Item 3 - Facility Use Agreement with PGSL for Use of Aubrey Park Softball FacilityFebruary 18, 2020, Item #3
February 18, 2020, Item #3
February 18, 2020, Item #3
February 18, 2020, Item #3
years. By written agreement of both Parties, it can be renewed one time for an
additional ten (10) year term.
4.Previous Agreement
This Agreement supersedes the Facility Use Agreement Between the City of
Poway and the Poway Girls Softball League for Use of the Aubrey Park Softball
Facility, entered into on December 13, 2005 ("2005 Agreement"), which as of the
Effective Date, no longer has any force or effect.
5.Termination
This Agreement may be cancelled by either Party for any reason upon written
notification of not less than ninety (90) days' notice.
6.Use
A.The City of Poway agrees to grant without remuneration the nonexclusive
use of the APSF to PGSL as specified in this Agreement. PGSL shall not
enter into a joint use agreement with any organization for use of the facilities
without pre-approval from the Director of Community Services, nor shall
these facilities be subleased by PGSL to any organization at any time. The
use of these facilities by any successor to PGSL must have the prior
approval of the City Council.
B.Use of the facility by PGSL is contingent upon compliance with all conditions
contained in CUP 03-15 or its successor(s), this Agreement, and approved
Facility Use Permits issued under conditions as described herein.
C.It is the responsibility of PGSL to determine the condition of the APSF fields
before use. PGSL will close fields as necessary when rain or other hazards
present safety concerns or when conditions are such that use could cause
damage to the field.
D.The City reserves the right to close the facility in the case of natural
disasters or other emergencies.
7.Entry and Inspection
City retains the right to enter or inspect all areas of Aubrey Park, including the
concession/storage building, at any time.
8.Facilities
This Agreement includes the use of all facilities located within APSF including:
A.Softball fields, backstops and player-seating areas
B.Batting cages
C.Concession/storage building
D.Restrooms
E.Pathways
F.Dumpsters and dumpster enclosure area
G.Other softball-related equipment and facilities
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9.Priority
As described in Sections 11 and 12 of this Agreement, PGSL has first access to
reserve APSF for softball activities. Other organizations to whom the City may
rent portions of the facility shall have lesser priority. As noted in Section 19 of
this Agreement, City retains first priority of its Aubrey Park, including APSF for
City use. All areas of the APSF that are not specifically reserved are open to the
public during park open hours with the exception of the concession/storage
building.
10.Possessory Interest
This Agreement may result in a taxable possessory interest and be subject to the
payment of property taxes. PGSL agrees to and shall pay before delinquency
any and all taxes and assessments of any kind assessed or levied upon PGSL
or the facilities listed herein by reason of this Agreement or of any buildings,
machines, or other improvements of any nature whatsoever erected, installed or
maintained by PGSL or by reason of the business or other activities of PGSL
upon or in connection with the facilities.
11.Times
A.The APSF will be available to PGSL to accommodate schedules as
established in Section 12 of this Agreement, which shall be in accordance
with the proposed schedule contained in CUP 03-15 or its successor(s).
B.PGSL will observe all established park hours and use rules. City will provide
PGSL with a copy of all rules affecting PGSL's use of the APSF.
C.PGSL participants and those associated with PGSL activities may not arrive
prior to 8:00 a.m. nor remain after sunset on any given day.
D.Use of motorized equipment and player warm-ups are not permitted prior to
8:00 a.m. nor after sunset.
E.PGSL practices, events (such as opening day or closing day ceremonies
and tournaments), and games may not start earlier than 9:00 a.m. and shall
end no later than fifteen (15) minutes prior to sunset.
F.City is responsible for opening and closing restrooms and gates at Aubrey
Park.
12.Schedules
A.Prior to January 1 each year the City will provide the PGSL President with
an updated Old Poway ParkNeterans Park Special Event Calendar, which
PGSL shall use to develop their annual use schedule. Should any PGSL
opening day, tournament, or closing day activities fall on the same dates as
a City special event, PGSL may be required to arrange and pay for shuttle
service from a location determined by City.
B.Schedules for use shall be established quarterly at the Poway Sports
Association (PSA) meeting by the PGSL President or designee.
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C.Upon submission of its schedule at the quarterly PSA meeting, PGSL is
required to input their reservation requests in the City's facility reservation
software for approval by the youth and adult sports coordinator.
