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08-0715_BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY_D9_Agenda Report 7/15/2008 AGENDA REPORT D9 TO: Dave Adams, City Manager FROM: Karen Crocker, Community Services Director SUBJECT: Consideration of Revised Memorandum of Understanding and Real Property Lease (Boys & Girls Clubs of Capistrano Valley) RECOMMENDATION: By motion, approve the revised Memorandum of Understanding and Amend Real Property Lease with the Boys & Girls Clubs of Capistrano Valley. BACKGROUND: The City and the Boys & Girls Clubs of Capistrano Valley entered into a Real Property Lease (Attachment 1) dated June 1, 1999, which provided the lease of City land to the Boys & Girls Clubs of Capistrano Valley. At the March 6, 2007 City Council meeting, the Real Property Lease was amended to allow the expansion of the existing facility to permit the addition of approximately 7,000 square feet for a proposed teen center (Attachment 2). In addition to the real property lease, a Memorandum of Understanding dated June 20, 2000 (Attachment 3), was approved to identify conditions of use between the City and Boys & Girls Clubs of Capistrano Valley. The 1999 Real Property Lease and 2000 Memorandum of Understanding identify the Boys & Girls Clubs of Capistrano Valley as the "Boys and Girls Club." Since that time, there has been an official name change to the "Boys & Girls Clubs of Capistrano Valley." SITUATION: The Boys & Girls Clubs of Capistrano Valley is in the approval process phase to construct a teen center, which will be adjacent to the existing Boys & Girls Clubs of Capistrano Valley facility. As a result of the new teen center, there is a need to revise the existing Memorandum of Understanding. Such items identified in the Memorandum of Understanding include a change in the shared parking areas, water sub-meter, loitering, litter, and enforcement of evening teen activities. Agenda Report Page 2 June 17, 2008 Due to the limited amount of parking adjacent to the Community Center, City Gymnasium, and the Boys & Girls Clubs of Capistrano Valley, the designated parking areas for the teen center will be at the Sports Park parking area and/or adjoining school site parking area. The Boys & Girls Clubs of Capistrano Valley will obtain permission from Capistrano Unified School District for the use of the adjacent parking areas. Teens will not be permitted to park in the main Community Center parking lot and will be required to register their vehicles with the Boys & Girls Clubs of Capistrano Valley to allow parking in authorized on-site (Sports Park) and off-site (Marco Forster Middle School and Del Obispo Schools) parking areas. In addition to the parking areas, the Memorandum of Understanding also identifies special teen center operational requirements. The Boys & Girls Clubs of Capistrano Valley will designate a staff member to periodically walk the Community Center complex to address loitering and littering issues during the Boys & Girls Clubs of Capistrano Valley operation. The designated site monitor will be on-duty after school to assure that loitering is prevented. Children waiting to be picked up by parents of siblings will be required to wait inside the building. The Boys & Girls Clubs of Capistrano Valley will manage evening events (i.e. dances) as closed events with no entry to the event or leaving the event during the actual hours of the event. Arrival and departure from the Community Center complex for teen center special events shall be restricted to specific times to prevent potential loitering that could lead to illicit activity. The Boys & Girls Clubs of Capistrano Valley may be required by the City to hire private security in order to conduct special events. The requirement to hire private security will be based on the risk factor of the events and/or potential or past issues of a specific event. In addition, if there is potential for a community disturbance that is unrelated to the event, the City shall require private security to assure the safety of participants. The parking and operational requirements are consistent to the Planning Cornmissions Conditions of Approval and the water sub-meter appears on building plans. The Real Property Lease between the Boys and Girls Clubs of Capistrano Valley and the City of San Juan Capistrano is the governing document to assure compliance within the Memorandum of Understanding. Staff is recommending to amend the Real Property