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05-0503_BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY_D8_Agenda Report • • 5!3!2005 D8 AGENDA REPORT TO: Dave Adams, City Manager ^ FROM: Karen Crocker, Community Services Director SUBJECT: Consideration of Authorizing Expanded Use of Real Property Lease of the Boys and Girls Club of Capistrano Valley (Eagles Peak Charter School) RECOMMENDATION: By motion, authorize the expanded use of the Real Property Lease Agreement between the City of San Juan Capistrano and Boys and Girls Club of Capistrano to allow Eagles Peak Charter School utilization during non-operational hours. SITUATION: A. Summary and Recommendation The Boys and Girls Club of Capistrano Valley is requesting that the City Council authorize expanded use of the Boys and Girls Club of Capistrano Valley facility (Attachment 1). The Club is requesting permission to rent the building to the Eagles Peak Charter School once a week during the school year starting spring 2005. Staff is recommending authorization to expand the use of the Boys and Girls Club of Capistrano Valley to allow the Charter School to rent the facility with conditions. The conditions include: 1) a term of no more than one (1) year for the facility rental; 2) use of facility once or twice a week; 3) hours of program to be adjusted according to Community Center programs to avoid additional traffic and parking issues; 4) Charter School participants to utilize the Sports Park parking lot only; 5) limit the number of students to 25 at any given time; 6) all students to be supervised at all times, including outdoors; 7) if the use of the building by the Charter School contributes to any negative impacts to the Community Center, parking, senior participants, then the Charter School will be discontinued at the site. B. Background The City Council entered into a Real Property Lease Agreement in June 1999, between the City of San Juan Capistrano and the Boys and Girls Club of Capistrano Valley (Attachment 2). The Real Property Lease Agreement states under Section 2(c) Permitted Uses of the Facility, that "In an event that Lessee desires to expand these permitted uses, then Lessee shall make formal application to the City Council for authorization to expand uses." This request is an expanded use of the facility; therefore, authorization is needed. Since the Agenda Report Page 2 May 3, 2005 agreement provides for authorization of expanded use, an amendment to the existing agreement is not required. The Boys and Girls Club of Capistrano Valley views this request as an opportunity to utilize its facility in a more efficient way. The building is generally not utilized until 2:00 p.m. on most days. During non-operational hours, the building could be rented to organizations which will generate additional revenue to offset ongoing operating expenses of the Boys and Girls Club of Capistrano Valley. The Eagles Peak Charter School is requesting to rent the Boys and Girls Club of Capistrano Valley between 9:00 a.m.-1:30 p.m., one (1) day per week. The Charter School would serve students in grades K-12 and would average 10-12 students at any given time during their one day of operation. The Community Services Department supports this expanded use with the above mentioned conditions. Due to the limited operations of the school and the minimum student participation, staff does not foresee negative impacts to the Community Center or Senior Citizen program. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: This item does not require action by the Parks, Recreation, and Equestrian Commission. The Commission will be provided information regarding the action taken on this item at their upcoming meeting. FINANCIAL CONSIDERATIONS: There are no City funds incurred by the expanded uses of the Real Property Lease Agreement. NOTIFICATION: The following party received notification of this Council agenda report: James Littlejohn, Executive Director Boys and Girls Club of Capistrano Valley* *Agenda Report included Agenda Report Page 3 May 3, 2005 RECOMMENDATION: By motion, authorize the expanded use of the Real Property Lease Agreement between the City of San Juan Capistrano and Boys and Girls Club of Capistrano to allow Eagles Peak Charter School utilization during non-operational hours. Respectfully submitted, Karen Crocker, Community Services Director KC:de Attachments: 1. Request for Authorization Letter 2. Real Property Lease Agreement 3. Location Map BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY SERVING SOUTH ORANGE COUNTY Boys and Girls Clubs of Capistrano Valley One Via Positive San Juan Capistrano,CA 92675 Tel 949.240.7898 Fax 949.240.7308 Officers March 24,2005 Torn Brebeck P-c...;,I st David Adams 5 Er.k mess City Manager rsr wcn P1e5/01e1y City of San Juan Capistrano An Galindo 32400 Paseo Adelanto 2nd ince Prevden' San Juan Capistrano Hot,Quest reasu'ei Re: Boys&Girls Clubs of Capistrano