D.At the discretion and direction of City staff, for any league activity that is
anticipated to draw attendance levels that will impact traffic, parking, and/or
noise levels of the surrounding resi dential area, such as opening day,
tournaments, and closing day, PGSL is required to deliver notices to
residents on Sycamore Avenue and York Street north of Aubrey at least ten
(10)days prior to the activity. PGSL must provide City with a copy of this
notice for approval in advance of distribution. Failure to provide proper,
approved notification to residents may result in facility use restrictions.
E.PGSL shall post the reservation permit and schedule on the public display
board at the facility.
13.Maintenance
A.Areas of City and PGSL maintenance responsibility are indicated in Exhibits
A, B, and C attached to this agreement and detailed below.
B.Within the assigned APSF areas in accordance with Exhibits A, B, and C
attached to this Agreement, PGSL is responsible for:
i.Landscape and irrigation management and maintenance.
ii.Irrigation scheduling through a remote software program.
iii.Attending annual maintenance clinic coordinated and administered
by City staff.
iv.Maintenance and repair of softball and other equipment including
chain link fencing and backstops (with the exclusion of the
decorative metalwork on the backstops), benches, infields,
bleachers, bases, mounds, home plate, scoreboards, outfield, and
back stop netting, etc. including batting cages.
v.Routine maintenance of all interior areas in the concession/storage
building, with the exception of the restrooms, HVAC,
concession/storage building plumbing up to, but not including,
fixtures, and electrical systems.
vi.Fire extinguisher supply, maintenance, and monthly inspection.
vii.Notifying the City through the Maintenance Liaison within twenty
four (24) hours of discovering graffiti anywhere at the APSF.
viii.Removal of litter and trash to the dumpster on use days, including
ensuring that the dumpster enclosure area remains free of litter,
debris, and damage.
ix.Ensuring that restrooms are clean, orderly, sanitary, and free of
litter on use days.
x.PGSL President (or Vice President) may request the temporary
use of one (1) City-issued key allowing access to the City janitorial
supply closet for large softball tournaments/events. Key requests
must be made at least two business days in advance of event and
returned within two business days upon completion of event. Key
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issuance will be administered at Aubrey Park by City staff who will
inspect the supply closet upon key issuance and return for
inventory control and orderliness.
xi.Power wash all concrete pads as needed and in accordance with
NPDES and stormwater regulations.
xii.Rekeying concession/storage building locks (as needed), followed
by providing the City with six (6) copies of new key within 48 hours.
C.Within the assigned APSF areas in accordance with Exhibits A, B, and C
attached to this Agreement, City is responsible for:
i.Landscape, irrigation and trash removal.
ii.Maintenance and repair of all storm drains, trees, drinking
fountains and outdoor lighting/electrical of all areas inside and
outside of the APSF.
iii.Management and maintenance of the irrigation controller box.
iv.Playground maintenance.
v.Routine maintenance of all park equipment outside of the APSF.
vi.All major facility maintenance, repairs and renovations except as
assigned to PGSL in this section; this includes outside areas of the
concession/storage building, foundation, roof, HVAC and electrical,
all restrooms including restroom plumbing, and concession/storage
building plumbing from the outside pipes leading up to and
including the valves.
vii.Opening and closing of the restrooms every day year-round.
viii.Providing and restocking all restroom supplies, including soap,
paper towels, toilet paper, trash bags, etc.
ix.Year-round weekly janitorial service of the park restrooms.
x.Year-round dumpster trash removal.
xi.Maintenance and repair of the decorative metal work on the
backstops located inside of the APSF.
xii.Graffiti removal from all areas inside and outside of the APSF.
D.City staff and PGSL shall collectively perform quarterly inspections of the
APSF to include all indoor and outdoor facilities. The City shall work with
PGSL to coordinate inspections, and a City standardized inspection form
shall be used to identify repairs and maintenance needed and required.
Repairs identified shall be made within a reasonable time frame agreed
upon by both parties, taking into consideration any safety or program
impacts of the condition to be repaired. The Party responsible for
maintaining the item as specified in the above conditions shall be required
to make and pay for repairs.
E.City shall notify PGSL at least 1 day in advance of planned HVAC
maintenance and within 3 days after any unplanned HVAC maintenance.
F.PGSL shall submit all repair requests to the City Maintenance Liaison as
defined in Section 20 below. Urgent requests outside of City Hall operating
hours shall be reported by phone to the City Water Treatment Facility (858)
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668-4751 and by email to the City Maintenance Liaison. For all
emergencies, PGSL shall call 911.
14.Security
A.PGSL shall secure or remove all portable PGSL property on a daily basis
when their activity is completed.
B.PGSL shall report all vandalism to the City of Poway Maintenance Liaison.