Lease of Section 5. Performance and Default Requirements. The amended language will enable the City Council to take formal action regarding non-compliance performance of the Boys and Girls Clubs without the "Panel Review" overriding the City Council's decision. Agenda Report Page 3 June 17, 2008 COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: This report was presented to the Parks, Recreation and Equestrian Commission at their meeting on June 16, 2008. Staff will present the Commission's recommendations at the City Council meeting. FINANCIAL CONSIDERATIONS: There will be no City funds incurred in the construction of the Teen Center. The City Council has previously approved a $200,000 grant to the Clubs for Teen Center Operations. NOTIFICATION: Mr. James Littlejohn, Executive Director, Boys & Girls Clubs of Capistrano Valley Mr. Ken Friess RECOMMENDATION: By motion, approve the revised Memorandum of Understanding and Amend Real Property Lease with the Boys & Girls Clubs of Capistrano Valley. Respectfully submitted, �w rrAA pp Karen Crocker Community Services Director Attachments: 1. Real Property Lease, 1999 2. Real Property Amendment 2007 3. Memorandum of Understanding, 2000 4. Revised Memorandum of Understanding 5. Amended Real Property Lease REAL PROPERTY LEASE This Real Property Lease (the "Agreement") is entered into this :''Sr day of t>Yle, , 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) Construction 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:lwpwin60\wpdocs\boys&grlvease.agr -1- 05/25/99 Attachment 1 (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 Lessee's 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 Facilityand 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 Fundingof 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%) 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:lwpwin601w4xdocs\boys&grl\lease.aB —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 $500,000 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:\wpwin6o\wpdom\boys&grigease.agr -3- 05125/99 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 refuses 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) Operational 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-to-day 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:\wpwin6olwpaocs\boys&grlvease.agr —4— 05/25/99 (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-to-day 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. c:\wp vin6o\wpaocslboys8tglvease.agr -5- 05125/99 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. Improvements/Liens/Encumbrances and Related Matters. (a)Nature and Quality of Improvements. 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 (1001/6) 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:\wpwin60\wpd—\boys&grl\l—.agr -6- 03/23/99 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 -ecurity 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) Signs. Lessee shall not erect or display any banners, pennants, flags, posters, signs, decorations, marquees, awnings, or similar devices or advertising without the c:\wpwin60\wpdocs\boys&grl\lease.agr -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 Assignments. Lessee shall not assign or hypothecate in any manner this Agreement without the express written consent of City. Section 11. Force Majeure. 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:\wpwin6o\wpdocs\boys&grl\lease.agr -8- 05125/99 further 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) Attorneys 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. CAwpwin60\wpdO-\boys&Vi\J e.agr -9- 03/23/99 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY OF SANAN CAPISTRANO By; Jo Greiner, Mayor ATTEST: By: Cheryl Johns , CoClerk APPROVED AS TO FORM: By: `-- John R. Shaw, Ci Attorney BOYS & GIRLS CLUB OF CAPISTRANO VALLEY c:\wpwin6O\%Vd=\boys&grlvease.agr -10- 05r25M AMENDMENT TO LEASE'OF REAL PROPERTY AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY (FORMERLY KNOWN AS THE BOYS & GIRLS CLUB OF CAPISTRANO VALLEY) This Amendment to Lease of Real Property Agreement is made this 6th day of March, 2007, by and between the City of San Juan Capistrano (hereinafter "Lessor"), and The Boys and Girls Clubs of Capistrano Valley (hereinafter "Lessee"), formerly known as the Boys & Girls Club of Capistrano Valley. Whereas, On June 1, 1999, Lessor and Lessee entered into a certain real property lease ("Real Property Lease") for certain property