend to claims arising out of or pertaining to the sole negligence or willful misconduct of the LICENSEE.
C. In the event that CITY and/or LICENSEE is found to be comparatively at fault for any claim, action, loss or damage which results from their respective obligations under this Agreement, CITY and LICENSEE shall indemnify the other to the extent of this comparative fault.
15. Assumption of Risk and Waiver. To the maximum extent allowed by law, LICENSEE assumes any and all risk of loss, damage or injury of any kind to any person or property. LICENSEE’s assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement on the Licensed Property, accident or fire or other casualty on the Licensed Property, or electrical discharge, and noise or vibration resulting from CITY’s transit operations on or near the Licensed Property, if applicable. The term “CITY” as used in this Section shall include any other persons or companies employed, retained or engaged by CITY. LICENSEE, on behalf of itself and its Personnel, as a material part of the consideration for this Agreement, hereby waives all claims and demands against CITY for any such loss, damage or injury of LICENSEE and/or its Personnel. In that connection, LICENSEE waives, for itself and its Personnel, the benefit of California Civil Code Section 1542, which provides as follows:
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 9 A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the r elease and that, if known by him or her, would have materiality affected his or her settlement with the debtor or released party.
The provisions of this Section and of Sections 6.B, 14 and 16 shall survive the termination of this Agreement. As used in th is Section, “Personnel” means the LICENSEE, or its officers, directors, affiliates, or anyone directly or indirectly employed by LICENSEE or for whose acts LICENSEE is liable.
16. Defense. Upon written notice from CITY, LICENSEE agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against the Indemnitees by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Agreement for which LICENSEE has an obligation to assume liability for and/or to indemnify or save and hold harmless the Indemnitees. LICENSEE shall pay all the costs incident to such defense, including, but not limited to, attorneys’ fees, investigators’ fees, litigation expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this Section, including, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal.
17. Attorneys’ Fees. In any judicial or arbitration proceeding involving perf ormance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorneys’ fees and costs.
18. Successors and Assigns. All the covenants and provisions of this Agreement shall be binding upon and inure to t he benefit of the successors, legal representatives and assigns of the CITY and LICENSEE to the same extent and effect as the same are binding upon and insure to the benefit of the Parties hereto.
19. Survival of Obligations. All obligations of LICENSEE hereunder not fully performed as of the termination or cessation of this Agreement in any manner shall survive the termination of this Agreement.
20. Assignment. This Agreement and the license granted herein are personal to the LICENSEE. LICENSEE shall not assi gn or transfer (whether voluntary or involuntary) this Agreement in whole or in part, or permit any other person or entity to use the rights or privileges hereby conveyed, without the prior written consent of CITY, which may be withheld in CITY’s sole and absolute discretion. Any attempted act in violation of this Section shall be void and without effect and give CITY the right to immediately terminate this Agreement.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 10 21. Waiver of Covenants or Conditions . The waiver by CITY of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement.
22. Amendment. This Agreement may be amended at any time by the written agreement of CITY and LICENSEE. All amendments to this Agreement shall be binding upon the Parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the Parties hereto.
23. Revocation. If, at any time, LICENSEE shall fail or ref use to comply with or carry out any of the covenants herein contained, CITY may, at its election, immediately revoke and terminate this Agreement unless a longer notice period is specifically provided for elsewhere in this Agreement.
24. Abandonment. Should LICENSEE at any time abandon the Licensed Property, or any part thereof, or fail at any time for a continuous period of six (6) months to use the same for the purposes contemplated by this Agreement, then CITY may terminate this Agreement to the extent of the portion so abandoned or discontinued. In addition to any other rights or remedies, CITY shall immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontinued, without the encumbrance of this Agreement or any license granted herein.
25. Eviction, Abandonment or Sale . In the case of the eviction of LICENSEE by the sale or abandonment by CITY of said premises, CITY shall not be liable to LICENSEE for any damage of any nature whatsoever or to refund any payment made by LICENSEE to CITY hereunder, except the proportionate part of any recurring charge which may have been paid hereunder in advance.