15.Alcohol
At no time is alcohol consumption permitted at the APSF by anyone affiliated
with PGSL (participants, volunteers, spectators, etc.) during PGSL scheduled
use. This is pursuant to Poway Municipal Code 9.48.270 which in summary
states that no person shall consume alcoholic beverages at any Community
Services facility during youth events whose participants are primarily under the
age of 21 years including youth sports games and parties.
16.Utilities
City is responsible for all water, sewer, gas, electrical utilities, and waste
management costs at the APSF. PGSL is responsible for ensuring HVAC and
water use is controlled, efficient and compliant with City restrictions. HVAC use
should not occur outside of scheduled facility use time, and water use should
adhere to the Water Conservation Plan as outlined in Chapter 8.94 of the Poway
Municipal Code. A pattern of violations may result in the City invoking control
over scheduling and use.
17.Supervision and Equipment
A.PGSL shall provide sufficient supervision of the participants and volunteers
of all PGSL activities and shall, at its expense, provide expendable
equipment and supplies related to PGSL use. The buildings, grounds, and
equipment, which are the property of the City of Poway, shall be cared for
in a diligent manner by PGSL during scheduled use, with PGSL responsible
for payment of any damages resulting from use by PGSL. Similarly, if
equipment and/or supplies are damaged by anyone during periods when
the City is responsible for the activities, the City shall pay for damages.
B.PGSL shall provide adult supervision when PGSL member youth are
present during scheduled activities. Unattended minors associated with
PGSL activities are not permitted.
C.All PGSL equipment must be removed from the APSF or placed in a locked
storage facility on a daily basis.
D.PGSL is responsible for the setup and storage of all equipment used for
PGSL operations and programming.
E.PGSL storage is limited to designated areas at APSF.
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F.City is responsible for the setup and storage of all equipment used for City
operations and programming.
18.Facility Modification
PGSL shall seek City approval before adding, removing, or modifying any City
asset. Requests by PGSL to add or provide additional services, facilities,
equipment, or permanent improvements at the APSF must be made in writing
and submitted to the City Agreement Liaison by January 1 each year to be
considered for funding by the City in the following fiscal year budget. Requests
to remove or modify facilities or equipment at the APSF must be made in writing
and can be submitted at any time to the City Agreement Liaison. All requests will
be submitted to the Director of Community Services and may occur only upon
the approval of the City Council. It is further agreed that the City may provide
additional facilities, equipment, and permanent improvements to the APSF upon
notification to the Board of Directors of PGSL. In addition, it is agreed that the
City and PGSL may jointly provide such items with the approval of their
respective administrators, the City Council, and the PGSL Board of Directors.
19.Policies and Procedures
Policies and procedures for the purpose of administering changes in schedules,
maintenance, security, use of equipment, coordination of events, parking, and
other related matters of mutual interest to both parties will be developed jointly
by the City and PGSL, with City use retaining priority.
20.Communication
To ensure consistency and timeliness, all communications must go through one
point of contact (per topic or overall) as designated by each Party.
For the City, those contacts are as follows:
City Maintenance Liaison
For maintenance, repairs, and scheduling communications, requests, issues,
and problems.
City Agreement Liaison
For terms of agreement and projects communications, requests, issues, and
problems,
For PGSL, the contact is as follows:
PGSL President or appointed designee
21.Parking
A.At no time does PGSL have exclusive use of the Aubrey Park parking lot.
The City and PGSL agree to cooperate in solving parking concerns that
result from concurrent City/PGSL events, with City events retaining priority.
B.PGSL is required to inform league participants not to park on local
residential streets including Sycamore Avenue and York Street north of
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Aubrey. At the discretion and direction of City staff, for any league activity
that is anticipated to draw attendance levels that will impact traffic or parking
in the surrounding residential area, such as opening day, tournaments, and
closing day, PGSL is required to post signage directing attendees to park
in designated areas. PGSL must provide City with a copy of the signage for
approval in advance of posting. Failure to post proper, approved signage
may result in facility use restrictions. Depending on the anticipated impact
on traffic and parking in the surrounding residential areas due to a league
activity, the City may require PGSL to develop and administer a City
approved parking plan which could include offsite shuttle services.
C.Parking of private vehicles is permitted in designated parking spaces only.
Parking of turf-type vehicles or construction equipment is temporarily
permitted in undesignated spaces insofar as its placement is directly related
to PGSL activities.
22.Access
Access to the APSF, including the softball fields and concession/storage
building, is limited to the Park's main entrance on Aubrey Street or the pedestrian
walkway off Midland Road. There will be no private vehicle or pedestrian access
from Sycamore Avenue for the purpose of participating in PGSL activities. For
the sole purpose of performing maintenance, PGSL may access APSF through
the parking lot maintenance entrance when necessary.
