RECREATION SPORTS PARTNERSHIP AGREEMENT FOR
ELITE SOCCER LEAGUE
This PLATINUM PARTNERSHIP AGREEMENT is entered into this ____ day of _______________, 2023 (the “Effective Date”), by and between the CITY OF SAN CLEMENTE, a municipal corporation (“City”) and ELITE SOCCER LEAGUE, a youth sports organization incorporated in California (“ESL”) for a period of one (1) year starting on the Effective Date.
R E C I T A L S:
WHEREAS The City of San Clemente owns and operates athletic fields throughout the community. A permit is required for reservations, lighted evening use, and use of the sport fields by all clubs and sports organizations; and WHEREAS ESL is a private non-profit organization that has been involved in recreational soccer activities in San Clemente for the past 20 years. ESL serves over 1,100 children, aged four to sixteen years old. The ESL soccer program (the “Program”) is established, showing league structure for game rules and field policy, a governing board to regulate program standards, and proven history of providing programs for San Clemente residents; and WHEREAS ESL desires to enter into this Gold Partnership Agreement to establish a standard and schedule of athletic field usage to better serve its membership; and WHEREAS ESL uses Vista Hermosa Sports Park, Talega, Jim Johnson Memorial Sports, San Gorgonio, Forster Ranch, and Talega Parks and desires to enter into this Gold Partnership Agreement to establish a standard and schedule of athletic field usage to better serve its membership.
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, the parties agree as follows:
C O V E N A N T S:
Based on the foregoing Recitals and for good and valuable consideration, the receipt and sufficiency of which is acknowledged by the parties, City and ESL hereby agree as follows:
ESL Program Requirements
As a material inducement to City’s entering into this Agreement with ESL, ESL agrees and covenants that, during the term of this Agreement, ESL shall operate its Program in compliance with the following requirements, and agrees that any failure to strictly comply with any of the following requirements is a material breach of this Agreement:
ESL is and shall remain currently registered and active with the State of California as a not-for-profit community organization under Section 501(c)(3) or (c)(4) of the Internal Revenue Code.
ESL is not aware that it is the subject of any formal investigation by any government agency of the City, the County of Orange, the State of California, or the United States Government. ESL shall immediately notify the City in writing if it becomes aware that ESL is the subject of any formal investigation by a government agency.
ESL shall carry Commercial General Liability insurance with limits no less than $2,000,000 per occurrence, and $4,000,000 annual aggregate, with an additional insured endorsement in favor of the City, and approved by the City’s risk manager. ESL’s liability insurance shall be primary insurance without rights of subrogation. Each such policy of insurance shall comply with section 17 below.
ESL shall remain able to demonstrate financial hardship if the discounts provided for by this Agreement are denied and ESL is required to pay regular rates for use of City amenities, fields, pools, and/or facilities.
ESL has and shall maintain an open enrollment policy regardless of the participant’s skill level. For purposes of this Agreement, “Open Enrollment Policy” shall mean no child shall be denied enrollment based on skill level.
ESL shall maintain and enforce a “minimum play rule” for all levels of programming which requires that each person enrolled in the Program shall play 50% of the time for each game.
ESL shall provide financial scholarships covering at least 10% of the participants enrolled for 50-100% of their registration fees to those participants that are in “financial need.” For purposes of this Agreement, “financial need” shall mean those families that can prove a financial and/or special hardship. The scholarship is given to the child to provide an opportunity to enroll in league activities. ESL shall operate on the philosophy that no child will be denied a chance to play soccer due to financial hardship. ESL will be required to submit to City their financial reports outlining their scholarship distribution at the conclusion of the program registration periods.
ESL shall prohibit discrimination on the basis of race, religion, national origin, ethnicity, sexual orientation, or gender. To promote a positive drug-free and child-friendly environment at City facilities, ESL shall enforce a “zero tolerance” policy. Any ESL officer, employee, agent, volunteer, or participant who is found to have abused alcohol, controlled substances (which have not been prescribed for the member), cannabis, or tobacco shall be prohibited from participating in ESL activities.