26. Condemnation. In the event all or any portion of the Licensed Property shall be taken or condemned for public use (includin g conveyance by deed in lieu of or in settlement of condemnation proceedings), any commission or damages arising out of such taking or condemnation awarded to LICENSEE are hereby assigned by LICENSEE to CITY.
27. Revocable Licenses and Termination. LICENSEE agrees that notwithstanding the improvements made by LICENSEE to the Licensed Property, or other sums expended by LICENSEE in furtherance of this Agreement, the license granted herein is revocable and may be terminated by CITY in accordance with the terms of this Agreement.
28. Restoration of CITY’s Property, Claims for Costs. Upon the termination, revocation of cessation of this Agreement in any manner provided in this Agreement, LICENSEE, upon demand of CITY and at LICENSEE’s own cost and expense, shall restore the Licensed Property of CITY to the same condition in which they were prior to the entry of this Agreement , reasonable wear and tear excepted. In case LICENSEE shall fail to restore Licensed Property as aforesaid withi n ten (10) days after the effective date of termination, CITY may proceed with such work at the expense of LICENSEE . No DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 11 termination hereof shall release LICENSEE from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the Licensed Property restored as above provided.
29. Notice. Any notice hereunder to be given by CITY to LICENSEE shall be deemed to be properly served on the date it is deposited in the United State s Mail, postage prepaid, addressed to such party at its address set forth in the Basic License Provisions.
Either CITY or LICENSEE may change its address for the receipt of notice by giving written notice thereof to the other party of such change. Notices shall be effective on the date delivered to custody of the U.S. Postal Service.
30. Nondiscrimination. LICENSEE certifies and agrees that all persons employed thereby and/or the affiliates, subsidiaries, or holding companies thereof and any contractors reta ined thereby with respect to the Licensed Property are and shall be treated equally without regard to or because of race, religion, ancestry, national origin, or sex, and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to the Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act; and the California Fair Employment Practices Act.
31. Taxes. LICENSEE shall be liable for and agrees to pay promptly and prior to delinquency, any tax or assessment, including but not limited to any possessory interest tax, levied by any governmental authority against the Licensed Property and/or any personal property, fixtures or equipment of LICENSEE used in connection therewith.
32. Liens. LICENSEE sha ll not suffer or permit to be filed or enforced against the Licensed Property, or any part thereof, any mechanics’, materialmen’s, contractors’, or subcontractors’ liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or work, or out of any other claim or demand of any kind.
33. Counterparts; Facsimile Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Facsimile signatures shall be considered original signatures.
34. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full for ce and effect and shall in no way be affected, impaired or invalidated thereby.
35. Captions. The Captions included in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or any provision hereof, or in any way affect the interpretation of this Agreement.
36. Time of Essence. Time is of the essence in this Agreement.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 12 37. No Recording. LICENSEE shall not record or permit to be recorded in the official records of the county where the Licensed Property is located any memorandum of this Agreement or any other document giving notice of the existence of this Agreement or the license granted hereby.
38. Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement between the CITY and LICENSEE with respect to the subject matter hereof and supersede all prior verbal or written agreements and understandings between the Parties with respect to the items set forth herein.
39. Governing Law. This Agreement shall be governed by the laws of the State of California. Venue shall be in San Bernardino County.
40. Electronic Signature. Each Party acknowledges and agrees that this Agreement may be executed by electronic or digital signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature
[SIGNATURES ON FOLLOWING PAGE]
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 13 SIGNATURE PAGE FOR LICENSE AGREEMENT
BETWEEN THE CITY OF SAN BERNARDINO
AND CALIFORNIA STATE UNIVERSITY, SAN BERNARDINO
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
CITY
CITY OF SAN BERNARDINO
APPROVED BY:
Charles A. Montoya
City Manager
ATTESTED BY:
Genoveva Rocha, CMC
City Clerk
APPROVED AS TO FORM:
Best Best & Krieger LLP
City Attorney
LICENSEE
CALIFORNIA STATE UNIVERSITY,
SAN BERNARDINO
Signature
Name
Title
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C JC Cortez
Lead Procurement & Contract Specialist
14 EXHIBIT A
DESCRIPTION OF LICENSED PROPERTY
Fiscalini Field Description for Contractual Purposes:
Location: San Bernardino, California, situated within Perris Hill Park.
