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21-1102_CAPISTRANO UNIFIED SCHOOL DISTRICT_Agenda Report_E14City of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Benjamin Siegel, City Manager SUBMITTED BY: Charlie View, Assistant City Manager PREPARED BY: Lindsey Stigall, Senior Management Analyst DATE: November 2, 2021 SUBJECT: First Amendment to the Use Agreement with Capistrano Unified School District for Use of the Multipurpose Facility at Marco Forster Middle School; and Site License and Use Agreement with The Victory Way as Operator of the Multipurpose Facility at Marco Forster Middle School, Located at 3 Via Positiva RECOMMENDATION: 1.Approve and authorize the City Manager to execute the First Amendment to the Use Agreement with Capistrano Unified School District for use of the Multipurpose Facility at Marco Forster Middle School; and, 2. Approve and authorize the City Manager to execute the Site License and Use Agreement with The Victory Way as operator of the Multipurpose Facility at Marco Forster Middle School, located at 3 Via Positiva. EXECUTIVE SUMMARY: In 1999, the City and Capistrano Unified School District (CUSD) entered into an agreement that allowed for the development and shared use of a portion of Marco Forster Middle School, adjacent to the City’s Sports Park. The subject facility consists of a fenced, open-air arena with lighting and storage, along with access to school restrooms and parking. The original concept for the site allowed the City to work with a third-party operator to construct a roller hockey rink along with related recreational improvements serving both the public and school district, while also allowing the private operator to manage programming and maintenance. The current agreement with CUSD is set to expire on November 14, 2021, and staff is recommending that the City Council approve an amendment that would extend the agreement with CUSD for up to twenty years, and approve a new agreement with the current operator to allow for continued multi-sport programming for youth and adults. 11/2/2021 E14 City Council Agenda Report November 2, 2021 Page 2 of 4 DISCUSSION/ANALYSIS In light of the pending expiration of the ten-year Joint Facility Use Agreement with CUSD, staff prepared an amendment extending the term by ten years, with an additional ten-year option (Attachment 1). At the request of CUSD, the proposed amendment removes allowance for CUSD’s use of the facility and relieves CUSD of all maintenance responsibilities. The amendment also identifies the site as a “Multipurpose Facility” rather than a roller hockey rink to reflect its actual current use. The CUSD Board of Trustees is scheduled to consider approval of the proposed First Amendment at its November 3 Board Meeting. The facility is currently operated by Victory Sports pursuant to a Site License and Use Agreement that has been in place since 2014. The agreement with Victory Sports expires on November 13, 2021, concurrent with expiration of the City’s agreement with CUSD. On August 16, 2021, staff issued a Request for Proposals (RFP) to solicit potential operators for the facility. A key aspect of the RFP was to encourage operations that targeted a variety of uses and activities. Two proposals were received: Southern California Blues Soccer Club and The Victory Way (formerly Victory Sports, the current operator). The Southern California Blues Soccer Club (Blues) proposal focused on its core soccer activities while also expressing an intention to expand to other sports and recreational activities. The proposal also included general references to future investments but did not include specific information on planned investments. The Blues’ proposed a ten-year agreement at $1,500 per month plus 20% of gross monthly revenues. The Victory Way (Victory) proposal focused on continuing the current multi-use operation and expanding the types of activities and operating hours. Currently, Victory reserves approximately 20% of the available hours for lacrosse use, and programs the remaining 80% of available hours for various groups and activities. The Victory proposal also included more specific information on its intended capital investment during the term of the agreement. Victory proposed a ten-year term at $1,000 per month plus 10% of gross monthly revenue. A panel comprised of City staff reviewed the proposals and interviewed both proposers. Based on the overall quality of the proposal, including a commitment to additional investment and proven track record of operating an inclusive community facility, staff identified Victory as the best candidate for long-term operation of the facility. In subsequent conversations, Victory agreed to a ten-year term with a two-tier payment schedule: $1,000 per month plus 10% of gross monthly revenue for the first five years, increasing to $1,500 per month plus 10% of gross monthly revenue for the remaining five years of the agreement. On September 20, 2021, staff recommended the Victory proposal to the Parks, Equestrian and Community Services Commission (Commission). The Commission is recommending that the City Council approve a Site License and Use Agreement with Victory for a ten-year term (Attachment 2). City Council Agenda Report November 2, 2021 Page 3 of 4 Victory has been a successful operator of the Multipurpose Facility since 2014, offering a robust multi-sport curriculum and hosting tournaments, camps, and clinics for youth and adults. During the term of the existing agreement, Victory funded enhancements to the facility including synthetic turf, fencing, netting, paint, scoreboard, bleachers, and sound and security system. During the proposal interview process, Victory representatives asserted their long-term commitment to innovative programming concepts to engage all members of the community. Victory also discussed plans for future enhancements to the site such as turf replacement, concrete paint/refinishing, repairs to the portable office, sunshade, netting replacement, new signage and repair to existing light posts and fixtures. A solar energy concept is also being proposed and would require further review by the City and CUSD. All approved upgrades would remain as part of the facility when the operator vacates the premises, without any cost to the City. FISCAL IMPACT: Under the proposed Site License and Use Agreement, Victory would pay the City $1,000 per month plus 10% of the gross revenue per month for the first five years of the agreement, and would increase the base payment to $1,500 per month plus 10% of the gross revenue per month for the remaining five years of the agreement. Victory would be responsible for all maintenance costs including utilities and janitorial services. Projected costs for proposed enhancements are listed below. All costs, including permitting, are the responsibility of Victory. IMPROVEMENT ESTIMATED COST Turf $80,000 Concrete refinishing/paint $500 Office repairs $3,000 Sunshade *Proposed Eagle Scout Project Netting $1,500 Signage $1,000 Lighting $2,000 TOTAL $88,000 Consistent with the current agreement between the City and CUSD, the City would pay CUSD 20% of the annual revenue received from the operator. ENVIRONMENTAL IMPACT: The recommended actions to approve the First Amendment to the Use Agreement with CUSD and Site License and Use Agreement with Victory for the existing Multipurpose Facility at Marco Forster Middle School are exempt from CEQA per Section 15061(b)(3), the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Approval of the agreements for use of the Multipurpose Facility at Marco Forster Middle School is not an activity with potential to cause significant effect on the environment and therefore exempt from CEQA. City Council Agenda Report November 2, 2021 Page 4 of 4 PRIOR CITY COUNCIL REVIEW:  On December 16, 2014, the City Council approved a Site License and Use Agreement with Victory Sports.  On September 15, 2011, the City Council approved a Joint Facility Use Agreement with Capistrano Unified School District for the Roller Hockey/ Multipurpose Facility located at Marco Forster Middle School, 3 Via Positiva.  On May 18, 1999, the City Council approved a Joint Development and Joint Use Agreement with Capistrano Unified School District for of the Multipurpose Facility; and a License Agreement with Revolution Hockey, LLC to construct and operate the facility. PRIOR COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:  On September 20, 2021, the Parks, Equestrian and Community Services Commission recommended City Council approval of a Site License and Use Agreement with The Victory Way.  