Loading...
HomeMy WebLinkAboutPURE GAME (2)INSURANCE NOT ON FILE WORK MAY NOT PROCEED CLERK OF COUNCIL DATE: N-2023-102 MAY 0 3 2023 FACILITY USE AGREEMENT WITH PURE GAME FOR USE OF THE COMMUNITY SOCCER PITCH AT CAMPESINO PARK ( USAL%) THIS FACILITY USE AGREEMENT is made and entered into on 19th day of April 1� �) 2023 by and between PURE GAME, a California non-profit public benefit corporation J ("User"), and the CITY OF SANTA ANA, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California ("City"). City and User are also referred to as "the Parties." RECITALS A. City was selected to be apart of Lay's RePlay project, which reuses empty chip bags to create soccer pitches, to have a Community Soccer Pitch constructed at Cesar Chavez Campesino Park. B. The City is the owner of Cesar Chavez Campesino Park located at 3311 W 5th Street, including the Community Soccer Pitch, in the City of Santa Ana. C. User is a California non-profit sports and character education program. D. City acknowledges the community need for programs such as those offered by User that encourage Santa Ana youth to engage in sports and offer supervised activities in a safe environment after school. E. In conformance with Grant Agreement No. A-2022-140, dated July 19, 2022, the City agrees to implement after school youth soccer and leadership programming by User on mutually agreeable dates and times The parties agree as follows: GRANT OF PERMISSION AND FACILITIES TO BE USED City hereby grants User the limited, non-exclusive right to utilize the Community Soccer Pitch at Cesar Chavez Campesino Park ("Facilities") to provide after school youth soccer and leadership programming and to hold one (1) special event per year (e.g., tournament) as further detailed in Exhibit A, attached hereto and incorporated by reference. PUBLIC PURPOSE City acknowledges the public benefit provided by User to the youth of the City of Santa Ana through its program and the fact that, User is a non-profit public benefit corporation. User will conduct afterschool youth soccer and leadership programming free of charge and at no cost to the City. Accordingly, there shall be no fee due by User to City under this Agreement. Page 1 of 8 3. TERM This Agreement shall commence one (1) month after completion of the Community Soccer Pitch at Cesar Chavez Campesino Park, but no later than June 30, 2023, for a term of three (3) years, unless terminated earlier in accordance with the terms of this Agreement. The term of this Agreement may be extended for up to two (2) one- year periods upon a writing executed by the City Manager and City Attorney. 4. COMPLIANCE WITH RULES AND REGULATIONS User shall use and occupy the Facilities in a safe and careful manner and shall comply with all applicable local, state, and federal laws in its use of and activities in the Facilities, including as to the conduct of its employees, agents, clients, customers, guests, and others using the Facilities by reason of this Agreement. User shall also comply with all rules and regulations of City in effect during its use of the Facilities. Failure to abide by such laws, rules, or regulations, or any condition of this Agreement, may result in the immediate termination of this Agreement in the sole discretion of the City. 5. BACKGROUND CHECKS User shall ensure that all employees, subcontractors, and any volunteers are fingerprinted and background checked prior to conducting any work pursuant to this Agreement. User shall not assign any employee, agent, subcontractor, volunteer or the User personally to provide services pursuant to this Agreement, if that employee, agent, subcontractor, volunteer, or the User personally are required to register as a sex offender under California Penal Code Section 290 et seq, have a conviction for any crime of moral turpitude, have a conviction for a sexual based crime, have a conviction for a violent felony as defined in California Penal Code Section 667.5(c), or has a conviction for a serious felony as defined in. California Penal Code Section 1192.7(c). Disqualifying convictions include but are not limited to, violations of California Penal Code Sections 37, 128, 136.1 with Section 186.22, 187, 190-190.4 and 192(a), 205, 206, 207-209.5, 211, 212, 212.5, 213, 214, 215, 218-219, 220, 236.1(b) or 236.1(c), 243.4, 261, 261.5, 273.5, 262, 264.1, 266, 266c, 266h, 266i, 266j, 267, 269, 272, 273a, 273ab, 273d, 285, 286, 288, 288a, 288.2, 288.3, 288.4, 288.5, 288.7, 289, 290, 311.1, 311.2, 311.3, 311.4, 311.10, 311.11, 314, 347(a), 368, 417(b), 45l(a),518 with 186.22, 647.6, 653f(c), 664 and 187, 667.5(c), 18745, 18750, or 18755, 12022.53, 11418(b)(1) or (b)(2); Business and Professions Code Section 729.' 