Facilities:
1. Field Dimensions: Standard baseball field dimensions with a professional-grade infield and well-maintained outfield.
2. Seating Capacity: Accommodates several thousand spectators. The seating area comprises metal and wooden bleachers.
3. Dugouts: Two dugouts, one for the home team and one for the visiting team, equipped with benches and storage facilities.
4. Press Box: An elevated press box equipped with communication facilities and space for media personnel.
5. Lighting: Adequate lighting fixtures for evening and nighttime events.
6. Concession Stands: Available for food and beverage services.
7. Restrooms: Male, female, and accessible restroom facilities.
8. Parking: Adjacent parking facilities with capacity for a specified number of vehicles (exact number to be provided based on current data).
9. Accessibility: The stadium is accessible for differently-abled individuals, with ramps and other necessary facilities.
10. Safety: Equipped with emergency exits, fire extinguishers, and other safety measures compliant with local regulations.
Usage: Suitable for hosting baseball games, including high school, college, and semi- professional matches. Additionally, the field can be used for community events, concerts, and other gatherings, subject to approval and any necessary modifications.
Maintenance: The field and its facilities are regularly maintained to ensure safety and functionality. Any party renting or using the facility is expected to return it in the condition it was provided, barring regular wear and tear.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 15 EXHIBIT B
LICENSEE USE/MAINTENANCE OBLIGATIONS
Unless otherwise stated below, all terms and conditions of maintenance and use set forth below are to be followed by LICENSEE authorized by the CITY to utilize and/or maintain Fiscalini Field.
1. Play not to exceed two games a day and 5 games per week unless prior authorization has been secured by CITY management.
2. Field shall be mowed a minimum of once per week by a qualified CITY maintenance staff with a mower designed for athletic field mowing at a height that is associated with good athletic field maintenance- 1 inch suggested.
3. LICENSEE shall furnish its own equipment (rake, drag, tamp, hose coupler, broom, small utility vehicle).
4. LICENSEE shall ensure that field and bullpens are maintained after every use by LICENSEE.
5. LICENSEE shall ensure that the cut outs, baselines, and home plate areas must be raked and NOT dragged.
6. General maintenance vehicles used by LICENSEE must remain on the outfield warning track.
7. Except for a small utility vehicle to “drag” with, LICENSEE shall not permit maintenance vehicles in the infield.
8. LICENSEE shall not allow vehicles to be driven in front of the dugouts, across the plate, or in the baselines.
9. When dragging the infield , LICENSEE shall ensure the drag should remain one foot from the edge of the grass.
10. LICENSEE shall ensure that the pitching mound is maintained and tarped after every use.
11. LICENSEE shall ensure that dugout trash should be picked -up and dugouts should be swept after each use.
12. No materials should be added to the field by LICENSEE without CITY management and/or Maintenance Division Manager approval ( i.e. drying agents, field conditioners etc.
13. LICENSEE shall have a designated maintenance worker to receive training from the CITY approved, athletic field maintenance personnel.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 16 14. Any destruction, vandalism, theft shall be reported immediately to the CITY and fixed by the LICENSEE immediately.
15. Any general “wear and tear” irrigation issues should be reported to the CITY immediately for prompt repair. Irrigation damage resulting from LICENSEE neglect shall be reported to the CITY immediately and repaired by the LICENSEE within 24 hours.