ESL supplies and shall continue to supply participant rosters annually to City. ESL membership shall be comprised of no less than 90% San Clemente residents.
ESL shall maintain all documentation necessary to demonstrate compliance with all of the above. City shall be permitted to inspect and make and retain copies of any documentation necessary to verify Program compliance with this Article 1.
ESL Representatives To City
ESL shall designate one official representative who shall be City’s primary contact and who shall coordinate the program, field space, and overall agreement with the City. The ESL representative shall have the authority to make decisions for ESL, sign applications with City on behalf of ESL for field use, approve billing, understand the field operations regarding both scheduling and maintenance, assist with ESL planning of field allocations, and be responsible for resolving conflicts if/when they arise.
ESL is responsible for notifying City in writing within thirty (30) days of any change in its designated ESL representative referenced in Section 2.1.
The City Beaches, Parks and Recreation Department will be the City liaison coordinating all City operations. City responsibilities are delegated to the Recreation Division, with staff coordination from the assigned Recreation Coordinator or Supervisor. This representative(s) is responsible for: field allocations, applications, billing, insurance, lights, and scheduling conflicts that may arise during the course of this Agreement.
After-hours maintenance concerns related to field damage, vandalism, or field and park-related emergencies should be directed to the Public Works Maintenance Services Division at (949) 361-8317.
Athletic Field Rental Rates
All field assignments shall be made by City in its sole and absolute discretion. ESL shall pay a Field Rental Fee to the City within 14 business days after receipt of Field Use Permits for the upcoming season or month.
Field Rental Fee. The fees noted below shall remain in effect during the entire term of this Agreement. The following use fees for non-profit youth sports organizations are collected by the Recreation Division. Fees are subject to change based on City Council resolution. Organizations will be notified of any changes prior to any public meeting. Fees remain in effect and apply to ESL Platinum Partnership:
Park/Rental Type
Hourly/Daily Fee
Discount
Partner Fee
Neighborhood
$40/hour
70% Discount
$12/hour
Community
$50/hour
70% Discount
$15/hour
Sport
$60/hour
70% Discount
$18/hour
Tournaments
See hourly rates above
25% Discount
---
Camps/Clinics
See hourly rates above
25% Discount
---
Light Fee
$15/hour
0%
$15/hour
Field Storage
During the term of this Agreement, ESL has not been allocated a storage area. Any requests for storage must be submitted in writing to the Recreation Division for approval.
Concessions
During the term of this Agreement, ESL has not been allocated concession rights. Any requests for concessions must be submitted in writing to the Recreation Division for approval.
Use of Styrofoam products is prohibited. The City of San Clemente passed Resolution No. 04-27 on April 20, 2004, prohibiting the use of food service items comprised of expandable polystyrene, commonly referred to by the trade name “Styrofoam.” Rental agreements for the usage of any City-owned property or facility shall require the renter to assume the responsibility for preventing the utilization and/or distribution of expandable polystyrene food service products, commonly referred to by the trade name “Styrofoam”, by any attendee or vendor (caterer) utilizing the City property or facility during the term of the rental agreement. Failure to abide by this resolution will result in the automatic denial of future field rentals.
Field Scheduling
Although community programs and community contract classes have priority, the City offers Platinum Partners the opportunity to schedule field space in two increments for the year. The scheduling of “blocks” of time is coordinated by the Recreation Division. Fields booked for ESL are to be utilized solely for ESL programs. ESL may not sublet field space to any non-ESL or other organization. There is no exclusive use of any fields; therefore, the City has a right to rent any field to other organizations.
To assist the City in determining a Master Field Calendar for each allocation period, ESL must complete the necessary application requesting needed field space by the first week of November for the January 1 through June 30 allocation period and by the first week of April for the July 1 through December 31 allocation period.
ESL representatives must attend the field allocation meeting bi-annually to coordinate other group needs in the community.