Valley Lease nnne Joseph 6ecre1ary Dear Mr.Adams: Board of Regents Chair The Bo s&Girls Clubs of Ca istrano Valle would like to submit this letter as a formal BCvengr0., y P y application to the City Council for authorization to expand our program uses. Executive Director James E Littlejohn In reference to our Real Property Leases Agreement we entered into with the City of San Juan .ax to 4 33-0529575 Capistrano on June 1, 1999, we would like to draw your attention to Section 2(c)Permitted Uses of the Facility.The last sentence in that first paragraph states;`9n the event that Lessee desires to expand v ws beccapo coin these permitted uses,then Lessee shall make formal application to the City Council for authorization to ended way 4 BOY408 expand uses."With this in mind the Boys&Girls Clubs of Capistrano Valley would like to request permission to provide a home school charter school program at its site once a week during the school year starting in the winter of 2005.The professional organization that will run this program is Eagles Peak Charter School located at:981 Vale Terrace Drive,Vista,CA 92084.Their website is www.easlespeak.org. The Boys&Girls Clubs of Capistrano Valley views this as an opportunity to utilize its facility in a more efficient way.Our building is generally not utilized until 2:OOPM on most days by our regular membership.This down time could be used to provide additional programs to benefit the community as a whole,while generating an extra revenue source to offset our ongoing operating expenses. As mention,Eagles Peak Charter School would operate an academically based home school program one day a week from 9:OOAM through 1:30PM,September through June.Eagles Peak Charter School serves kids K- 12 grades and would average 10— 12 kids every two hours during their one day of operation. With input from the San Juan Capistrano Community Services Department it was decided that this time of the day would by and large be the most advantageous to avoid any traffic issues that may arise as a result of nearby schools and their respective schedule Thanks for taking the time to review this formal application and please feel free to call me at(949)240- 7898 ext. 12 if you have any questions that you need answered. Sincerely, James Littlejohn Executive Director Boys&Girls Clubs of Capistrano Valley ATTACHMENT REAL PROPERTY LEASE CC)PY ,-This Real Property Lease (the "Agreement") is entered into this day of `J L,(lam 1999, by and between the City of San Juan Capistrano (hereinafter "City"), and Boys& Girls Club of Capistrano Valley, a non-profit corporation, (hereinafter "Lessee"). RECITALS: WHEREAS, Lessee desires to lease certain real property from City to construct and operate a Boys and Girls Club facility, and WHEREAS, City and Lessee have previously entered into a memorandum of understanding dated August 18, 1998 providing for certain terms and conditions governing the timing of the commencement of the lease and the operation of the Club facility, NOW, THEREFORE, City and Lessee hereby mutually agree as follows: Section 1. Lease of Premises. City hereby leases to Lessee and Lessee hereby leases from City, in accordance with the terms of this Agreement, that certain vacant real property situated in the City of San Juan Capistrano, County of Orange, State of California, more particularly described in Exhibit "A", attached and incorporated herein by reference. The real property described in Exhibit "A" and shown on the Site Plan, attached and incorporated herein by reference as Exhibit "B", is hereinafter called the "Premises". The Premises consists of approximately Eleven Thousand (11,000) square feet of land and is located adjacent to City's Community Center facility. Section 2. Purposes of the Leasehold. (a) Constriction of Lessee's Facility. The purpose of this lease is to enable Lessee to acquire sufficient land to construct and operate a non-profit Boys & Girls Club facility (the "Facility"). The site plan layout for the Facility is set forth in the Site Plan attached as Exhibit "B". (b) Timing of the Construction of the Facility. Lessee agrees to commence construction of the Facility by not later than September 1, 1999. Completion of the Facility shall occur by not later than August 1, 2001. c:iwpwinWwpdoc bovs&girl'lea .ate -1- 0323197 ATTACHMENT (c) Permitted Uses of the Facility. Once completed, Lessee's Facility shall be used solely and exclusively to provide recreational and other social programs to persons within the City consistent with Lessees Articles of Incorporation, By-Laws, and other relevant regulations. Other permitted uses are those as set forth in Exhibit "C," attached and incorporated herein by reference. In the event that Lessee desires to expand these permitted uses, then Lessee shall make formal application to the City Council for authorization to expand uses. Lessee covenants and agrees to use the Premises for the