On November 17, 2014, the Parks, Recreation and Senior Services Commission forwarded to the City Council a recommendation of approval of the Site License and Use Agreement to Victory Sports. NOTIFICATION: Capistrano Unified School District, John Forney Southern California Blues Soccer Club, Robert Mulligan The Victory Way, Glen Miles ATTACHMENT: Attachment 1  Draft First Amendment to the Use Agreement (CUSD) Attachment 2  Draft Site License and Use Agreement (The Victory Way) 005791.00202 34798224.2 FIRST AMENDMENT TO THE USE AGREEMENT FOR THE MARCO FORSTER MIDDLE SCHOOL MULTIPURPOSE FACILITY BETWEEN CAPISTRANO UNIFIED SCHOOL DISTRICT AND CITY OF SAN JUAN CAPISTRANO This First Amendment (Amendment) to the Use Agreement for the Marco Forster Middle School Multipurpose Facility1 (Agreement) is hereby made and entered into to be effective on the day of , 20 , by and between the City of San Juan Capistrano (CITY) and the Capistrano Unified School District (CUSD). The City and the CUSD shall be collectively referred to herein as the “Parties” and individually as a “Party.” RECITALS: 1.Education Code §10900 et seq. authorizes CUSD to organize, promote and conduct programs for community recreation, and to cooperate in providing community recreation programs and facilities. 2.CUSD owns and operates Marco Forster Middle School (“MFMS”), which is located at 25601 Camino del Avion, San Juan Capistrano, California, and which has facilities that are suitable for use for community recreation programs. 3.On May 25, 1999, CUSD and CITY entered into a Joint Development and Joint Use Agreement for the development, construction, and operation of a roller hockey/multipurpose facility located at 3 Via Positiva, on the property of M FMS. The City as a result of the 1999 Joint Use Agreement, constructed the roller hockey/ multipurpose facility on the MFMS property. 4.On November 15, 2011, CUSD and CITY entered into the “Joint Facility Use Agreement” between Capistrano Unified School District and City of San Juan Capistrano” (Agreement) for CITY to coordinate, schedule and conduct community recreation programs in the multipurpose facility, located at 3 Via Positiva, on the property of MFMS, during times when it is not being used for school purposes, attached hereto Exhibit “A” and incorporated by this reference as though fully set forth herein. 5.CITY and CUSD desired to extend and amend the Joint Facility Use Agreement between Capistrano Unified School District and City of San Juan Capistrano. The Parties have entered into this Amendment to amend, restate and modify the terms of the Agreement including, but not limited to, changing the title of the Agreement, to 1 The original title of the Agreement was “Joint Facility Use Agreement Between Capistrano Unified School District and City of San Juan Capistrano,” this Amendment changes the name of the Agreement to “Use Agreement for the Marco Forster Middle School Multipurpose Facility between Capistrano Unified School District and City of San Juan Capistrano.” 2 005791.00202 34798224.2 clarify the hours of operation, change the term ‘roller hockey/multipurpose facility’ to Multipurpose Facility, modify the maintenance obligations of the Parties, and restructure the terms of the Agreement. AGREEMENT: NOW, THEREFORE, in consideration of the mutual promise, covenants and conditions herein contained, the Parties hereby enter into this First Amendment to amend the Agreement to read as follows: 1.The Title of the Agreement “Joint Facility Use Agreement Between Capistrano Unified School District and City of San Juan Capistrano,” is hereby amended to read as follows: “USE AGREEMENT FOR THE MARCO FORSTER MIDDLE SCHOOL MULTIPURPOSE FACILITY BETWEEN CAPISTRANO UNIFIED SCHOOL DISTRICT AND CITY OF SAN JUAN CAPISTRANO.” 2.The term “roller hockey/multipurpose facility” shall be replaced with the term “Multipurpose Facility” throughout the Agreement. 3.Section 1 “Purpose of the Agreement” is hereby amended in its entirety to read as follows: “1. Purpose of the Agreement. The purpose of this Agreement is for the CITY and CUSD to work together to provide for the operation and public use of the Multipurpose Facility for community recreation programs.” 4.Section 2 “Use of MFMS by the CITY” is hereby amended it its entirety to read as follows: “2. Use of Multipurpose Facility by the CITY. a.CUSD grants to CITY the right to control, coordinate and schedule the use of the multipurpose facility (Multipurpose Facility), including CUSD restrooms and CUSD parking lot, in accordance with this Agreement. CUSD shall make the Multipurpose Facility available to the CITY for the stated purposes of this Agreement, CUSD shall take no actions which will interfere with or inhibit the use of the Multipurpose Facility, including, but not limited to, the construction of temporary or permanent buildings on the area used for the Multipurpose Facility. b.Parties agree that CITY may in its sole and absolute discretion may contract with a Third Party to be responsible for the operation of the Multipurpose Facility for the CITY (Third Party Operator). The CITY entering into said Third Party Agreement shall not be considered an assignment of this Agreement. c.Hours. i.For purposes of this Agreement, school hours are defined to be from 8:00 a.m. to 3:30 p.m., Monday through Friday, for each day that school at MFMS is in session (School Hours). It is 3 005791.00202 34798224.2 understood and agreed that the starting and ending times for School Hours may change from school year to school year, and that for each school year, the actual starting and ending times, will be those hours that school classes start and end as determined f or each school year by CUSD. CUSD, at its sole discretion, may extend the scope of School Hours by as much as 30 minutes before the start time of classes or after the end time of classes, or both, in order to allow sufficient time for students to arrive at or leave the premises before the CITY commences its use of Multipurpose Facility. ii.The Multipurpose Facility, including parking and restrooms, is available for CITY use Monday through Friday from 3:30 pm to 9:30 pm, Saturday from 8:00 am to 9:30 pm and Sun day from 9:00 am to 9:00 pm (Afternoon/Weekend Hours). iii.The Multipurpose Facility, including restrooms, is available for CITY use for athletic training or bootcamps, Monday through Friday from 5:00 am to 7:00 am (Morning Hours). No access to CUSD parking is permitted for Morning Hour use. On- street or City parking lots will be available during Morning Hour use. No competitive sports shall be permitted during Morning Hours. CUSD shall be able to terminate these Morning Hours if they become disruptive to school operation upon five (5) days written notice to the City. 5.Section 3 “Scheduling the Use of the Roller Hockey/Multipurpose Facility is hereby deleted its entirety and amended to read as follows: “3. Reserved.” 6.Section 4 “Maintenance of the Roller Hockey/multipurpose Facility” is hereby amended in its entirety to read as follows: “4. Maintenance and Modifications of the Multipurpose Facility a.CITY shall be responsible for and pay all necessary costs incurred for any maintenance and custodial services, and/or repairs for damages resulting from the use of Multipurpose Facility. b.CITY shall pay all electrical utility costs for the Multipurpose Facility.” c.Modifications of Multipurpose Facility. CITY shall advise CUSD of any proposed modifications of the Multipurpose Facility. CITY shall be able to make any modifications by right that do not require approval of the State Architects Board. Should any proposed modifications require approval of the State Architects Board, CUSD shall by process the application with the State Architects Board at the cost of the City. 7.Section 5 “Charges for Use of the Roller Hockey/Multipurpose Facility” is hereby amended in its entirety to read as follows: 4 005791.00202 34798224.2 “5. Revenue Sharing. Should CITY contract with a Third Party Operator for the operation of Multipurpose Facility, then CITY agrees to annually pay CUSD twenty percent (20%) of the amount CITY is to contractually receive the Third Party Operator.” 