6. INDEMNIFICATION User agrees to and shall indemnify, protect, defend, and hold harmless City, its officers, agents, employees, consultants, special counsel, and representatives from and against any and all claims, damages, judgments, attorney's fees, costs and expenses arising out of, involving, or in connection with the use of the Facilities or the acts or omissions of User, its officers, agents, employees, volunteers, guests, or invitees, whether or not such acts or omissions constitute permitted uses of the Facilities. Page 2 of 8 INSURANCE Without limiting User's indemnification obligations, User agrees to obtain and maintain during the term of the Agreement, and to require its subcontractors, if any, to obtain and maintain, insurance as described below: a. Minimum Scope and Limit of Insurance (1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 O1 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregatelimit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (2) Workers' Compensation: as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (3) Broader Coverage: if the User maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the User. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. b. Other Insurance Provisions (1) Additional Insured Status: The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the User including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the User's insurance (at least as broad as ISO Form CG 20 10 11 85 or if notavailable, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 2037 if a later edition is used). (2) Primary Coverage: For any claims related to this contract, the User's insurance coverage shall be primary coverage at least as broad as ISO CG 20 O1 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, Page 3 of 8 its officers, officials, employees, or volunteers shall be excess of the User's insurance and shall not contribute with it. (3) Notice of Cancellation: Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City. (4) Waiver of Subrogation: User hereby grants to City a waiver of any right to subrogation that any insurer of said User may acquire against the City by virtue of the payment of any loss under such insurance. User agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (5) Self -Insured Retentions: Self -insured retentions must be declared to and approved by the City. The City may require the User to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self -insured retention may be satisfied by either the named insured or City. (6) Acceptability of Insurers: Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City. (7) Claims Made Policies: If any of the required policies provide claims - made coverage: i. The retroactive date must be shown, and must be before the date of the contract or beginning of contract work. ii. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of contract work. iii. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the contract effective date, the User must purchase "extending reporting" coverage for a minimum of five (5) years after completion of work. Page 4 of 8 (8) Verification of Coverage: User shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage requiredby this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing allpolicy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the User's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. (9) Subcontractors: User shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and User shall ensure that City is an additional insured on insurance required from subcontractors. (10) Special Risks or Circumstances: City reserves the right to modify these requirements, including limits, based on the nature of therisk, prior experience, insurer, coverage, or other special circumstances. 8. CONFLICT OF INTEREST CLAUSE User covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 9. FORCE MAJUERE In the event that the Facilities are rendered unavailable due to destruction, partial or total, acts of nature, work stoppages or other labor disturbances, civil commotion, war, or any other action by governmental agencies, or for any reason beyond the control of City, City shall have the right to terminate this Agreement without penalty. 