23.Limitation of Use at Other Facilities
PGSL may not utilize Old Poway Park for league play. This includes player
warm-up, practice and game play. Nothing in this section is intended to limit use
of City Facilities by individual league members for non-league activities.
24.Events and Permits
Any event days outside of normal operations (practices and games) are subject
to 30-day advance permit application(s) and notification, and standard City
requirements including bounce house permits, event permit fees, and insurance
requirements. Any vendors must meet all City requirements, including a City of
Poway business certificate and a County of San Diego Health Permit, if
applicable. The operator of the concession must hold and display a County
Health Permit during all operating hours. Any use of amplified sound at Aubrey
Park requires a City of Poway Temporary Use Permit as specified in the CUP.
25.Administrative Review and Amendment
A.The Director of Community Services or designee and the President of the
PGSL Board of Directors shall meet annually to review and coordinate
matters of concern and determine the impact of the administration of the
Agreement. The provisions of this Agreement may be amended or modified
only by mutual consent and written agreement approved by the City Council
and the PGSL Executive Board of Directors.
B.PGSL is required to provide detailed financial reports to City on an annual
basis. Said reports shall be sent to the City Agreement Liaison and include
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expenditures, revenues and projected cash flow, and be presented in a
format that is satisfactory to the City. The reports shall be due on the 20th
of the month that follows PGSL's budget cycle. PGSL shall allow the City
to inspect its financial reports, upon the City's request, including income and
expense statements, bank records, audits, and a balance sheet including
but not limited to any documentation the City deems necessary.
26.Indemnification
A.PGSL shall hold harmless, defend, and indemnify City, members of the City
Council, and its officers, employees, and agents from any and all losses,
demands, damages (including costs and attorney's fees), or causes of
action related to any injury to property or person or any other claim
("Claims") which is alleged to have arisen from PGSL use of the facilities
subject to this Agreement or PGSL's performance under this Agreement,
specifically including any third party Claim arising from PGSL's performance
under this Agreement, including but not limited to PGSL's obligations set
forth in Section 13, above, and the Exhibits attached hereto.
B.PGSL is required to secure insurance from any third-party contractors they
hire, and that such coverage must meet insurance requirements that PGSL
provides to the City. The City is not responsible for reviewing coverage
provided by third-parties.
C.The City shall hold harmless, defend, and indemnify PGSL, members of its
governing board, and its officers, employees, and agents from any and all
losses, demands, damages (including costs and attorney's fees), or causes
of action related to any injury to property or person or any other claim which
is alleged to have arisen from City's use of the facilities subject to this
Agreement.
D.PGSL further recognizes the inherent risks of damage to, or loss of, any
property associated with the use of the storage, arising from any cause
whatsoever including, but not limited to: fire, theft, vandalism, water
damage, mysterious disappearance, rodents, acts of god, or the active or
passive acts or omission or negligence of the City. PGSL acknowledges
and expressly assumes such risks and agrees to use the storage at its sole
risk, excepting only loss, injury, damage or costs that arise out of the City's
intentional wrongful acts or violations of law.
E.PGSL further hereby assumes all risk of any injury and damage to its
members, personnel and property that occurs in the course of, or in
connection with, the activities authorized by this Agreement, specifically
including PGSL's use and maintenance of the APSF. It is hereby agreed
that the City is not to be liable for injury or damage which may be sustained
by PGSL unless caused by the City's willful misconduct.
27.Insurance
During the term of this Agreement, PGSL shall obtain and maintain in full force
and effect the following insurance coverage:
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A.Liability Insurance: PGSL shall carry property damage and public liability
insurance by an insurer acceptable to the City that covers the areas and
activities set forth in this Agreement under their insurance program, which
shall have limits of up to $1,000,000 each occurrence with an annual
limitation of $2,000,000. PGSL shall add the City, its respective elected
officials, officers, employees, agents and representatives as an additional
insured to its policies and provide the City an endorsement to that effect.
B.Workers' Compensation Insurance: In connection with the performance of
this Agreement by PGSL, PGSL shall provide full workers' compensation
insurance for its employees or contract employees as required by the
Workers' Compensation Act. The City shall have workers' compensation
insurance for its employees or contract employees of the City.
C.Certification of Insurance: PGSL shall deliver to the City certificates of
insurance which shall provide that no cancellation, major change in
coverage, or non-renewal will be made during the term of this Agreement,
without thirty (30) days written notice to the City prior to the effective date
of such cancellation, change in coverage, or non-renewal.