ESL shall request only needed field space, and not overbook the fields. The Recreation Division will assist ESL in determining necessary field space by reviewing the number of participants in ESL and the length of primary season games.
ESL will be required to submit all practice and game schedules to the City for review prior to Opening Ceremonies.
ESL will be required to relinquish all field space that is not needed to the City prior to Opening Ceremonies.
If once regular season league play begins and City determines that not all field space is needed by ESL, the City will request that ESL relinquish reserved time for other rentals. It is the responsibility of ESL to coordinate all field schedules with its participants and coaches.
It is the responsibility of ESL to coordinate all block schedules with their participants. This includes scheduling fields and monitoring the fields for use. Fields that are consistently left vacant within block permit time will be reviewed by the Recreation Division for reassignment.
ESL will be required to submit practice and games schedules to the Recreation Division for review one week prior to Opening Day Ceremonies.
Field Use and Parking
Sports fields without lights are closed at dusk, and no later than 9 p.m. Lighted sports fields close at 10 p.m. ESL is required to vacate all fields prior to closing time.
All parks close at 10 p.m. Should park gates be locked for the evening, vehicles remaining in the parking lot(s) will be under the authority of the Orange County Sheriff’s Department and subject to ticketing and impound.
Cancellations and changes to approved rentals. A change fee of $25.00 will be added for any change in time or space requested after a rental permit has been approved and billed out.
Nonuse of fields. ESL will be charged the full hourly rate (non-discounted) for ESL-affiliated groups without permits or usage without approval.
Edits and cancelations of reserved fields must be made a minimum of 12 hours prior to the start of the rental time listed on the permit if the fields will be unutilized. These change requests will be used to revise the monthly billing, ESL will be issued a refund for the released fields. Change requests to reduce field usage may not be submitted after the rental date.
All changes in permitted field space must be submitted in writing the Recreation Coordinator or Supervisor overseeing the field use permit. Online requests may be submitted electronically through www.san-clemente.org/fieldchange City parks with athletic fields have limited parking. Some of these parks also have restricted parking on the street (Talega, Liberty, and Tierra Grande). ESL must communicate these parking limitations to their participants. City is not responsible for providing parking to ESL participants. ESL must manage the use of space by coordinating its game and practice schedules according to the availability of parking at each site.
In an effort to reduce the impact on parking and congestion in these parks, the City will limit the number of rental permits on weekends during league play and summer months.
When scheduled at a neighborhood or sommunity park field, ESL must incorporate a 10-15 minute buffer in game schedules to reduce overlap of game times and allow for adequate time between games for players leaving the games to vacate parking spaces for those coming in.
ESL has a duty to inspect and notify the City of any safety hazards at facilities and fields.
Sport Light Use
ESL shall be charged a separate Light Use fee from the hourly Field Use Fee or flat rate Administrative Fee. The Light Use fee varies by ball field and will be billed according to use. Discounts do not apply to light fees.
Key Operated Lights: Youth Sports Organizations that have reserved and paid for lighted sports fields will be granted a key to operate the field lights. Keys will be checked out to ESL by the City Recreation Division staff. Duplication of keys is not permitted. Representatives must note the rules and operation of the lights. ESL is required to keep custody and control over keys and assignment of keys.
Computer Operated Lights: Once a light schedule is determined by the user and is approved by the Recreation Division by permit, the Recreation Division will code the light towers by scheduling with MUSCO. Lights are automatically turned on and off by block time and are not permitted later than the closing time.
ESL must designate field representatives to monitor the field use in the evening to ensure that the fields are not vacant with lights on. ESL shall shut the lights off if /when they plan to leave the park in advance of the time issued. The City will issue a toll-free phone number to contact MUSCO Lighting and a password that allows ESL direct contact with the lighting company. Recreation Staff will monitor the MUSCO statements for changes made by the league and adjust the billing.
Contributions to Field Maintenance
As a Partner to the City, ESL shall assist with the stewardship and maintenance of sports fields.