10. LICENSES AND PERMITS User represents and warrants that it, and any agents, independent contractors, subcontractors, vendors, or others acting on its behalf under or with respect to this Agreement, will at all times during the term of this Agreement have and maintain in force any and all licenses, permits, or approvals required by law for the conduct of User's activities under this Agreement. Page 5 of 8 11. DAMAGE TO FACILITIES - User shall be liable for any damage to the Facilities caused by any act of negligence of User, its partners, agents, servants, contractors, representatives, guests, employees, invitees, or customers. City may, at its option, repair such damage, and User agrees to reimburse City for the total cost of repair. 12. PROPERTY BELONGING TO USER City shall not be responsible for lost, stolen, or damages property belonging to User, its partners, agents, servants, contractors, representatives, guests, employees, invitees, or customers. 13. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and directed to the addresses below or such addresses as either party may later specify in writing. Notice is deemed effective on the date it is given if hand -delivered or received by facsimile that day. Notice given by U.S. mail shall be deemed to have been given three (3) business days after it is deposited in the U.S. mail, postage prepaid and addressed as follows: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 With copies to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-75) P.O. Box 1988 Santa Ana, California 92702 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 To User: PURE GAME Attn: Leadership Team 22372 Woodbluff Road Lake Forest, CA 92630 Page 6 of 8 14. EXCLUSIVITY AND AMENDMENT - This Agreement represents the complete and exclusive statement between the City and User regarding the subject matter herein, and supersedes any and all other agreements, oral or written, between the parties regarding the use of the Facilities. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of User. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate User or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein. 15. ASSIGNMENT User may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. User shall not allow any other person or entity to use the Facilities without the prior written consent of City. 16. TERMINATION This Agreement may be terminated by the City upon thirty (30) days written notice. 17. NONDISCRIMINATION User shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, gender identity, gender expression, gender, medical conditions, genetic information, or military and veteran status, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, teaching, training, utilization, promotion, termination or other employment related activities or any services provided under this Agreement. User affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 18. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. Page 7 of 8 19. AUTHORITY Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the date and year first above written. ATTEST: ennif 1 "' Clerk SONIA R. CARVALHO City Attorney By: B on Salvatierra Deputy City Attorney RECOMMENDED FOR APPROVAL: CITY OF SANTA ANA Kristine �Ridge �' City Manager PURE GAME Name: Tony Everett Title: Founder and Chief Playmaker Page 8 of 8 EXHIBIT A Cesar Chavez Pitch I Pure Game Schedule Day Hours Usage Monday 9:00-10:30 AM Pure Game Staff Field Day 3:00-6:30 PM Lay's Replay Pure Game Program Tuesday 3:00-630 PM Lay's Replay Pure Game Program Wednesday 3:00-6:30 PM Lay's Replay Pure Game Program Thursday 3:00-6:30 PM Lay's Replay Pure Game Program Summer Schedule I June -August Day Hours Usage Monday 9AM-12:30 PM Lay's Replay Pure Game Program Tuesday 9AM-12:30 PM Lay's Replay Pure Game Program Wednesday 9AM-12:30 PM Lay's Replay Pure Game Program Thursday 9AM-12:30 PM Lay's Replay Pure Game Program One (1) event activations on TBD date. Pure Game to give the City at least 90 day notice of field usage NOTICE OF COMPLIANCE CITY STAFF: PRINT THIS PAGE AND INCLUDE WITH AGREEMENT TO THE CLERK OF THE COUNCIL Contractor Pure Game Name: Project 2023 EPA (015) Number: Project 2023 Event Permit Application - Pure Game Name: The Certificate of Insurance (COI) submitted indicates that the coverages are in compliance with the insurance requirements. No further action is required at this time. The compliant coverage(s) are: POLICY EXPIRATION TYPE OF INSURANCE COI DATE FILE NAME NUMBER DATE Pure Game AUTOMOBILE LIABILITY PHPK2424442 07/17/2023 04/26/2023 COI City of Santa Ana.pdf Pure Game GENERAL LIABILITY PHPK2424442 07/17/2023 04/26/2023 COI City of Santa Ana.pdf Pure Game WORKERS COMPENSATION AND WCNCC338193 01/15/2024 05/10/2023 ACORD EMPLOYERS' LIABILITY Forms.pdf Thank you, City of Santa Ana Risk Management Division in partnership with CTrax Plus Services Team 5/16/2023 12:30 PM