owned by the Lessor in the City of San Juan Capistrano for the purpose of allowing Lessee to construct a Boys & Girls Club center, and Whereas, Lessor and Lessee desire to further amend the Real Property Lease for the primary purpose of: (1) adding real property to the demised premises; and, (2) extending the term of the real property lease, and NOW, THEREFORE, in consideration of the foregoing, and the covenants and conditions set forth below, Lessor and Lessee hereby mutually agree as follows: Section 1. Amended Leased Premises. The "Premises" as set forth in the Real Property lease is amended to include the original leased property plus that additional property generally depicted Exhibit A, labeled "Proposed Teen Center," said Exhibit A being attached and incorporated herein by reference. The parties agree and understand that the additional leased area is to be developed by Lessee as a teen center. Lessee agrees to construct the teen center within 12 months following the City's land use approval for the design and layout of the center, unless Lessee is otherwise granted additional time by the City Council to complete project construction. Section 2. Lease Term. The term of the Real Property Lease will now be for a term of twenty-five (25) years from effective date of this Amendment agreement. The option granted by Lessor for an additional twenty-five (25) year period, as provided for in section 4(a) of the Real Property Lease, shall remain in full force and effect. Section 3. Miscellaneous. (a) Section 8(d) of the Real Property Lease is amended to read as follows: Attachment 2 "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 developing and/or improving the leased Premises or for operating expenses of the Lessee. The City allotted $200,000 to the Lessee for the proposed teen center operations. If the teen center is not constructed for any reason, the Lessee will return the $200,000 operational funds to the City." (b) All other terms and conditions of the Real Property lease shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written. CITY OF SAN JUAN CAPISTRANO % � 1 By: Ma r Sam Allevato Attest: Y: ,. garet R. Monahan Ci Clerk Approve s to . r By: Jolffiaw Cit Attorney BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY By: James Littlejohn, Executive Airector F3ctS�1NG i • E --- _� LEGEND {{i Ior.1111.1 ° EASTiNG _ ` Q �� ? 'G::. • E*Sr64G BASEB#U FIELDS SAN JUAN ?-'�4 w__ I •• ti DDLf { r • ,. SPORTS PARK p »..,..,.... SCHOOL I —► w.iN••ri.Gu P[OIECT OhiA LU I > I;• s tit' 4 �> ,. amp— FXiSTING ';`` •, BOYS&��Gly.•p s au • EXISTINGMST44G ']b Z a 'GYi0ovsKm— r CUMN�UhNTY : ;s - -• z Y • r...1M• pU r.M r W j , •�.R...� CENTER E TING + 'W •rw.ra. ?,' SOCCER +�t „" FIBD PROiELTOE$GMR7JN: I tADJEif M.Iti LU,. • — t:f`;� PRAECS ApOXfSk ! ul W £s•2, • \ �- T R VICINITT MAP EASIING O ELEMENTARY w fir.i:r..'•f•. . . r.ria�.,,a.rff• •' • Y Y • • • e • • s • • • • • • • T D :( S' • � „ 1" 4t. 111<st ' ♦i.v ./ [. ^ -M. UP •S,{ :Si� 'L'P.4CN�,,��� - � y `<� � � � I.r It r.c•..,Iw � � �`� y ,''''Y:l.,m1'-, �t7:.. .Y ..} ,. �~• � r� � • �, i TEtEl�+ CEIVTE¢ , U • s. . cti.�., t,. 4' Y!� }sS3 t>'(iy"<<S�,ti;.iw;v)cftG. :(``:��'f;3rf'�4ir-; :•€:}' �%.':'Y:+:;1.: • .Y :r. ..I r.un w. ... .r.�.„'•'t.'..tri:..:._: CAMINO DEL AYION A1•1 [19 MASUR SITE PLAN yam;_......_-.�_....�..._.--__......_....,.._.�.— –__.... 'I. •� i i — rte— — — ----- -- {-' ! Ji Ir _ _! ......._..... F4 rrrrrrncm TV—- f i a r rwoi■���a�•w�.iwntiMa aF orMl�tRMla . • ..� MEMORANDUM OF UNDERSTANDING AGREEMENT This Memorandum of Understanding Agreement is entered into this 2�lay of I.-TOA-e— , 2000, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter "City"), and BOYS & GIRLS CLUB OF CAPISTRANO VALLEY, a non-profit corporation (hereinafter "Club"). RECITALS: WHEREAS, City and Club have entered into a real property lease dated June 1, 1999 ("the master leasehold agreement") providing for the lease of City land to the Club and the Club's construction of the Club Facility in accordance with the Site Plan attached to the lease agreement; and WHEREAS, City's Community Center Concept Plan included a 6,000 sq. ft. youth facility to be located on the site; and WHEREAS, City accepted Club's offer to build an expanded youth facility of approximately 11,000 sq. ft. (hereinafter referred to as the "Club Facility") from private funds and entered into a master lease; and WHEREAS, the demised premises and building footprint are set forth in