ESL shall obtain prior written consent from the City to make any alterations, additions, or improvements to City fields including routine field maintenance and preparations which include mowing, picking weeds, raking, and/or chalking. ESL understands that any other such alterations, additions, or improvements must comply with all state and local standards.
Supplies and Equipment Contribution
ESL will provide for their own field equipment, and other supplies as necessary as well as be responsible for field preparation as assigned below.
ESL will be responsible for lining fields for game play as necessary for their leagues.
ESL may store specialized field equipment and game supplies in available storage shed as per agreement. ESL may not sublet the storage area to other groups.
Field maintenance equipment left on City fields for the duration of the season will be the responsibility of ESL. Equipment found in disrepair is the responsibility of the user group to remove in a timely manner. Organizations found in contempt of this may forfeit their right to store equipment on fields or be charged for the costs associated with removal and disposal.
Inclement Weather Field Procedures
When fields must be closed due to rain or other inclement weather, saturated field conditions due to irrigation problems, any damage due to vandalism, or other conditions needing immediate attention, the Parks Maintenance Division will determine the closure term and begin procedures as follows.
City will determine the appropriate amount of days for the field to remain closed to the extent possible by utilizing weather reports and daily on-site field inspections. The City shall post closure signs on the fields, accordingly.
Field closures will be listed on the City’s official MUDLINE which can be accessed at the City’s website. Each organization is responsible for reviewing the MUDLINE, the City will not contact field users individually regarding closures. The MUDLINE is updated when fields are closed by 1 p.m. on weekdays and by 8 a.m. on weekends. When a field is closed, it is closed for the remainder of the day.
ESL shall ensure that their league coaches and participants stay off all closed fields.
ESL agrees to reimburse the City for any maintenance costs directly attributed to damage or misuse of athletic fields by ESL participants or during their use by ESL, including unauthorized alteration of a City park site.
Vehicle Access
Vehicles are not permitted on City fields. ESL agrees and acknowledges that volunteer coaches and other program participants will not drive vehicles onto the fields. This includes vehicles driven by coaches to unload game equipment or supplies for the program.
Field and Park Clean Up
ESL shall clean up fields and associated park areas in the proximity of the field after each use by ESL. This includes litter left behind from fans in the bleachers, dugouts, or snack concession stand areas. The City will provide adequate trash containers. ESL shall prevent all materials or water related to clean-up activities after the event from entering the storm drain system (i.e. street gutters or catch basins).
Crowd Control
It is the responsibility of ESL to keep registered participants and their fans from engaging in un-sportsmanlike conduct, such as fighting, or rude and abusive verbal confrontations. If field representatives or game officials of the league cannot control the situation, ESL should contact Orange County Sheriff’s Department for assistance.
Tournaments, Camps/Clinics, Special Events, and Opening Day ESL may apply to organize other programs in conjunction with the league, such as tournaments, camps/clinics, special events, and opening day ceremonies (“Program Events”). ESL shall give notice of all Program Events to the Beaches, Parks, and Recreation Department by way of application thirty (30) days in advance of the rental. In reviewing Program Event requests, City shall consider the potential impacts on the neighborhood and park amenities. The Recreation Division will review and coordinate the appropriate permits and services it deems necessary for any Program Events, such as planning for additional janitorial in restrooms, overflow parking, and sound permits. Please note the rules regarding tournaments, special programs, and events which are outlined in the Tournament Application and Policy Guidelines. In some instances, the City may require a Special Event Permit application to be submitted. The City representative to ESL will communicate this process to the organization.
ESL will receive the Platinum Partnership discount of 90% for Opening and Closing Day Ceremonies.
ESL will receive a 25% discount for Tournaments and Camps/Clinics.
ESL must submit a field request and meet with City staff at least thirty (30) days prior to the Program Event date and complete an Orientation Checklist.
ESL is encouraged to participate in a recycling program outlined in the Tournament Application and Policy Guidelines.
ESL shall prohibit the consumption of alcoholic beverages at all Program Events.