8.Section 6 “Term” is hereby amended in its entirety to read as follows: “6. Term. The term of this Agreement shall be for ten (10) years commencing on November 16, 2021. The City shall have the right to exercise an option to renew the Agreement for another ten (10) years by giving advance written notice of the option renewal to CUSD not later than six (6) months prior to the end of the initial term. This Agreement may be terminated without cause by either Party with one hundred eighty days (180) days prior written notice to the other Party. Upon termination of the Agreement the Multipurpose Facility becomes the sole property of District and City shall have no further right to utilize the Multipurpose Facility. The CITY shall incorporate into any Third Party Operator Agreement for the Multipurpose Facility that such Agreement may be terminated with one hundred fifty days (150) days prior written notice from the CITY.” 9.Section 8 is hereby amended in its entirety to read as follows: “8. Indemnification and Insurance. a.CITY shall save and hold CUSD, as well as its officers, employees, agents, and volunteers, harmless to the extent authorized by law from any or all claims or causes of action for injury of persons, including death, or damages to property resulting from or which may arise by reason of any dangerous or defective condition of equipment or other improvements installed or constructed by CITY on property owned by CUSD, or a failure to maintain said equipment and improvements installed or constructed by CITY in a safe condition or which might arise as a result of acts or omissions of employees of CITY. CITY shall maintain, at all times this Agreement is in force, general liability insurance, self- insurance or liability coverage through a self-insurance pool of not less the One Million Dollars ($1,000,000). b.Third Party Operator Indemnification. To the fullest extent permitted by law, CITY shall require any Third Party Operator to agree to indemnify, defend, and hold harmless CUSD and CUSD’s board members, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Third Party Operator, Third Party Operator's agents, officers, employees, subcontractors, or independent contractors hired by Third Party Operator in connection with their collective use of Multipurpose Facility. The only exception to Third Party Operator's responsibility to protect, 5 005791.00202 34798224.2 defend, and hold harmless CUSD, is due to the negligence, recklessness and/or wrongful conduct of the CITY or CUSD, or any of their respective its elective or appointive boards, board members, officers, agents, or employees. The Third Party Operator hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Third Party Operator. c.Third Party Operator Insurance. The CITY shall require that any Third Party Operator contracted by the CITY for the use of the Multipurpose Facility, at its own cost and expense, shall carry, maintain for the duration of the Third Party Operator Agreement, and provide proof thereof that is acceptable to the CITY and CUSD, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the CITY and CUSD. Third Party Operator shall not allow any subcontractor to commence work on or use under any subcontract until all insurance required of the Third Party Operator has also been obtained for the subcontractor. Insurance required herein shall be provided by Insurers in good standing with the State of California and having a minimum Best’s Guide Rating of A Class VII or better. Such insurance shall comply with the following: i.Comprehensive General Liability. Third Party Operator shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than four million dollars per occurrence ($4,000,000.00) / five million dollars general aggregate, combined single limit coverage for risks associated with the work contemplated by this agreement. ii.Comprehensive Automobile Liability. Third Party Operator shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non-owned vehicles in an amount not less than one million dollars ($1,000,000.00) combined single limit. iii.Sexual Abuse & Molestation Liability. Third Party Operator shall maintain in full force and effect Sexual Abuse and Molestation Liability coverage in an amount not less than one million dollars ($1,000,000) per occurrence / two million dollars ($2,000,000) general aggregate. Coverage may be provided as part of general liability coverage, or as a separate policy. iv.Worker’s Compensation. 6 005791.00202 34798224.2 If Third Party Operator intends to employ employees to perform services under this Agreement, Third Party Operator shall obtain and maintain, during the term of this Agreement, Worker’s Compensation in the statutory amount as required by state law and Employer’s Liability Insurance in the minimum amount of one million dollars ($1,000,000) per accident or disease. Third Party Operator shall require its workers’ compensation insurer to endorse the policy to waive subrogation in favor of the CITY. v.Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement or use of the Multipurpose Facility, Third Party Operator shall submit the insurance certificates, including the deductible or self-retention amount, and an additional insured endorsement naming the CITY and CUSD, their officers, employees, agents, and volunteers as additional insured as respects each of the following: Liability arising out of activities performed by or on behalf of T h i r d P a r t y Operator, including the insured's general supervision of Third Party Operator; products and completed operations of Third Party Operator premises owned, occupied or used by Third Party Operator; or automobiles owned, leased, hired, or borrowed by Third Party Operator. The coverage shall contain no special limitations on the scope of protection afforded the CITY and CUSD, their officers, employees, agents, or volunteers. All coverage provided by Third Party Operator shall be primary and any insurance or self- insurance procured or maintained by CITY and CUSD shall not be required to contribute. vi.Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage's reduced, until after thirty (30) days' written notice is given to the CITY and CUSD, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 10. Except as otherwise specifically provided herein, all other provisions of the Agreement shall remain in full force and effect. [SIGNATURE PAGE TO FOLLOW] 7 005791.00202 34798224.2 IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first hereinabove written. “CITY” CITY OF SAN JUAN CAPISTRANO By Benjamin Siegel, City Manager “CUSD” CAPISTRANO UNIFIED SCHOOL DISTRICT By Superintendent or Designee ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Jeffrey Ballinger, City Attorney JOINT FACILITY USE AGREEMENT BETWEEN CAPISTRANO UNIFIED SCHOOL DISTRICT AND CITY OF SAN JUAN CAPISTRANO THIS JOINT FACILITY USE AGREEMENT ("Agreement") is made and entered into to be effective on the 1C,4' VA day of ^ o,E_yi y-, 2011, by and between the City of San Juan Capistrano ("CITY") and the Capistrano Unified School District ("CUSD"). RECITALS: 1. Education Code §10900 et sec. authorizes CUSD to organize, promote and conduct programs for community recreation, and to cooperate in providing community recreation programs and facilities. 2. CUSD owns and operates Marco Forster Middle School ("MFMS"), which is located at 25601 Camino del Avion, San Juan Capistrano, California, and which has facilities that are suitable for use for community recreation programs. 3. On May 25, 1999, CUSD and CITY entered into a Joint Development and Joint Use Agreement for the development, construction, and operation of a roller hockey/multipurpose facility located at 3 Via Positiva, on the property of MFMS, which has expired. The CITY, as a result of the 1999 Joint Use Agreement, constructed the roller hockey/multipurpose facility on the MFMS property. 4. CITY desires to coordinate, schedule and conduct community recreation programs on the roller hockey/multipurpose facility, located at 3 Via Positiva, on the property of MFMS, during times when it is not being used for school purposes. EXHIBIT A 5. CITY and CUSD desire to enter into this Agreement to provide public use of the roller hockey/multipurpose facility at MFMS. AGREEMENT: NOW, THEREFORE, in consideration of the mutual promise, covenants and conditions herein contained, the parties hereto agree as follows: 1. Purpose of the Agreement The purpose of this Agreement is for the CITY and CUSD to work together to provide for the operation and/or public use, including use by community organizations, of the roller hockey/multipurpose facility, and to coordinate and schedule those uses along with the uses by the CITY and CUSD. 2. Use of MFMS by the CITY. a. CUSD shall grant to the CITY the following: i. The right to operate, coordinate, schedule and/or allow the operation and/or public use of the roller hockey/multipurpose facility during non- school (tours; and ii. Maintenance responsibilities for the roller hockey/multipurpose facility as set forth in Section 4(b) below. b. During the term of this Agreement, CUSD shall make the roller hockey/multipurpose facility available to the CITY for the stated purposes of this Agreement, CUSD shall take no actions which interfere with or inhibit the use of the roller hockey/multipurpose facility, including, but not limited to, the 2 construction of temporary or permanent buildings on the area used for the roller hockey/multipurpose facility. 