the Site Plan attached as Exhibit "A," and incorporated herein by reference; and WHEREAS, City has constructed a community gymnasium adjacent to the proposed Club Facility; and WHEREAS, the Club has completed construction of the Club Facility as of May 31, 2000; and WHEREAS, Section 2(d)of the master lease agreement provides that City and Club will enter into a memorandum of understanding agreement ("the Agreement") to further define specific obligations of the parties with respect to common area maintenance and related matters, NOW, THEREFORE, BE IT RESOLVED BETWEEN CITY AND CLUB AS FOLLOWS: Section 1. The Club Facility. The Club shall utilize the Club Facility exclusively for the purpose of providing after- school recreational and other social programs pursuant to the Club's Articles of Incorporation, By-laws, and other relevant regulations as provided for in the master leasehold agreement between the parties. Expansion of permitted uses is governed by Section 2(c) of the master leasehold agreement. -1 06/07/00 Attachment 3 -Fhe Club's operating hours will be from 2:00 p.m. to 6:00 p.m. during school days and from 7:00 a.m. to 6:00 p.m, on holidays and during summer months. This schedule may be modified by the Club to accommodate school "minimum days" or other school activities. Youth activities will be conducted during evening hours and/or weekends and will vary depending on the activity. The Club will provide City with a monthly calender of operating hours and activities. Section 2. Usage And Sharing of Common Area Maintenance. City and Club shall mutually share in the maintenance of the following common areas as noted below: Parking areas; Outside entry area; Lobby area; Restrooms; and Gymnasium: A. Shared Parking Areas. Due to the limited amount of parking adjacent to the Community Center, Gymnasium and Club, the City staff and Club officials and members shall comply with the parking plan developed by the City's Parking Team, a copy of which City will provide to the Club. City shall be financially responsible for the maintenance and repair of the adjacent parking area that serves the City and Club Facility. B. Lobby Area. The Club shall be financially responsible for general maintenance and janitorial cleaning of the lobby area and for general wear and tear from usage of the Club Facility. Club shall keep the lobby area free and clear of storage or accumulation of any Club or Club members' material or items of equipment. C. Gymnasium. The Club shall comply with all City rules and regulations as identified in Administrative Policy 613 in regards to gymnasium use priorities, regulations, annual calender and fee schedule. City and Club agree that Club may provide concession services from the community room located within the Club Facility to users of the gymnasium, subject to prior approval of the City. City shall be responsible for gymnasium maintenance and cleaning. D. Outside Entry Areas. Club shall ensure that Club members' toys and equipment(e.g., skateboards and bicycles) are stored in appropriate receptacles in order to avoid unsafe or nuisance conditions or unsightly appearances. City shall be financially responsible for maintenance and repair of these outside areas. -2 06/07/00 • 0 E. Restrooms. Club and City shall work together to ensure that restrooms are clean, safe and well supervised. The Club shall be financially responsible for restroom maintenance during weekdays at the conclusion of the Club's normal business hours. City shall provide, at its expense,janitorial service during evening hours and Saturdays and Sundays. City and Club shall ensure that the restrooms are cleaned to the mutual satisfaction of both parties prior to the commencement of activities. F. Damages to Common Areas. The Club shall be financially responsible for any damage to the common areas arising directly out of the Club's usage of these areas. Section 3. Reciprocal Use of City and Club Facilities. A. Reciprocal Use in General. City and Club agree that there shall be reciprocal use of the Club Facility, City Community Center, Gymnasium, and Sports Park consistent with the provisions of this Agreement. B. Facility Application Process. Either party desiring to use the other's facilities shall first submit a timely facility use application. Approval shall be subject to the discretion of the party based upon such factors as scheduling conflicts, prioritization of programming and general impact on facility usage and