Amplified sound is subject to enforcement as per the City of San Clemente Noise Ordinance. Sound Permits are required for all amplified sounds, including but not limited to PA systems and DJs and as well as for any live entertainment such as bands that include amplification for the instruments, drums, horns, etc. Applications are reviewed by the City’s Beaches, Parks, and Recreation Department.
Bounce houses or similar inflatable features are not permitted on City Parks unless approved in advance with appropriate liability insurance naming the City of San Clemente as additionally insured and meeting all requirements of section 17 below.
Per (Orange County Fire Authority (“OCFA”) Guideline F-05) an OCFA permit is required to erect or operate a tent or air-supported temporary membrane structure having an area in excess of 200 square feet, or a canopy in excess of 400 square feet, except for structures used exclusively for camping. (UFC 105.8t.1). The regulations of the State Fire Marshall for large and small tents, awnings and other fabric enclosures shall also apply. (UFC 320).
League Promotions
Printed Materials: ESL will be responsible for all printed promotional materials for its leagues and tournaments. The City shall not copy flyers, posters, registration packets, or any other printed materials. ESL is encouraged to use the designated City brochure racks located at the Community Center and the San Clemente Aquatics Center located in the Vista Hermosa Sports Park. Flyers may not be left on parked vehicles at any City Park or facility.
Magazine/Website Space: The City will include contact information for ESL once each quarter in the City’s Recreation Magazine and on the City Website in the youth sports section. ESL is responsible for submitting accurate information to the City prior to the publishing schedule.
Overhead Banner Reservation: ESL may seek to participate in the City’s overhead banner program in the same manner as any other Community Partner. Regular banner fees apply for the banner hanging. Space in the calendar is based on date availability in conjunction with other city programs and partners. Applications are available in November of each calendar year and processed by January.
Banners on Field Fences and Park Areas: ESL shall not use City parks or facilities to hang banners on the fences or buildings except as provided for herein. During games, Program Events, and registration days, ESL may temporarily hang banners on the ball field fences provided such banners are removed when vacating the field on the same date. Exceptions may be made for seasonal banners on hub fields that are not regularly used by any other organization in the City’s sole and absolute discretion. Any such exceptions shall be negotiated and pre-approved by the Recreation Division prior to placing banners.
Indemnification and Insurance
To the fullest extent permitted by law (including, without limitation, California Civil Code Sections 2782 and 2782.6), ESL shall defend (with legal counsel reasonably acceptable to City), indemnify, and hold free and harmless City and City’s agents, officers, and employees, (collectively, the “Indemnitees”) from and against any and all claims, loss, cost, damage, injury (including, without limitation, injury to or death of any ESL participants, invitees, officers, agents, employees, representatives, or subcontractors of ESL [collectively, the “ESL Entities”]), expense and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, attorney’s fees, litigation expenses and fees of expert contractors or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the negligence, recklessness, or willful misconduct of ESL’s use of the City facilities including but not limited to the San Clemente fields, by any of the ESL entities, anyone directly or indirectly employed by any of them, or anyone that they control or invite to the premises (collectively, the “Liabilities”). Such obligation to defend, hold harmless, and indemnify any Indemnitee shall not apply to the extent that such Liabilities are caused by the sole and active negligence or willful misconduct of such Indemnitee.