16. LICENSEE shall provide a detailed use schedule to the CITY for approval prior to use.
17. LICENSEE will be required to refrain from field use during scheduled annual field maintenance and renovation.
18. National tournaments of LICENSEE can exceed the number of games limitations with CITY approval, provided that said tournaments must have national sports tourism benefit and implications.
19. Annual renovation of the field will occur November 1 – December 1 of each year.
During this time, no play by LICENSEE shall occur on the infield or outfield.
20. Routine CITY maintenanc e of field will occur Wednesday of each week; during such time no play by LICENSEE shall occur on the infield or outfield.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 17 EXHIBIT C
INSURANCE REQUIREMENTS
LICENSEE shall obtain, and shall require any consultant or contractor entering the Licensed Property on its behalf to obtain insurance of the types and in the amounts described below and satisfactory to the CITY.
A. Commercial General Liability Insurance . LICENSEE shall maintain occurrence version commercial general liability insurance or equivalent form with a combined single limit of not less tha n $2,000,000 per occurrence, with a general aggregate limit no less than $4,000,000. Such insurance shall include coverage for, but not be limited to: (i) bodily injury and property damage; (ii) personal injury and advertising injury; (iii) fire legal liability; and (iv) products and completed operations. Such insurance policy or policy endorsement shall:
1. Include the CITY, its officials, officers, employees, agents, and consultants as additional insureds with respect to the Licensed Property and LICENSEE’s installation, construction, operation, maintenance, repair, reconstruction, al teration, removal or any other work that LICENSEE undertakes with respect to the Agreement;
2. Not contain special limitations on the scope of coverage or the protection afforded to CITY, its officials, officers, employees, agents and consultants as additional insureds;
3. Be primary with respect to any insurance or self-insurance programs covering CITY, its officials, officers, employees, agents and consultants;
4. Contain standard separation of insured provisions; and
5. Contain a waiver of subrogation that waives any right the insurer has against CITY for any claims or suits.
C. Automobile Liability . LICENSEE shall acquire and maintain during the period of the Agreement, automobile liability with a combined single limit of $1,000,000.
E. Workers' Compensation Insurance . LICENSEE shall maintain workers' compensation insurance with statutory limits and employers' liability insurance with limits of not less than $1,000,000 each accident.
F. Privacy/Network Security (Cyber) . LICENSEE shall maintain privacy/network security insurance, in a form and with insurance companies acceptable to the City, for: (1) privacy breaches, (2) system breaches, (3) denial or loss of service, and (4) the introduction, implantation or spread of malicious software code, in a form and with insurance companies acceptable to CITY with limits of not less than $1,000,000 per occurrence and aggregate.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C 18 G. Aviation and/or Drone Liability. If the proposed use of the Licensed Property will involve drones, LICENSEE shall maintain Aviation and/or Drone Liability insurance for bodily injury and property damage, in a form and with insurance companies acceptable to the CITY, with $1,000,000 per occurrence limit.
H. Certificates of Insurance. LICENSEE shall, prior to (i) entering the Licensed Property or (ii) performing any installation, construction, operation, maintenance, repair, reconstruction, alteration, removal or any other work that L ICENSEE undertakes with respect to the Agreement, furnish CITY with properly executed certificates of insurance and, if requested by CITY, certified copies of endorsements and policies, which clearly evidence all insurance required under this Agreement and provide that such insurance shall not be canceled, allowed to expire or be materially reduced in coverage, except on thirty (30) days’ p rior written notice to CITY. CITY shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Agreement.
I. Coverage Maintenance. LICENSEE shall replace certificates, policies and endorsements for any insurance expiring prior to the termination of this Agreement and shall not allow any lapse in coverage. Further, LICENSEE shall maintain such insurance from the execution of this Agreement until the Licensed Property fully restored, except as otherwise provided in this Agreement.
J. Licensed Insurer. LICENSEE shall place such insurance with insurers having A.M. Best Company ratings of no less than A:VIII and licensed to do business in California.
DocuSign Envelope ID: 2F9D8C1D-97BC-40BC-ACDC-FC5FC119DD4C