programming. C. Costs. Club and City agree to mutually share certain designated Club and City facilities at no cost to either party. Club and City staffs shall develop a schedule of facilities and other appropriate organizational rules to implement this subsection. D. Special Events. Special events,including but not limited to,banquets, fundraisers, or other significant gatherings, which require additional City support efforts, shall be subject to the City's Administrative Policies 607, 610 and 613 on use of City facilities. Section 4. Coordination of Calenders for Usage of Facilities A. The Community Services Department shall prepare a Master Calender of Usage of Facilities. This Master Calender shall incorporate Club activities, including City approved additions thereto. The Master Calender shall include the Community Center, Sports Park, Gymnasium, Marco Forster Middle School, Del Obispo Elementary School and Kinoshita Elementary School activities. The Club shall receive a copy of the Master Calender and updated activities. B. The purpose of the Master Calender is to prevent over capacity and parking issues at the Community Center and Club Facility. 3- 06/07/60 • i C. The Club shall provide an annual calender of its activities to the Community Services Department prior to the City's preparation of its master calender. The annual calender shall include special activities, excursions, dances, sport leagues, after- hour activities or any activities that are beyond the normal operations of the Club. Any additional activities that are not on the submitted annual calender shall be submitted to the Community Services Department in advance of the activity. The Club agrees and understands that time is of the essence in submitting the calender to the City to insure successful coordination of events between the City, Club, School District, and other potential facility users. Section 5. Utilities. The Club shall be solely responsible for payment of use of utilities with respect to the Club Facility. Section 6. Additional Club Storage Area. City agrees to allow the Club to store Club equipment and other materials in the Westside area of the City Gymnasium as designated by City staff in exchange for Club's agreement to not construct a storage area within the Club Facility. The Club shall maintain the storage area in a clean and orderly manner at all times. Section 7. Insurance and Indemnification. The insurance and indemnity requirements of the parties are those as set forth in Section 7 of the master leasehold agreement. Section 8. Term and Termination. This Agreement shall remain in full force and effect until mutually rescinded or amended by the parties. In the event of a default in the performance of obligations underthis Agreement, the parties agree that there shall be an informal meet and confer process wherein there shall be an informal communication between the parties as to perceived default and how the default shall be resolved. If the matter is not resolved within ten (10)calender days or such extended period of time as agreed to by the parties, formal redress of a default shall be governed by Section 5 of the master leasehold agreement. -4- 06/07/00 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY OYSAN N CAPES RANO By: yor COCAMP LL BOYS&GIRLS CLUB OF CAPISTRANO VALLEY By: Ja es . Williams, Executive Director ATTEST: By: Cheryl Joh on, ity Clerk APPROVED AS TO FORM: By: _ Q, 1,1� John R. 9haw, City Attorney -5- 06/07/00 BASEBALL FIELD r--------- . ----, r----------, 1 � �*! -_ SQL' 1 • 1 :.BOYS'' a . .IRL. . CL I I 1 1 t I t I COMMUNITY GYMNASIUM CENTER I I I I I t , I �-__ ------------ -- --- t t xL.LiL_ - °-�° D ' REVISED MEMORANDUM OF UNDERSTANDING AGREEMENT This Memorandum of Understanding Agreement is entered into this day of July, 2008, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter "City"), and BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY, a non-profit corporation (hereinafter "Clubs"). RECITALS: WHEREAS, City and Clubs have entered into a real property lease dated June 1, 1999 ("the master leasehold agreement") providing for the lease of City land to the Clubs and the Clubs' construction of the Clubs Facility in accordance with the Site Plan attached to the lease agreement; and subsequently modified the lease on March 6, 2007 extending its term for 25 years from March 6, 2007, and permitting the construction of a 7,000 square foot Teen Center, and WHEREAS, City's