3. Scheduling the Use of the Roller Hockey/Multipurpose Facilit . a. The CITY shall be responsible for and have the authority to control, coordinate, and/or schedule all use of the roller hockey/multipurpose facility during non- school hours. b. For purposes of this Agreement, school hours are defined to be from 8:00 a.m. to 3:30 p.m., Monday through Friday, for each day that school at MFMS is in session. It is understood and agreed that the starting and ending times for school hours may change from school year to school year, and that for each school year, the actual starting and ending times, will be those hours that school classes start and end as determined for each school year by CUSD. CUSD, at its sole discretion, may extend the scope of school hours by as much as 30 minutes before the start time of classes or after the end time of classes, or both, in order to allow sufficient time for students to arrive at or leave the premises before the CITY commences its use of the roller hockey/multipurpose facility. c. CUSD shall have the exclusive use of the roller hockey/multipurpose facility during school hours. d. The CITY shall control, coordinate, and/or schedule all non-school hours use of the roller hockey/multipurpose facility, including use by CUSD and MFMS. The CITY shall establish a system to provide for the control, coordination and/or scheduling of the roller hockey/multipurpose facility, including controls and/or procedures for reserving the use of the roller hockey/multipurpose facility, providing supervision and assigning priorities for use of the roller 3 hockey/multipurpose facility. CUSD will be given first priority of use provided CUSD gives advance written notice to CITY in compliance with the CITY's controls and/or procedures at the time of the notice, and all others will be prioritized according to the CITY's controls and/or procedures. Use priority for all groups Is based on facility availability. Additionally, the CITY shall schedule the use of the roller hockey/multipurpose facility to allow for maintenance/renovation purposes. e. The CITY shall insure that, as to the operation and/or reservation of use of the roller hockey/multipurpose facility by persons and organizations, each such person or organization shall have in effect at the time of use of the roller hockey/multipurpose facility, general liability insurance coverage in the amount of at least $1,000,004 per occurrence, and that the CITY and CUSD are named as additional insured on the applicable insurance policies. 4. Maintenance of the Roller Hockey/multipurpose Facility i. CUSD shall be responsible for and pay all costs Incurred for any necessary maintenance or custodial services, and/or repairs for damages (if any) resulting from CUSD's use of the roller hockey/multipurpose facility. ii. CITY shall be responsible for and pay all costs incurred for any necessary maintenance or custodial services, and/or repairs for damages (if any) resulting from the scheduled public use of the roller hockey/multipurpose facility. 5. Char es for Use of the Roller Hockey/Multipurpose Facili . The CITY may charge the persons and organization that operate and/or use the roller hockey/multipurpose facility during non-school hours an operations user fee, or charge for 4 such use as set by contract or fee resolution of City Council. The purpose of this fee is for the CITY to recover the costs it incurs in scheduling the use of and maintaining the roller hockey/multipurpose facility. CUSD shall not be charged for its use of the roller hockey/multipurpose facility either for use during school hours or for use during non-school hours. CUSD shall not charge either the CITY or the public for the use of the roller hockey/multipurpose facility during non-school hours. In the event CITY contracts with an operator to manage the use of the roller hockey/multipurpose facility, CITY agrees to annually pay CUSD twenty percent (20%) of the amount CITY is to contractually receive from CITY's operator of the facility. 6 Term. The term of this Agreement shall be for eight (8) years commencing on the date this Agreement is fully executed by the City and CUSD. The City shall have the right to exercise an option to renew the Agreement for another two (2) years by giving advance written notice of the option renewal to CUSD not later than six (6) months from the end of the initial term. This Agreement may be terminated without cause by either party with one hundred eighty 180) days prior written notice to the other party. 7. Cooperation of the Parties. The CITY and CUSD shall cooperate and take all actions necessary to achieve the purposes of this Agreement. Each party shall designate a particular person to be responsible for the performance of that party's duties and responsibilities pursuant to this Agreement. 8. Indemnification and Insurance. a. CITY shall save and hold CUSD, as well as its officers, employees, agents, and volunteers, harmless to the extent authorized by law from any or all claims or causes of action for injury of persons, including death, or damages to property resulting from or which may arise by reason of any dangerous or defective 5 condition of equipment or other improvements installed or constructed by CITY on property owned by CUSD, or a failure to maintain said equipment and improvements installed or constructed by CITY in a safe condition or which might arise as a result of acts or omissions of employees of CITY. CITY shall maintain, at all times this Agreement is in force, general liability insurance, self- insurance or liability coverage through a self-insurance pool of not less the One Million Dollars ($1,000,000). b. CITY shall require any CITY Operator to acquire and maintain at all times general liability insurance with a combined single limit of not less than three million dollars ($3,000,000.00) per occurrence for property damage and personal injury with respect to all activities of the CITY's Operator in the operations of the roller hockey/multipurpose facility and shall require the CITY Operator to name the CITY and CUSD as additional insureds. c. CUSD shall save and bold CITY harmless to the extent authorized by law from any or all claims or causes of action for injury of persons, including death, or damages to property resulting from or which may arise by reason of dangerous or defective condition of equipment or other improvements installed or constructed by CUSD on property owned by CUSD, or a failure to maintain said equipment and improvements installed or constructed by CUSD in a safe condition or which might arise as a result of acts or omissions of employees of CUSD. CUSD shall maintain, at all times this Agreement is in force, general liability insurance, self-insurance or liability coverage through a self-insurance pool of not less than One Million Dollars ($1,000,000). d. The CITY and CUSD each agree to provide thirty (30) days' written notice to the other party if it proposes any substitution, change, or other modification of the 6 condition of equipment or other improvements installed or constructed by CITY on property owned by CUSD, or a failure to maintain said equipment and improvements installed or constructed by CITY in a safe condition or which might arise as a result of acts or omissions of employees of CITY. CITY shall maintain, at all times this Agreement is in force, general liability insurance, self- insurance or liability coverage through a self-insurance pool of not less the One Million Dollars ($1,000,000). b. CITY shall require any CITY Operator to acquire and maintain at all times general liability insurance with a combined single limit of not less than three million dollars ($3,000,000,00) per occurrence for property damage and personal injury with respect to all activities of the CITY's Operator in the operations of the roller hockey/multipurpose facility and shall require the CITY Operator to name the CITY and CUSD as additional insureds. c. CUSD shall save and hold CITY harmless to the extent authorized by law from any or all claims or causes of action for injury of persons, including death, or damages to property resulting from or which may arise by reason of dangerous or defective condition of equipment or other improvements installed or constructed by CUSD on property owned by CUSD, or a failure to maintain said equipment and improvements installed or constructed by CUSD in a safe condition or which might arise as a result of acts or omissions of employees of CUSD. CUSD shall maintain, at all times this Agreement is in force, general liability insurance, self-insurance or liability coverage through a self-insurance pool of not less than One Million Dollars ($1 ,000,000). d. The CITY and CUSD each agree to provide thirty (30) days' written notice to the other party if it proposes any substitution, change, or other modification of the 6 aforementioned insurance coverage which will result in a decrease in the scope or the amount of such coverage. 