08-0715_BOYS & GIRLS CLUB OF CAPISTRANO VALLEY_D9_Agenda Report• • 7/15/2008
AGENDA REPORT D9
TO: Dave Adams, City Manager G- -
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
Capistrano Valley."
SITUATION:
name change to the "Boys & Girls Clubs of
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
Commissions 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
Reouirements. 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,
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
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REAL PROPERTY LEASE
This Real Property Lease (the "Agreement") is entered into this t' Sr day of
cZlYle� , 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.
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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 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 finther define specific obligations with respect to common
area maintenance.
Section 3. Lessee's Funding 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%) 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.
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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
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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:
0) 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.
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(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.
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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) Indemni . 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 (100%) 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
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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
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prior written consenfof 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
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fiirther 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 fust 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.
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0
0
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ATTEST:
By:
Cheryl Johns CCiVy Clerk
APPROVED AS TO FORM:
1
By. -----
John R. Shaw, C4 Attorney
CITY OF SAN JUAN CAPISTRANO
, Mayor
BOYS & GIRLS CLUB OF
CAPISTRANO VALLEY
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0
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 6"
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
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"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.
Attest: 4, �k
garet R. Monahan
Ci Clerk
I
ApproveAs to ff
By:
Jo ai
Ci Attorney
Jo
CITY OF SAN JUAN CAPISTRANO
By:
Ma r Sam aa4;zel --
vato
BOYS & GIRLS CLUBS OF
CAPISTRANO VALLEY
James Littlejohn, Executive Director
*PROPOSED TEEN
CENTER
NP mom
VIA ��O�iT 1YA
Exhibit A
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J0 • iK f•io
*PROPOSED TEEN
CENTER
NP mom
VIA ��O�iT 1YA
Exhibit A
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am�umftm
MEMORANDUM OF UNDERSTANDING AGREEMENT
This Memorandum of Understanding Agreement is entered into this ,at"tlay of
,�-TUAA_ 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.
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Attachment 3
The 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.
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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 parry 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 Calendars 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.
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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 calendertothe Cityto 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 B. 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) 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- osm7roo
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
ATTEST:
i
APPROVED AS TO FORM:
By: Q qe�
John R. Shaw, City Attorney
CITY OF SAN J YCAPIS RANO
01
By:02
yor CO CAMP LL
BOYS & GIRLS CLUB OF CAPISTRANO VALLEY
By:
Ja es . Williams, Executive Director
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06107/00
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EXHIBIT A
0 0
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 1. The Clubs Facility.
The Clubs shall utilize the Clubs Facility exclusively for the purpose of providing
Page 1 of 6
Attachment 4
0 0
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
•
11
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 Usage 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
0 0
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
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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.
rFARr*15
By:
Meg Monahan, City Clerk
CITY OF SAN JUAN CAPISTRANO
M
Mayor Joe Soto
BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY
M
James Littlejohn, Executive Director
APPROVED AS TO FORM:
By: Ucyati �ail" 1)(k
Omar Sandoval, City Attorney
Page 5 of 6
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Page 6 of 6
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EXHIBIT A
0
0
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
0 0
"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.
(S) 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
0
Attest:
Margaret R. Monahan
City Clerk
Mayor Joe Soto
Approved as to form:
By:
Omar Sandoval
City Attorney
BOYS & GIRLS CLUBS OF
CAPISTRANO VALLEY
James Littlejohn, Executive Director
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