Community Center Concept Plan included a 6,000 sq. ft. youth facility to be located on the site; and WHEREAS, City accepted Clubs' offer to build an expanded youth facility of approximately 11,000 sq. ft. (hereinafter referred to as the "Club's Facility) from private funds and entered into a master lease; and WHEREAS, the demised premises and building footprint are set forth in the Site Plan attached as Exhibit 'A" and incorporated herein by reference; and WHEREAS, City has constructed a community gymnasium adjacent to the proposed Clubs Facility; and WHEREAS, the Clubs has completed construction of the Clubs Facility as of May 31, 2000; and WHEREAS, Section 2 of the master lease agreement provides that City and Clubs will enter into a memorandum of understanding agreement ("the Agreement") to further define specific obligations of the parties with respect to common area maintenance and related matters, and WHEREAS, Planning Commission approval of the Teen Center on October 23, 2007 required certain addition requirements within the Memorandum of Understanding. AGREEMENT: NOW, THEREFORE, BE IT RESOLVED BETWEEN CITY AND CLUBS AS FOLLOWS (with modifications included).- Section ncluded):Section 1. The Clubs Facility. The Clubs shall utilize the Clubs Facility exclusively for the purpose of providing Page 1 of 6 Attachment 4 after-school recreational and other social programs pursuant to the Clubs' Articles of Incorporation, By-laws, and other relevant regulations as provided for in the master leasehold agreement between the parties. Expansion of permitted uses is governed by Section 2(c) of the master leasehold agreement. The Clubs' operating hours will be from 2:00 p.m. to 8:00 p.m. Monday thru Thursday, 2:00 p.m. to 10:00 p.m. on Fridays during school days and from 7:00 a.m. to 6:00 p.m. on holidays and during summer months. This schedule may be modified by the Clubs to accommodate school "minimum days" or other school activities. Youth activities will be conducted during evening hours and/or weekends and will vary depending on the activity. The Clubs will provide City with a monthly calendar of operating hours and activities. Section 2. Usage And Sharing of Common Area Maintenance. City and Clubs shall mutually share in the maintenance of the following common areas as noted below: Parking areas; Outside entry area; Lobby area; Restrooms; and Gymnasium: A. Shared Parking Areas. Due to the limited amount of parking adjacent to the Community Center, Gymnasium and Clubs, the City staff and Clubs officials and members shall comply with the parking plan developed by the City's Parking Team, a copy of which City will provide to the Clubs. 1. The Clubs will designate parking areas for teens within the Sports Park parking area or the adjoining school site parking. Teens will not be permitted to park in the main community center parking lot and will be required to register their vehicles with the Clubs to allow parking in authorized on-site (Sports Park) and off-site (Marco Forster and Del Obispo Schools) parking areas. City shall be financially responsible for the maintenance and repair of the adjacent parking area that serves the City and Clubs Facility. B. Lobby Area. The Clubs shall be financially responsible for general maintenance and janitorial cleaning of the lobby area and for general wear and tear from usage of the Clubs Facility. Clubs shall keep the lobby area free and clear of storage or accumulation of any Clubs or Clubs members' material or items of equipment. C. Gymnasium. The Clubs shall comply with all City rules and regulations as identified in Administrative Policy 613 in regards to gymnasium use priorities, regulations, annual calendar and fee schedule. City and Clubs agree that Clubs may provide concession services from the community room located within the Clubs Facility to users of the gymnasium, subject to prior approval of the City. Page 2 of 6 City shall be responsible for gymnasium maintenance and cleaning. D. Outside Entry Areas. Clubs shall ensure that Clubs members' toys and equipment (e.g., skateboards and bicycles) are stored in appropriate receptacles in order to avoid unsafe or nuisance conditions or unsightly appearances. City shall be financially responsible for maintenance and repair of these outside areas. E. Restrooms. The Clubs shall be financially responsible for restroom maintenance and janitorial services of the Clubs' restrooms in the gymnasium. City shall provide, at