9.Notices. Any notices to be given hereunder by either party to the other in writing may be effected either by personal delivery or by mail. Mailed notices shall be addressed to the address of the parties to be notified which appears below, but each party may change its address by written notice given in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated and received as of ten (10) calendar days following the date of mailing of the notice. CITY: Attn: Manager, Community Services Department City of San Juan Capistrano 25925 Camino del Avion San Juan Capistrano, CA 92675 CUSD: Attn: Executive Director, Facilities Capistrano Unified School District 33122 Valle Road San Juan Capistrano, CA 92675 10. Entire Agreement. This Agreement supersedes any and all agreements, either oral or written, between the parties hereto with respect to the subject matter of this Agreement, and contains all of the covenants and agreements between the parties with respect to this matter. Each party to the Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made with regard to this matter by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise regarding this matter not contained in this Agreement shall be valid or 7 binding. Any modification or amendment of this Agreement will be effective only if it is in writing and signed by both parties to this Agreement. 11. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California. Any legal action in which enforcement of the terms and conditions of this Agreement is requested, or in which it is alleged that a breach of this Agreement has taken place, shall be filed and prosecuted in the County of Orange, California. 12. Breach of Agreement. If either party defaults in the performance of any of the terms or conditions of this Agreement, it shall have thirty (30) days after service upon it of written notice of such default in which to cure the default by rendering a satisfactory performance. In the event that the defaulting party fails to cure its default within such period of time, the non-defaulting party shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice to any other remedy to which it may be entitled at law, in equity, or under this Agreement. The failure of a party to object to any default in the performance of the terms and conditions of this Agreement shall not constitute a waiver of either that term or condition or any other term or condition of this Agreement. 13. Attorneys' Fees. If any legal proceeding, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which shall be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. 14. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full 8 force without being impaired or invalidated in any way, to the extent that the invalidity or unenforceability does not impair the application of this Agreement as intended by the parties. 15. Successors and Assigns. The terms and conditions of this Agreement shall be binding on the successors and assigns of the parties to this Agreement. SIGNATURE PAGE TO FOLLOW] 9 IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first hereinabove written. CITY" CITY OF SAN JUAN CAPISTRANO B All vato, ffyor CUSD" CAPISTRANO UNIFIED SCHOOL DISTRICT By Superinte ent or De ne AT "E I Mari rri , ity Clerk APPROVED AS TO FORM: 4 LL j Omar 8ndov .l,'City Attorney 10 1 SITE LICENSE AND USE AGREEMENT This License Agreement (“Agreement”) is made this ____day of _________ 2021, ("Effective Date"), by and between the City of San Juan Capistrano "City", and ______________("Operator"). RECITALS: WHEREAS, in 2011, the City entered into a Joint Facility Use Agreement with the Capistrano Unified School District (CUSD) for the use of the Multipurpose Facility, located at 3 Via Positiva, in the City of San Juan Capistrano, County of Orange, State of California ("Facility"). The Facility is located on the grounds of Marco Forster Middle School and as further depicted in Exhibit "A", attached hereto and incorporated herein by reference; and, WHEREAS, the City desires to make the Facility available to the Operator to maintain, and operate, the Facility, under the terms and conditions set forth in this Agreement; and WHEREAS, Operator is qualified by virtue of experience, training, education, and expertise to accomplish the services required under this Agreement. NOW, THEREFORE, BE IT MUTUALLY RESOLVED BETWEEN CITY AND OPERATOR AS FOLLOWS: SECTION 1. GRANT OF LICENSE City hereby grants a license to Operator to utilize the Facility at 3 Via Positiva, for the purpose of operating and maintaining the Facility, which is the subject of this Agreement and is subject to the conditions set forth in this Agreement. SECTION 2. SCOPE OF WORK The scope of work to be performed by the Operator shall consist of those tasks as set forth in Exhibit "B",attached hereto and incorporated herein by this reference. To the extent that there are any conflicts between the provisions described in Exhibit "B"and those provisions contained within this Agreement, the provisions in this Agreement shall control. SECTION 3. REFURBISHING OF THE FACILITY 3.1.The refurbishing of the Facility shall be performed in strict accordance with the upgraded list, attached as Exhibit “C – Chapter 3.” 3.2. Operator shall coordinate with CUSD and the City during the refurbishing phase so as to avoid an interruption in CUSD functions at Marco Forster Middle School. 2 3.3.Operator shall provide a schedule of refurbishing activity which shall be reviewed and approved by the City and CUSD prior to the commencement of the work. 3.4. All approved permitted upgrades to the Facility will be deemed as part of the Facility and shall remain part of the facility when the Operator vacates the premises, all without any cost to the City. 3.5.Operator shall be solely responsible for providing all utilities to the Facility. 3.6.If required by California law, Operator shall provide a payment and performance bonds to the City prior to commencing the refurbishing activities. The penal sum of the bonds shall be equal to the value of the refurbishing activities. The bonds must be provided by an admitted surety insurer, as defined in Code of Civil Procedure section 995.120, authorized to do business in the State of California and satisfactory to the City. 3.7.Operator is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” projects. If the requirements of this Agreement are performed as part of an applicable “public works” project,as defined by the Prevailing Wage Laws, and if the total value is $1,000 or more, Operator agrees to fully comply with such Prevailing Wage Laws, if applicable. Operator shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Operator and Operator’s contractor and all subcontractors to comply with all California Labor Code provisions, which include but are not limited to prevailing wages, employment of apprentices, hours of labor and debarment of contractors and subcontractors. 3.8.If the refurbishment activities constitute a “public works” or “maintenance” project, in addition to the foregoing, then pursuant to Labor Code Sections 1725.5 and 1771.1, Operator’s contractor and all subcontractors must be registered with the Department of Industrial Relations (“DIR”). Operator’s contractor shall maintain registration for the duration of the refurbishing activities and require the same of any subcontractors. The refurbishing activities may also be subject to compliance monitoring and enforcement by the DIR. It shall be Operator’s sole responsibility to comply with all applicable registration and labor compliance requirements, including the submission of payroll records directly to the DIR SECTION 4. FACILITY PROGRAMS, IMPLEMENTATION AND REVIEW 4.1. When the Facility becomes operational, Operator shall develop and provide to the public a program which involves competitive sports leagues for youth and adults, as well as clinics, tournaments and public and private rentals for community use (which may include birthday parties, corporate events, and other social gatherings). 3 ) 4.2. The program shall be submitted to the City in writing for approval prior to its implementation. 4.3. The program shall be periodically reviewed at the City's discretion to ensure that the program is not causing an undue nuisance, including, but not limited to, noise impacts, excessive parking demands, or other public health and safety issues. 