above-specified purposes and to diligently pursue said purposes throughout the term hereof. In the event that Lessee fails to use the Premises for said purposes, or uses the Premises for purposes not expressly authorized herein, the Lessee shall be deemed in default under this Agreement and subject to the termination provisions of section 5 of this Agreement. Lessee shall not use the Premises in any manner which disturbs the quiet enjoyment and use of the adjacent community center, gymnasium, or Sports Park Complex. Lessee further covenants and agrees not to use, or permit the use of, the Premises or any portion of the Premises in any manner or for any purpose that is in any way in violation of any valid law, statute, ordinance or regulation of the United States, the State of California, the City of San Juan Capistrano, or any other federal, state, county, or local governmental agency, body or entity with applicable legal jurisdiction. (d) Condition and Maintenance of Facility and Improvements. Lessee shall assume full responsibility and costs for the maintenance of the Premises and Facility throughout the term of this Agreement. Lessee shall take all necessary action to maintain and preserve the Premises in a decent, safe, healthy and sanitary condition satisfactory to Lessee and in compliance with all applicable laws. In addition, the parties intend to enter into a memorandum of understanding to further define specific obligations with respect to common area maintenance. Section 3. Lessee's Fundine of Project as Condition Precedent to Effective Date of Leasehold. (a) Funding in Place As a Condition Precedent. This lease shall not become legally effective until such time as Lessee has presented written proof to City that: (a) it raised sufficient funding to finance one hundred percent (100°/U) of the estimated cost of the project, or such lesser amount as determined by the Office of the City Manager, and (b) secured a legal commitment for at least a one million dollar ($1,000,000) back up construction loan from a bona fide commercial bank lender. c:•.wpwin60%%pdms,bovs&grl,ic&w.agr -2- 05/25/99 City acknowledges that Lessee has arranged for a construction loan of up to $1,300,00 from American Sterling Bank. City hereby agrees to guarantee the repayment of said loan in the event of a default by Lessee. Lessee agrees, however, to expend at least $300,000 of its current cash-on hand as first dollars in toward payment of construction progress payments as construction on the project begins. In addition, it is the intent of the parties that a 5500,000 federal grant shall be expended for construction costs at such time that the federal grant is made available to the Lessee. (b) Limitations on Lender's Security Interest. Lessee shall insure that any loan documents with its commercial lender will allow City to assume title to the improvements and take over the remaining loan balance then owed to the bank in the event of default by Lessee on its bank loan. Accordingly, Lessee covenants to require its lender to subordinate its lien rights against Lessee in the event of a loan default. Section 4. Term and Termination of Lease. (a) Term.. This lease shall be for a term of twenty (25)years from date of its execution. City grants an option to Lessee to extend this Agreement for an additional 25 year period on the same terms and conditions as set forth in this Agreement providing: i) that Lessee delivers a written notice to City requesting an exercise of the option to renew at least 180 days prior to the termination of the Agreement, and ii) that City's City Council has not made a finding and determination at any time 30 days prior to the twenty five year term that Lessee has demonstrated a consistent pattern of non-compliance with the terms and conditions of this Agreement over the life of the lease. (b) Special Termination Provisions, Failure to Commence Use. In addition to all other remedies available to it, City may terminate Lessee's tenancy upon written notice given at any time if Lessee fails to commence to construct the buildings and facilities shown on the Site Plan and Land Use entitlements within two (2) years, or to commence actual use of the Premises for the authorized uses within four(4)years from the date of commencement of the tenancy. Termination of tenancy shall not be construed as a waiver of other remedies. (c) Abandonment by Lessee. In the event that Lessee breaches this Agreement and abandons the Premises, or terminates the use thereof for a period of sixty (60) days in any one hundred and twenty (120) day time period, the Lessee's tenancy shall terminate. Termination of tenancy shall not be construed as a waiver of other remedies. (d) Quitclaim of Lessee's Interest. On termination of this lease for any reason, Lessee shall deliver to City a quitclaim deed in recordable form quitclaiming all its rights in and to the Premises, including the constructed