its expense, maintenance and janitorial service for the use of City restrooms in the gymnasium. F. Damages to Common Areas. The Clubs shall be financially responsible for any damage to the common areas arising directly out of the Clubs' usage of these areas. Section 3. Reciprocal Use of City and Clubs Facilities. A. Reciprocal Use in General. City and Clubs agree that there shall be reciprocal use of the Clubs Facility, City Community Center, Gymnasium, and Sports Park consistent with the provisions of this Agreement. B. Facility Application Process. Either party desiring to use the other's facilities shall first submit a timely facility use application. Approval shall be subject to the discretion of the party based upon such factors as scheduling conflicts, prioritization of programming and general impact on facility usage and programming. C. Costs. Clubs and City agree to mutually share certain designated Clubs and City facilities at no cost to either party. Clubs and City staffs shall develop a schedule of facilities and other appropriate organizational rules to implement this subsection. D. Special Events. Special events, including but not limited to, banquets, fundraisers, or other significant gatherings, which require additional City support efforts, shall be subject to the City's Administrative Policies 607, 610 and 613 on use of City facilities. Section 4. Coordination of Calendars for Usaqe of Facilities. A. The Community Services Department shall prepare a Master Calendar of Usage of Facilities. This Master Calendar shall incorporate Clubs activities, including City approved additions thereto. The Master Calendar shall include the Community Center, Sports Park, Gymnasium, Marco Forster Middle School, Del Obispo Page 3 of 6 Elementary School and Kinoshita Elementary School activities. The Clubs shall receive a copy of the Master Calendar and updated activities. B. The purpose of the Master Calendar is to prevent over capacity and parking issues at the Community Center and Clubs Facility. C. The Clubs shall provide an annual calendar of its activities to the Community Services Department prior to the City's preparation of its master calendar. The annual calendar shall include special activities, excursions, dances, sport leagues, after-hour activities or any activities that are beyond the normal operations of the Clubs. Any additional activities that are not on the submitted annual calendar shall be submitted to the Community Services Department two (2) months in advance of the activity. The Clubs agrees and understands that time is of the essence in submitting the calendar to the City to insure successful coordination of events between the City, Clubs, School District, and other potential facility users. Section 5. Utilities. A. The Clubs shall be solely responsible for payment of use of utilities with respect to the Clubs Facility. B. Water. In order to assess actual water usage the clubs shall install a water sub-meter to the main water service during construction of Teen Center. The Clubs shall be billed proportionately for water use. Section 6. Gymnasium Storage Area. The Clubs will vacate the storage space on the Westside area of the City Gymnasium. The new Teen Center will include additional storage space for the Clubs. Section 7. Special Teen Center Operational Requirements. A. The Clubs will designate a staff member to periodically walk the community center complex at a minimum of thirty (30) minute intervals or on an as needed basis to address loitering and littering issues during clubs operation. The designated site monitor will be on-duty after school to assure that loitering is prevented. Children waiting to be picked up by parents or siblings shall be required to wait inside the building. B. The Clubs will manage evening events (e.g. dances) as closed events with no entry to the event or leaving the event during the actual hours of the event. Arrival to the departure from the community center complex for teen center special events shall be restricted to specific times to prevent potential loitering which could lead to illicit activity. The Clubs will contact San Juan Capistrano Police Services to advise them of specific special events and activities. The Clubs may be required by Page 4 of 6 the City to hire private security in order to conduct special events. The requirement to hire private security will be based on the risk factor of the event and/or potential or past issues of