4.4. If the City determines at its discretion that health and safety problems do exist, Operator agrees to make reasonable changes as needed pursuant to the City's direction. SECTION 5. TERM 5.1. The term of this Agreement shall be ten- years from the effective date unless earlier terminated as set forth herein. SECTION 6. LICENSE FEE 6.1. Amount. For the first five (5) years, Operator shall pay a rate of $1,000.00 per month plus 10% of the gross revenue per month on or before the fifteenth day of each month from inception of agreement. For the remainder of the agreement, Operator shall pay a rate of $1,500 per month plus 10% of the gross revenue per month on or before the fifteenth day of each month. 6.2. Method of Payment. Operator shall make payment payable to the City on or before the fifteenth of each month. The check shall be made payable to the City of San Juan Capistrano. The monthly payment shall be submitted directly to the Community Services Department, located at the Community Center, 25925 Camino del Avian, San Juan Capistrano, CA 92675. Monthly payments are deemed late if not received within ten (10) calendar days thereafter. 6.3. All costs for services provided under this Agreement shall be incurred by Operator with no financial obligation or reimbursement of costs from the City or the CUSD. SECTION 7. OPERATION AND MAINTENANCE OF FACILITY 7.1. Operation of Facility. Operator shall be responsible for the supervision and management of the Facility pursuant to this Agreement. Operator shall perform all operations in a competent manner, consistent with the standards of the industry and in accordance with all applicable Federal, State, and local regulations, including the City's Municipal Code. Operator shall obtain, at its sole cost and expense, all governmental permits and authorizations of whatever nature required by any governmental agencies having jurisdiction over Operator's use of the Facility. 4 7.2. Hours of Operation. The hours of operation are within the hours of 3:30 p.m. to 9:30 p.m., Monday through Friday, 8:00 a.m. to 9:30 p.m. on Saturdays, and 9:00 a.m. to 9:00 p.m. on Sundays. Operator may program and access the Facility during Summer and holiday hours consistent with the CUSD board approved calendar. Hours are subject to change as required by CUSD and school operations. 7.3. Use by School District. CUSD will not program at the Facility during the term of this agreement. Operator may not access or program at the Facility before 3:30 p.m. during the school year or when school is in session, without prior expressed authorization from CUSD and the City. Operator may use the facility as defined in section 6.2. 7.4. Morning Programming. Notwithstanding the other provisions of this Agreement, Operator may program and access the Facility within the hours of 5:00 a.m. to 7:00 a.m., Monday through Friday. Such programming shall be limited to a maximum of fifteen (15) participants and one instructor, or five (5) one-on-one (1:1) lessons. These classes shall be limited to bootcamp style/ athletic training only. Competitive sports are not permitted. Operator shall ensure that any morning programming does not create a noise nuisance or utilize loud music. Notwithstanding Section 7.7 of this Agreement, no access to CUSD parking is permitted. Operator and patrons of the facility may only use on-street parking or the City parking lot. No access to CUSD parking is permitted for morning programming. These permitted morning hours are subject to discontinuation by CUSD and/or City should Operator fail to adhere to these restrictions or should other cause for discontinuation exist. 7.5. Condition of Facility. Operator accepts the Facility in its present condition, "as is", upon execution of this Agreement. City makes no warranty of the suitability of the Facility for Operator's operations or other use of the Facility by Operator and expressly disclaims any warranty or representation with regard to the condition, safety, security or suitability for Operator's intended use of the Facility. The duly authorized representative of the City may enter upon the Facility and all structures and buildings thereon, or any portion thereof, at any time, and from time to time. 7.6. Maintenance of Facility. Operator shall maintain, at Operator’s expense, the Facility, including all existing structures and all equipment owned and furnished by Operator, in a reasonable state of repair and working order. Operator agrees, at Operator’s expense, to keep the Facility clean of trash, debris, and rubbish; and to keep fences, boarders and signage of the premises in good condition and repair at all times, reasonable wear and tear excepted. This shall include the immediate surrounding area of Facility outside the fence and walkway from the parking lot to the arena. All trash receptacles are required to have lids. 5 7.7. Parking. Operator and patrons of the facility have access to parking spaces as identified in Exhibit “A”. In the event the Operator shall host an activity where attendance will be in excess of the designated parking, at least 72-hour prior notice shall be given to the City for review and approval. Special permitting or arrangements for overflow parking may be necessary depending on the anticipated attendance. Any permits or fees associated with parking to accommodate such activities are the sole responsibility of the Operator. 7.8. Storage. Operator has use of and access to two (2) storage containers as identified in Exhibit A. When and if arrangements need to be made for a vehicle to access the site which will require driving on CUSD premises, at least 72-hours prior notice shall be given to the City for review and approval. Storage should be restricted to the interior of the facility and storage containers identified in Exhibit A. No other exterior storage is permitted. Property stored in the containers shall be locked when not in use. City will not provide locks for storage. 7.9. Utilities. Operator shall be responsible for all utilities associated with the Facility. 7.10. Liens. Operator will fully and promptly pay for all materials joined or affixed to the Facility under the authority or direction of Operator, and fully and promptly pay all persons who perform labor upon the Facility. Operator shall not allow or permit to be filed or enforced against the Facility, or any part thereof, any mechanics', material men's, contractors', or subcontractors' liens or stop payment notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or construction work, or out of any other claim or demand of any kind. Operator shall pay or cause to be paid all such liens, claims or demands, including sums due with respect to stop notices, together with attorney's fees incurred by the City or CUSD with respect thereto, within ten (10) business days after notice thereof and shall indemnify, hold harmless and defend the City and CUSD from all obligations and claims made against the City or CUSD for the above-described work, including attorney's fees. Operator shall furnish evidence of payment upon request of the City. Operator may contest any lien, claim, or demand by furnishing a statutory lien bond or equivalent with respect to stop payment notices to the City in compliance with applicable California law. If Operator does not discharge any mechanic's liens or stop payment notice for works performed for Operator, the City shall have the right to discharge same (including by paying the claimant), and the Operator shall reimburse the City for the cost of such discharge within ten (10) business days after billing. The provisions of this subsection shall survive the termination of this Agreement. 6 7.11. Third Party Liability. The Operator shall be responsible and liable for all acts and omissions of all of Operator's contractors, agents, employees, representatives and any other person or party entering upon the Facility under the authority or color of this Agreement. 7.12. Surrender Upon Termination. The Operator shall, at the termination of this Agreement, vacate the Facility in as good condition as it is in at the time of entry thereon by the Operator, and in addition shall leave in place all fixtures or work done during the term of this Agreement to refurbish or maintain the Facility. All approved, permitted upgrades to the Facility will be deemed as part of the Facility and shall remain part of the Facility when the Operator vacates the premises, all without any cost to the City. Upon surrender, Operator shall leave the Facility free and clear of all rubbish and debris. 7.13. Taxes. Pursuant to Revenue & Taxation Code §107.7, should a property interest be created herein, it may be subject to property taxation and the Operator may be subject to property taxes levied on such interest. In no event shall the City or CUSD be liable for any taxes owed as a result of this Agreement or the Operator's use of the Facility. 