28. Conditional Use Permit
This Agreement supplements but does not supersede any Conditional Use
Permit granted to PGSL by the City for use of the APSF.
29.Partial Invalidity
If any provision of this Agreement or the application thereof to any person or
circumstances shall to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such provision to person or circumstances
other than those as to which it is invalid or unenforceable, shall not be affected
thereby and each provision of this Agreement shall be valid and be enforced to
the fullest extent by law.
30.Governing Law. Venue and Attorneys' Fees
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of California. Each party to this Agreement consents to
personal jurisdiction in San Diego County, California. Any action to enforce or
interpret the terms or conditions of this Agreement shall be brought in the
Superior Court in San Diego County, Central Division, unless the parties mutually
agree to submit their dispute to arbitration. PGSL hereby waives any right to
remove any such action from San Diego County as is otherwise permitted by
California Code of Civil Procedure section 394. The prevailing party in any such
action or proceeding shall be entitled to recover all of its reasonable litigation
expenses, including its expert fees, attorneys' fees, courts costs, arbitration
costs, and any other fees.
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IN WITNESS WHEREOF, the parties hereto have set their hands on the date
first set above written.
City of Poway Poway Girls Softball League
Chris Hazeltine, City Manager Richard Sotelo, President
ATTEST:
Faviola Medina, City Clerk
APPROVED AS TO FORM AND LEGALITY:
Alan Fenstermacher, City Attorney
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Exhibit A: Areas of Responsibility
Areas marked in pink are the responsibility of PGSL. All other areas are the
responsibility of the City. Note that the restroom portion of the concession/storage
building is City responsibility.
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Exhibit B: Aubrey Park Sports Facility ("APSF") Maintenance Standards
PGSL is to maintain all assigned areas within the APSF in a safe, clean, and
well-maintained condition per City standards.
PGSL is required to attend an annual maintenance clinic coordinated and
administered by City staff to ensure all assigned areas, including sports fields and
equipment, are managed to City standards.
Daily Routine:
a.Pick up trash on grounds and empty trash cans.
b.Remove any safety hazards.
Weekly Routine:
a.Mowing: Mow all fields and applicable areas to ensure a uniform cut.
b. Irrigation:
i.Schedule watering cycles to achieve moisture at a 6-inch depth;
ii.Check and repair irrigation, heads, valves and coverage.
c.Examine Turf for Pests and Disease. Any controls, pesticides, or
herbicides to be used must be City approved and applied by a City
approved contractor.
d.Fencing Check for needed repairs and repair as required.
Monthly Routine:
a.Verify high use of compacted area as required, always before fertilizing.
b.Low spots in the turf will be corrected by an application of a sand mix and
top-dressed. Holes in turf will be filled and sodded or seeded as detected.
c.Edge un-mowable areas once a month.
Quarterly Routine:
Fertilization Program -apply City-approved fertilizer to cool season grasses at
an N-P-K ratio of approximately 2-1-1 or 3-1-2. Warm season grasses require
an approximate ratio of 4-1-11.
Annual Routine:
a.Infield Maintenance: Apply additional brick dust to infields at a rate of 20
yards per field as needed.
b.Turf Maintenance: Overseed and top-dress all bare or sparse turf areas.
c.Ballfield Infield and Warning Tracks: All surface irregularities (high and low
spots) will be checked and corrected in both the infield and warning tracks.
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Exhibit C: Building Maintenance Standards
PGSL shall maintain all interior areas of the concession/storage building (not
including the restrooms) located within the APSF in a safe, clean, and well-maintained
condition.
Building maintenance to be performed by PGSL at their expense includes, but is
not limited to, floors, walls, counters, interior and exterior doors and windows, plumbing
fixtures (not including restrooms), drains, appliances, interior light fixtures, bulbs, and
ballasts, as necessary. PGSL shall ensure that all equipment and appliances are
installed, positioned and functioning properly and appropriately.
City shall, at its own expense, be responsible for the maintenance and repair of
the following items, with the exception of damage due to PGSL activity: roof, foundation,
all restrooms, heating and air conditioning, plumbing (not including plumbing fixtures
within the concession/storage building), and interior and exterior electrical facilities with
the exception of interior lighting fixtures, bulbs, and ballasts.
Cleaning of the facility shall be performed by PGSL on a regular basis. PGSL
shall maintain at all times an "A" rating for cleanliness and sanitary condition, if
applicable, and as determined by the appropriate health enforcement authority in San
Diego County.
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