an event. In addition, if there is a potential for a community disturbance that is unrelated to the event, the City shall require private security to assure the public safety of participants. C. The Clubs will train appropriate staff in the operational requirements of the Teen Center and special events. The Clubs staff is required to enforce approved operational policies and restrictions. Section 8. Insurance and Indemnification. The insurance and indemnity requirements of the parties are those as set forth in Section 7 of the master leasehold agreement. Section 9. Term and Termination. This Agreement shall remain in full force and effect until mutually rescinded or amended by the parties. In the event of a default in the performance of obligations under this Agreement, the parties agree that there shall be an informal meet and confer process wherein there shall be an informal communication between the parties as to perceived default and how the default shall be resolved. If the matter is not resolved within ten (10) calendar days or such extended period of time as agreed to by the parties, formal redress of a default shall be governed by Section 5 of the master leasehold agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. CITY OF SAN JUAN CAPISTRANO By: Mayor Joe Soto BOYS&GIRLS CLUBS OF CAPISTRANO VALLEY By: James Littlejohn, Executive Director ATTEST: APPROVED AS TO FORM: r , By: By: Meg Monahan, City Clerk Omar Sandoval, City Attorney Page 5 of 6 BASEBALL FIEND L sib � � I 0 1 I i I I I 1 ( I I 1 I " GYMNASIUM COMMUNITY I I CENTER I I I I I I I I I I 1 I 1 I 1 I 1 1 I I 1 f I 1 L_ I I 1 t t i I � � t AMENDMENT TO LEASE OF REAL PROPERTY AGREEMENT BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY (FORMERLY KNOWN AS THE BOYS & GIRLS CLUB OF CAPISTRANO VALLEY) This Amendment to Lease of Real Property Agreement is made this day of , 2008, by and between the City of San Juan Capistrano (hereinafter "Lessor"), and The Boys and Girls Clubs of Capistrano Valley (hereinafter "Lessee"), formerly known as the Boys& Girls Club of Capistrano Valley. Whereas, On June 1, 1999, Lessor and Lessee entered into a certain real property lease ("Real Property Lease") for certain property owned by the Lessor in the City of San Juan Capistrano for the purpose of allowing Lessee to construct a Boys & Girls Club center, and Whereas, On March 6, 2007 the Real Property Lease was further amended for the primary purpose of: (1) adding real property to the demised premises; and, (2) extending the term of the real property lease; (3) to include a term that construction of the Teen Center will be completed within 12 months following City conceptual project approval; and, Whereas, Lessor and Lessee desire to further amend the Real Property Lease for the primary purpose of revising the process of performance and default requirements, and NOW, THEREFORE, in consideration of the foregoing, and the covenants and conditions set forth below, Lessor and Lessee hereby mutually agree as follows: Section 5. Performance and Default Requirements. (a) Operational 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 Clubs and Teen Facility, then the City Council of City reserves the right to consider initiating a process for the possible assumption by the City of interim day-to-day Lessee Club management for the purpose of insuring successful performance of the Lessee's Club youth and teen 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. - 1 - Attachment 5 "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 incompliance with the Brown Act in review of the question put to it by the City Council. (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 t the Panel 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 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 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 with 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, the 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 there from with or without process of law. All other terms and conditions of the Real Property lease not amended herein shall remain in full force and effect. [SIGNATURE PAGE FOLLOWS] - 2 - IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written. CITY OF SAN JUAN CAPISTRANO By: Mayor Joe Soto Attest: By: Margaret R. Monahan City Clerk Approved as to form: By: Omar San oval City Attorney BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY By: James Littlejohn, Executive Director - 3 -