facilities, subject to the terms of c:'wpwin60\"pdo.sibovs&gri�leawag -3- 05/25/99 Section 3. Lessee or its successor-in-interest shall deliver the same within five (5) days after receiving written demand therefor. City may record such deed only on the expiration or earlier termination of this Agreement If Lessee fails or refirses to deliver the required deed, the City may prepare and record a notice reciting Lessee's failure to execute this lease provision and the notice will be conclusive evidence of the termination of this Agreement and all Lessee's rights to the Premises. (e) Surrender of Premises. At the expiration or earlier termination of Lessee's tenancy, Lessee shall surrender the Premises to City free and clear of all liens and encumbrances, except those resulting from City activity, or liens and encumbrances which existed on the date of the execution of this Agreement by City. The Premises, when surrendered by Lessee, shall be in safe and sanitary condition, free from hazardous or toxic waste or material, environmental pollution or other contamination and shall be in as good condition as at the commencement of this Agreement, absent normal wear and tear. (f) Time of Essence. Time is of the essence of all the terms, covenants, conditions and provisions of this Agreement. Section 5. Performance and Default Requirements. (a) Ooerational Issues. In the event that the Lessee experiences significant operational problems, including but not limited to a lack of proper facilities maintenance, a consistent pattern of unresolved conflicts between City and Lessee, significant decline of program participation below established goals, and unreasonable and unresolved police calls pertaining to Lessee's Club Facility, then the City Council of City reserves the right to consider initiating a process for the possible assumption by City of interim day-today Lessee Club management for the purpose of insuring successful performance of the Lessee's Club youth program. The process shall be: (1) The City Council of City may call for a hearing after giving written notice to Lessee for the purpose of requesting a Panel Review for any of the above-stated operational problems. "Panel Review" is defined to mean a Panel, consisting of two (2) members of the City Council, two (2) members of the Club's Board of Directors, and two (2) members of the Capistrano Unified School District, which shall conduct one or more meetings in compliance with the Brown Act in review of the question put to it by the City Council. c:iwpwin60�wpdoc bovs&glllcu .ag -4- 05/25/99 1 r� • (2) If, after conducting a hearing, the City Council votes by simple majority of its entire membership to initiate a Panel Review, then a written statement of the issue shall be transmitted to the Panel for review. (3) The Panel may elect to recommend to the City Council and the Club that the management be assumed, or not assumed by the City, or, in the alternative, recommend other appropriate courses of action. (4) Thereafter, the matter shall be heard by the City Council as soon as reasonably practicable. The Council shall not vote to assume the day-today management in the event that the Panel recommends against such an assumption of management. The Club shall be given a full opportunity to address the City Council regarding this matter prior to the City Council making a final determination on the issue. (5) In the event that the City Council unilaterally votes to assume the day-to-day management of the Club on an interim basis and consistent with the steps set forth herein, the City shall then deliver notice to the Club within twenty-four(24) hours of such decision. The Club shall then take immediate steps to coordinate with City. In the event that the Club does not comply with this subsection, then the leasehold shall be deemed to be void and forfeited by the Club. (b) Default. If Lessee shall fail to comply with any of the terms, covenants or conditions of this Agreement, City shall serve a written notice of default upon Lessee. Lessee shall cure such default within thirty (30) days, providing such default can be reasonably cured within thirty (30) days. If the default requires more time to cure, then Lessee shall commence the cure within thirty (30) days' notice of the default and complete the cure within a reasonable period of time as specified by the City notice of default. If the Lessee still has not cured the default, then City may, at its option, and without further notice or demand, terminate this Agreement and enter upon the Premises and take possession thereof, and remove any and all persons therefrom with or without process of law. Section 6. Rent. In consideration of the public benefits Lessee will provide to the community, no rent shall be required for this leasehold. cawpwin60',wpdo ,boys&grl\lea .agr -5- 05/25/99 • Section 7. Insurance and Indemnity. (a)Insurance Requirements. Lessee shall maintain at