7.14. No Relocation Benefits. This Agreement is not intended to convey a property interest but to permit the Operator to use the Facility as provided for herein. Operator acknowledges the rights granted by State and/or Federal Relocation Assistance Laws and regulations and, notwithstanding any other provision of this Agreement, expressly waives all such past, present and future rights, if any, to which the Operator might otherwise be entitled from the City or CUSD with regard to this Agreement and the operations on the Facility. Operator shall not be entitled to relocation assistance, relocation benefits, or compensation for loss of goodwill upon the termination of this Agreement. SECTION 8. TIME IS OF THE ESSENCE Time is of the essence in the performance of this Agreement. SECTION 9. DEFAULT 9.1. If Operator defaults in the payment of the license fee due to the City, or any additional applicable payments, or defaults in the performance of any of the other covenants or conditions hereof, the City may give Operator notice of such default and if Operator does not cure any such default within three (3) days, or such other time period as specified in the notice of default, after the giving of such notice, then the City may terminate this Agreement on not less than ten (10) days' notice to 7 Operator. On the date specified in such notice the term of this Agreement shall terminate, and Operator shall then quit and surrender the Facility to the City, but Operator shall remain liable as hereinafter provided. If this Agreement shall have been so terminated by the City, the City may at any time thereafter resume possession of the Facility by any lawful means and remove Operator or other occupants and their effects. 9.2. If the Operator breaches any covenant or condition of this Agreement, the City may, on reasonable notice to the Operator (except that no notice need be given in case of emergency), cure such breach at the expense of the Operator. The reasonable amount of all expenses, including attorney's fees, incurred by the City in so doing shall be deemed additional fees payable on demand. SECTION 10. TERMINATION DUE TO BANKRUPTCY OR INSOLVENCY In the event proceedings in bankruptcy are commenced by the Operator, or the Operator is found to be in a state of insolvency, then in such event, the City shall have the right to terminate this Agreement and all further rights and obligations thereunder, by ten (10) days' notice in writing to Operator, in which event, on the expiration of the ten (10) days from mailing of the notice, this Agreement shall automatically terminate. SECTION 11. TERMINATION FOR CONVENIENCE This Agreement may be terminated for any reason by the City or Operator following thirty (30) days’ written notice. The City incurs no liability whatsoever for termination of this Agreement at any time. SECTION 12. NO ASSIGNMENTS The Operator has been selected for its unique qualifications and experience and therefore, Operator may not assign, sublet or otherwise transfer its interest under this Agreement without the prior written consent of the City, which may be withheld in the sole and absolute discretion of the City Manager. Any attempted assignment, sublet or transfer made in violation of this provision shall be null and void and shall be an event of default. SECTION 13. INDEPENDENT OPERATOR It is agreed that Operator shall act and be an independent operator and not an agent employee of the City. SECTION 14. LIMITATIONS UPON SUBCONTRACTING The experience, knowledge, capability, and reputation of Operator were a substantial inducement for the City to enter into this Agreement. Operator shall not contract with any other entity to perform the services required without written 8 approval of the City which may be withheld in the sole and absolute discretion of the City Manager or his or her designee. If Operator is permitted to subcontract any part of this Agreement by the City, Operator shall be responsible to the City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and the City. All persons engaged in the work will be considered employees of Operator. SECTION 15. MAINTENANCE COST RECORDS Operator shall maintain all books, documents, papers, employee time facility sheet, accounting records, and other evidence pertaining to fees and revenues generated in the operations of the Facility by Operator, and shall make such records and materials available at its offices for inspection by the City at all reasonable times during the term of this Agreement and for four (4) years from the date of final payment under this Agreement. Operator shall furnish copies of all such materials to the City upon request. SECTION 16. INDEMNITY To the fullest extent permitted by law, Operator agrees to indemnify, defend, and hold harmless the City and its elective or appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Operator, Operator's agents, officers, employees, subcontractors, or independent contractors hired by Operator in the performance of the Agreement. The only exception to Operator's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Operator. SECTION 17. INSURANCE. On or before beginning any of the work called for by any term of this Agreement or use of the Facility, Operator, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Operator shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Operator has also been obtained for the subcontractor. Insurance required herein shall be provided by Insurers in good standing with the State of California and having a minimum Best’s Guide Rating of A- Class VII or better. 9 17.1. Comprehensive General Liability. Throughout the term of this Agreement, Operator shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than four million dollars per occurrence ($4,000,000.00) / five million dollars general aggregate, combined single limit coverage for risks associated with the work contemplated by this agreement. 17.2. Comprehensive Automobile Liability. Throughout the term of this Agreement, Operator shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non-owned vehicles in an amount not less than one million dollars ($1,000,000.00) combined single limit. 17.3. Sexual Abuse & Molestation Liability. Throughout the term of this Agreement, Operator shall maintain in full force and effect Sexual Abuse and Molestation Liability coverage in an amount not less than one million dollars ($1,000,000) per occurrence / two million dollars ($2,000,000) general aggregate. Coverage may be provided as part of general liability coverage, or as a separate policy. 17.4. Worker’s Compensation. If Operator intends to employ employees to perform services under this Agreement, Operator shall obtain and maintain, during the term of this Agreement, Worker’s Compensation in the statutory amount as required by state law and Employer’s Liability Insurance in the minimum amount of one million dollars ($1,000,000) per accident or disease. Operator shall require its workers’ compensation insurer to endorse the policy to waive subrogation in favor of the City. 17.5. Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement or use of the Facility, Operator shall submit the insurance certificates, including the deductible or self- retention amount, and an additional insured endorsement naming the City and CUSD, their officers, employees, agents, and volunteers as additional insured as respects each of the following: Liability arising out of activities performed by or on behalf of Operator, including the insured's general supervision of Operator; products and completed operations of Operator premises owned, occupied or used by Operator; or automobiles owned, leased, hired, or borrowed by Operator. The coverage shall contain no special limitations on the scope of protection afforded the City and CUSD, their officers, employees, agents, or volunteers. All coverage provided by Operator shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute. 17.6. Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage's reduced, until after thirty (30) days' written notice is given to 10 the City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 17.7. Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement or use of the Facility, Operator shall submit the insurance certificates, including the deductible or self- retention amount, and an additional insured endorsement naming the City and CUSD, their officers, employees, agents, and volunteers as additional insured as respects each of the following: Liability arising out of activities performed by or on behalf of Operator, including the insured’s general supervision of Operator; products and completed operations of Operator premises owned, occupied or used by Operator; or automobiles owned, leased, hired, or borrowed by Operator. The coverage shall contain no special limitations on the scope of protection afforded the City and CUSD, their officers, employees, agents, or volunteers. 