Prior to the City’s execution of this Agreement, and as a condition to the effectiveness hereof, ESL shall submit certificates and endorsements to City indicating compliance with the following minimum insurance requirements, and ESL shall maintain such insurance in effect during the entire term of this Agreement: Commercial General Liability, personal injury and property damage liability, contractual liability, independent contractor’s liability, and with minimum combined liability limits of Two Million Dollars ($2,000,000) per occurrence for all covered losses, and Four Million Dollars ($4,000,000) in the aggregate. Any deductible or self-insured retention in excess of Five Thousand Dollars ($5,000) shall be declared to the City and requires the prior approval of the City’s Risk Manager. Each such policy of insurance shall:
be issued by companies that hold a current policy holder’s alphabetic and financial size category rating of not less than A-VII, according to the current Best’s Key Rating Guide or a company of equal financial stability that is approved by City’s Risk Manager for all coverage’s except surety; name and list as additional insured City and City’s officers, employees, and agents. An endorsement shall accompany the insurance certificate naming such additional insured. Additional Insured Endorsement is subject to approval by the city’s risk manager, at their sole discretion; specify it acts as primary insurance and that no insurance held or owned by City shall be called upon to cover a loss under the said policy; contain a clause substantially in the following words: “it is hereby understood and agreed that this policy may not be canceled or materially changed except upon thirty (30) days prior written notice to City of such cancellation or material change as evidenced by a return receipt for a registered letter;” cover the operations of ESL pursuant to the terms of this Agreement; and be written on an occurrence and not a claims-made basis.
Original documents sent to:
City of San Clemente
Risk Management Office
910 Calle Negocio, San Clemente, CA 92673
One additional copy sent to:
Beaches, Parks and Recreation Department
100 Calle Seville, San Clemente, CA 92672
Violation Warning Procedure and Disciplinary Policy
Purpose: The purpose of this policy is to implement a systematic method of enforcing the Municipal Code and Field Rules, Use and Allocation Policy.
Policy: City reserves the right to cancel or suspend any and all permits issued to ESL as well as any other use of City facilities as provided for under this Agreement for meets, practices, and other usages based upon ESL’s violation of the City Municipal Code or this Agreement.
Commitment: ESL’s Board of Directors is required to notify their volunteer coaches, parents, and participants about the rules and regulations set forth in the Ball Field and Park Rental Policies, municipal codes, and guidelines within this Agreement. The Recreation Division will work closely with ESL to address concerns and enhance communications between staff, field users, and the community. It is the responsibility of ESL to notify City of any concerns.
Outcome: ESL shall regularly communicate with ESL members to educate participants, coaches, and parents to become increasingly more responsible working within the Municipal Code and field rules, and user agreements, especially where traffic, noise, parking, trash, and issues are concerned. By enhancing communication all parties involved will benefit.
Violations: City shall document violations resulting from ESL’s failure to follow the terms of this Agreement, the Municipal Code, and City Department policies and procedures.
Notification: City staff will contact the ESL representative to discuss any noticed violation. City shall e-mail ESL’s representative, with a copy to the President, and will follow up on the telephone conversation confirming the discussion and details of the incident or violation.
Proposed Resolution and Timeline: ESL’s representatives will work with City staff to propose a resolution and define the timeline in which the issue will be resolved. This information will be confirmed in writing to both the ESL’s representative and President. If ESL fails to take the necessary actions to resolve the issue as agreed upon between the parties, City may resolve the issue and charge ESL for any manpower and/or equipment used to resolve the issue. ESL shall bear all costs and expenses City deems necessary to completely resolve the issue.
Warning Issued: If the issue is not resolved by the agreed-upon date, City shall send a written warning to ESL.
First Warning: The First Warning letter will be sent upon ESL’s first failure to resolve an issue resulting from a direct violation of this Agreement, the Municipal Code, or park operating policy or rule. A letter will be written to ESL’s President and representative documenting the violation and will be placed in ESL’s file. A report and/or pictures of the violation will be included for reference. The matter may be appealed by ESL to the Beaches, Parks and Recreation Department Director.
Second Warning: A Second Warning is issued after a second documented violation occurs within one year (365 days) from the First Warning. City will send ESL a letter notifying ESL that a City staff member will be assigned to monitor ESL activities due to the violation. ESL will be billed for the assigned hours of said staff member at the staff member’s appropriate hourly rate. The staff member will act as a City representative on duty to monitor activity at the fields and to report further violations to City. This may be appealed to the Beaches, Parks and Recreation Department Director.