all times during the term of this lease satisfactory general liability and premises liability insurance in the amount of not less than One Million Dollars ($1,000,000) and reasonable fire insurance in a form acceptable to the Office of the City Attorney. City shall be named as an additional named insured. Other terms and conditions, including cancellation provisions and endorsement forms, shall be reviewed and approved by the Office of the City Attorney. (b) Indemnity. Lessee shall indemnify, save and defend City, its elected and appointed officials, and employees harmless from and against any and all claims, demands, suits, actions and proceedings, of any kind or nature, for damages to property or injuries to or death of any persons arising out of Lessee's actions and activities as Lessee of the subject Premises. City shall indemnify, save and defend Lessee, its directors and employees, harmless from and against any and all claims, demands, suits, actions and proceedings, of any kind or nature, for damages to property or injuries to or death of any persons due solely to the performance of any action by City under this Lease. Section 8. Imnrovements/Liens/Encumbrances and Related Matters. (a) Nature and Quality of Tmorovements. Lessee shall, at Lessee's sole cost and expense, construct or cause to be constructed on the Premises the building and facilities described in the Site Plan in the manner and according to the terms and conditions specified herein. Lessee shall construct the building project for the permitted use herein, subject to prior receipt of applicable city land use permits. Minor, technical deviations between the plans and specifications and in field construction activity shall not be deemed to constitute a breach of this Agreement. However, Lessee shall insure that it will coordinate with its contractor and city staff to insure that the final construction is satisfactorily consistent with Lessee's plans and specifications for the Facility. Lessee agrees that its contractor shall provide faithful performance and labor and materials bonds equal to one hundred percent (100°/a) of the cost of the project. In addition, Lessee shall insure that its contractor maintains general comprehensive liability insurance in an amount of at least One Million Dollars ($1,000,000) combined single limit. The bonds and the insurance shall both be pre-approved by the Office of the City Attorney. The project shall be constructed in accordance with all valid laws, ordinances, regulations and orders of all federal, state, county, or local governmental agencies or entities c:�wpwin60kwpdmboys&gl`Jea .agr -6- 05/25,99 having jurisdiction over said Premises, including City, provided, however, that any structure or other improvement erected on said Premises, including the building project, shall be deemed to have been constructed in full compliance with all such valid laws, ordinances, regulations, and orders when a valid final certificate of occupancy entitling Lessee and tenants of Lessee to occupy and use the structure or other improvement has been duly issued by the Building Department of the City. All work performed on said Premises pursuant to this lease or authorized by this lease shall be done in a good, quality manner and only with new materials of good quality and high standard. (b)Utilities. Lessee agrees to order, obtain, and pay for all utilities and service and installation charges in connection with the development, occupation and operation of the leased Premises. Lessee shall, at Lessee's sole cost and expense, construct or cause to be constructed all facilities necessary to provide utilities, including but not limited to, telephone, electric, gas, water, sewer and cable television service to the Premises. All utility service lines shall be placed underground unless otherwise permitted by City. Lessee shall be responsible for payment of all applicable utility service, connections, standby or other fees, rates or charges. (c) Liens. Lessee shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to all or any portion of the Premises without the prior written consent of City. (d) Encumbrances. Lessee may encumber this Lease, its leasehold estate and its improvements thereon by deed of trust, mortgage, chattel mortgage or other security instrument to assure the payment of a promissory note or notes of lessee, upon the express condition that the net proceeds of such loan or loans shall be devoted exclusively to the purpose of developing and/or improving the leased Premises. In addition, any such indebtedness shall be subject to the qualifications set forth in Section 3(b) of this Agreement. (e) Taxes. Except to the extent that Lessee is exempt from payment of property taxes or possessory interest taxes, Lessee shall pay, before delinquency, all taxes, assessments, and fees assessed or levied upon Lessee or the Premises, including the land, any buildings, structures, machines, equipment, appliances, or other improvements of property of any nature whatsoever erected, installed, or maintained by Lessee or levied by reason of Lessee's activities related to the a Premises, including any licenses or permits. (f) S e. Lessee shall not erect or display any banners, pennants, flags, posters, signs, decorations, marquees, awnings, or similar devices or advertising without the c.lwpwin60�wpdoaiboys&gri-leascagr -7- 05/25/99 prior written consent of City. If any such unauthorized item is found on the Premises, Lessee shall remove the items at its expense within twenty-four(24)hours of written notice thereof by City, or City may thereupon remove the item at Lessee's cost. All signs located on the Premises shall comply with the provisions of any City ordinance regulating signs. Section 9. Ownership of Improvements. (a) Title Ownership. Any and all buildings, facilities, and improvements placed or erected on the Premises as part of said building project or otherwise under this Agreement, as well as any and all other alterations, additions, improvements, and fixtures, except furniture and trade fixtures, made or placed in or on said Premises by Lessee or another person shall be considered the personal property of the Lessee and on expiration or sooner termination of this Lease shall remain on said Premises and become, at City's option, the property of City free of all liens and claims except as otherwise provided for in this Agreement. (b) Removal of Improvements. If City elects not to assume ownership of all or any improvements, trade fixtures, structures and installations, City shall so notify Lessee in writing thirty (30) days prior to termination or one hundred eighty (180) days prior to expiration, and Lessee shall remove all such improvements, structures and installations as directed by City at Lessee's sole cost on or before Agreement expiration or termination. If Lessee fails to remove any improvements, structures, and installations as directed, Lessee agrees to pay City the full cost of any removal. (c) Repairs. If any removal of such personal property by Lessee results in damage to the remaining improvements on the Premises, Lessee shall repair all such damage to the same condition as existed immediately before such removal. Section 10. No Assienments. Lessee shall not assign or hypothecate in any manner this Agreement without the express written consent of City. Section 11. Force Maieure. If the performance by any party of its obligations or undertakings under this Agreement is interrupted or delayed by any occurrence not occasioned by the conduct of either party to this Agreement, whether that occurrence is an act of God or public enemy, or whether that occurrence is caused by war, riot, storm, earthquake, or other natural forces, or by the acts of anyone not a party to this Agreement, then that party shall be excused from any c:`.wpwin6�\wpdocs�buys&grllzaseag -g- 0523199 firrther performance for whatever period of time after the occurrence is reasonably necessary to remedy the effects of that occurrence. Section 12. General Provisions. (a)Notices. All notices, demands, consents, or other communications required to be given under this Agreement shall be accomplished by first class mail, postage prepaid, and deposited in the U.S. mails, or personally served upon the other party at the address identified below. The address for delivery of notice can be changed by either party by giving written notice of the new address. To City: George Scarborough, City Manager City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 To Lessee: Mr. Jim Williams Executive Director Boys & Girls Club of Capistrano Valley 31371 El Camino Real San Juan Capistrano, CA 92675 (b) Attorney's Fees. In the event any legal action or proceeding is commenced to interpret or enforce the terms of, or obligations arising out of, this Agreement, or to recover damages for the breach thereof, the party prevailing in any such action or proceeding shall be entitled to recover from the non-prevailing party all reasonable attorney's fees, costs and expenses incurred by the prevailing party. (c) Entire Agreement. This Agreement contains the entire agreement of the parties hereto with respect to the matters covered hereby, and no other previous agreement, statement or promise made by any party hereto which is not contained herein shall be binding or valid. kwpwin60\wpdo \boys&grIVea .ag —9— 05/25199 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY Of SAN JUAN CAPISTRANO By: Jo Greiner, Mayor ATTEST: By( Cheryl John o , C' Clerk APPROVED AS TO FO/RM: l By: John R. Shaw, Ci Attorney BOYS & GIRLS CLUB OF CLSTRAINO V4ALLEY ; �,. c:\wpwin60\wpdo \bo)s&grl ieaw.agr 'I0- 03!23.99 ' 1 ca !�B ��' •'•'• `` m E. . U ^ I w ica • %•r y i cn i�• ��. i • • •E i Wtnily� i j "A gag o'. a toils `••� d i . r. • �.« .. o0g��•s•�ti► • Nw•► •r���t�•�•�.�.� ��•�• �� � � � •b Ann