Third Warning: A third warning is issued after a third documented violation occurs within one year (365 days) from first violation. Upon issuance of a Third Warning City shall review this Agreement. The Agreement is subject to termination upon such review. Any termination may be appealed to the Beaches, Parks and Recreation Department Director and ultimately appealed to the Beaches, Parks and Recreation Commission and/or City Council.
Termination: City may terminate this Agreement without cause by providing thirty (30) days notice in writing.
San Clemente Municipal Code: Nothing in this Agreement shall limit the City’s authority to enforce the San Clemente Municipal Code or otherwise take legal action under State law.
Term and Cooperation
The term of this agreement shall be one year from the Effective Date the Beaches, Parks & Recreation Director executes this Agreement and will continue until canceled under the provisions of Section 18.9.
ESL shall adhere to all the policies and procedures of City and cooperate with the Department and City staff to ensure that the purpose of this Agreement is met. ESL shall not discriminate against those in its employ, volunteers, or participants on account of race, religion, national origin, ethnicity, sexual orientation, or gender (except where gender is a bona fide issue for the sports program).
Miscellaneous
Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties with respect to the subject matter set forth herein, and there are no oral or written representations, understandings or ancillary covenants, undertakings, or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, then this Agreement shall terminate in its entirety, unless the parties otherwise agree in writing, which agreement shall not be unreasonably withheld.
Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party or in favor of City shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
Singular and Plural. As used herein, the singular of any word includes the plural.
Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
Waiver. Failure of a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party's control (including the party's employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party's reasonable control. If any such events shall occur, the term of this Agreement and the time for performance shall be extended for the duration of each such event, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.
Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
Litigation. Any action at law or in equity arising under this Agreement or brought by any party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of Orange, State of California, or such other appropriate court in said county, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court. Service of process on City shall be made in accordance with California law. Service of process shall be made in any manner permitted by California law and shall be effective whether served inside or outside California. In the event of any action between the Parties seeking enforcement of any of the terms and conditions to this Agreement, the prevailing party in such action shall be awarded, in addition to such relief to which such party is entitled under this Agreement, its reasonable litigation costs and expenses, including without limitation its expert witness fees and reasonable attorney’s fees.
Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of both parties. The parties shall cooperate in good faith with respect to any amendment proposed in order to clarify the intent and application of this Agreement, and shall treat any such proposal on its own merits, and not as a basis for the introduction of unrelated matters. Minor, non-material modifications may be approved by the City Manager upon the recommendation of the Community Development Director and approval of the City Attorney.
Corporate Authority. The person(s) executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement such party is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other agreement to which such party is bound.
Notices. All notices under this Agreement shall be effective upon personal delivery, via facsimile so long as the sender receives confirmation of successful transmission from the sending machine, or three (3) business days after deposit in the United States mail, registered, certified, postage fully prepaid and addressed to the respective parties as set forth below or as to such other address as the parties may from time to time designate in writing:
If to City:
City of San Clemente
100 N. Calle Seville
San Clemente, CA 92672
Attention: Beaches, Parks & Recreation Director
With a copy to:
Best Best & Krieger
18101 Von Karman, Suite 1000
Irvine, CA 92612
Attn: Scott Smith, City Attorney
If to ESL:
SAN CLEMENTE GIRLS SOFTBALL
P.O. Box 4586
San Clemente, CA 92674
Attn: President
With a copy to:
Attention:
[End – signature page follows]
IN WITNESS WHEREOF, City and ESL have caused this Agreement to be executed on their behalf by their respective officers or agents herein duly authorized as of the date first written above. “CITY”
CITY OF SAN CLEMENTE,
a municipal corporation
By:
Its:
ATTEST:
City Clerk of the City of
San Clemente, California
APPROVED AS TO FORM:
Best Best & Krieger LLP
Scott Smith, City Attorney
“ESL”
ELITE SOCCER LEAGUE,
a youth sports organization
By:
Its:
-1-
55452.01600\29014959.2
Recreation 100 North Seville San Clemente CA 92672
55452.01600\29014959.2
ATTACHMENT 4