17.8. Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage's reduced, until after thirty (30) days' written notice is given to the City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. SECTION 18. NOTICES Any notice required to be given under this Agreement shall be in writing and shall be deemed to have been duly given and received if and when personally served, or forty-eight (48) hours after being deposited in the United States mail, first class, postage prepaid, addressed to the intended party at: CITY: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Benjamin Siegel, City Manager OPERATOR: The Victory Way 1001 Avenida Pico, Suite 627 San Clemente, CA 92673 Attn: Glen Miles, Director SECTION 19. ATTORNEYS' FEES If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. 11 SECTION 20. DISPUTE RESOLUTION In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"), Orange County office. SECTION 21. ENTIRE AGREEMENT This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. SECTION 22. MISCELLANEOUS 22.1. This Agreement may be modified only by written instrument executed by both parties hereto. 22.2. Any failure by the City to insist upon a strict performance by the Operator of any of the terms and provisions hereof shall not be deemed to be a waiver of any of the terms and provisions hereof. 22.3. This Agreement shall be governed by the construed in accordance with the laws of the State of California. 22.4. The parties executing this Agreement warrant that they have authority to bind the respective parties thereto. [Signatures on following page.] 13 EXHIBIT A SITE MAP 14 EXIBIT B SCOPE OF WORK The intent of this RFP is to solicit proposals from qualified Operators to provide adult and youth recreation, leagues, and sports activities. The services will require the Operator to maintain, coordinate, and schedule public use for the multipurpose facility located at Marco Forster Middle School, 3 Via Positiva, San Juan Capistrano. Proposers shall indicate an expressed interest for term length. The City will consider the term of the agreement for a minimum of five years and potentially longer durations, depending on the level of investment being proposed, prior operational experience and strength of reinvestment provisions. Since this a longstanding partnership, it is imperative for the Operator to precisely express through this RFP process its uniquely qualified team that will define policy, ability, experience, competency, and accountability. I. OPERATION OF FACILITY A. Operator shall incur all expenses associated with managing, operating, and maintaining the Multipurpose Facility at 3 Via Positiva as a public facility for conducting adult and youth recreation activities to include league play, practices, tournaments, clinics, and open sport recreational programs. B. Operator shall provide recreation activities to include league play, practices, tournaments, clinics and open sport recreational programs for youth and adults as agreed upon by Operator and City. C. Operator shall provide trained, competent staff to manage and operate the multipurpose facility in a professional and safe manner. Operator shall provide trained and competent officials for the conducting of leagues, tournaments, and other sport activities. Officials shall wear a prescribed uniform, as mutually agreed, while officiating sport activities. Officials shall also be required to wear safety equipment to include helmet, and eye protection (if applicable) and shall sign a release form stating that they are aware of the possible hazards and release City, CUSD and Operator of all liability. D. Operator shall staff the multipurpose facility with trained and competent staff on site. Operator shall provide one (1) official per game for league and tournament activities and other additional personnel, including the site manager, at all times when the ffacility is in use by Operator. E. At any time when the multipurpose facility is in operation by Operator, Operator shall provide for the site supervision during that time period. This supervised coverage during non-school hours includes team practices. F. Operator shall appoint a site manager under its direction and control, who shall devote the greater part of his/her time and attention to the operations permitted on the facilities and shall promote, increase, and convenience to the public. Such mangers shall have full authority for the operations under their control. In employing of managers, Operator shall seek individuals with previous experience. 15 ) G. All personnel employed by Operator having supervisory or disciplinary authority over minors shall pass a background check in compliance with California Public Resources Code § 5164. H. Operator shall submit monthly revenue reports showing monthly gross receipts from the operation. For the first five (5) years, Operator shall pay a rate of $1,000.00 per month plus 10% of the gross revenue per month on or before the fifteenth day of each month from inception of agreement. For the remainder of the agreement, Operator shall pay a rate of $1,500 per month plus 10% of the gross revenue per month on or before the fifteenth day of each month. I. Operator shall be responsible for all utilities associated to the multipurpose facility. II. FACILITY MAINTENANCE AND EQUIPMENT A. Operator shall maintain the multipurpose facility in a clean and safe condition for the operation of athletic activities, including inspecting all surface play to ensure the safety of the court. Any deficiencies are to be corrected by the Operator and at Operator’s expense. B. Operator shall provide all maintenance (including major repair and replacement) of all equipment and structures used in the operations of their programs. City shall have the right to direct Operator to perform necessary repairs and maintenance to equipment and structures owned by the Operator or by the City. The construction of temporary or permanent buildings on the area used for the multipurpose facility is subject to design review and approval by City, CUSD and the Division of the State Architect. C. Operator shall keep the area immediately surrounding the exterior of the multipurpose facility, including walk path and parking lot, in a clean and sanitary condition satisfactory to City/CUSD at all times. D. All trash receptables must have lids. No offensive or refuse matter, nor any substance constituting an unnecessary, unreasonable, or unlawful fire hazard or material detrimental to the public health shall be permitted or remain thereon, and Operator shall prevent any such matter of material from being or accumulating in the area. E. Provide for routine maintenance and repair of the court and surrounding area at the Operator’s expense. III. SCHEDULE OF OPERATIONS A. Operator will have access to the facility for operations and will have the authority to control, coordinate, and/or schedule all use of the multipurpose facility during non-school hours from 3:30 p.m. to 9:30 p.m. Monday through Friday; Saturday from 8:00 a.m. to 9:30 p.m.; and Sunday from 9:00 a.m. to 9:00 p.m. Operator may program and access the Facility during Summer and holiday hours consistent with the CUSD board approved calendar. Hours are subject to change as required by 16 CUSD and school operations. B.Operator may program and access the Facility within the hours of 5:00 a.m. to 7:00 a.m., Monday through Friday. Such programming shall be limited to a maximum of fifteen (15) participants and one instructor, or five (5) one-on-one (1:1) lessons. These classes shall be limited to bootcamp style/ athletic training only. Competitive sports are not permitted. Operator shall ensure that any morning programming does not create a noise nuisance or utilize loud music. Operator and patrons of the facility may only use on-street parking or the City parking lot. No access to CUSD parking is permitted for morning programming. These permitted morning hours are subject to discontinuation by CUSD and/or City should Operator fail to adhere to these restrictions or should other cause for discontinuation exist. IV. HEALTH AND SAFETY A. Operator shall correct safety deficiencies and violations of safety practices immediately and shall cooperate fully with the City/CUSD in the investigation of accidents occurring at the Multipurpose Facility. In the event of an injury to a patron or customer, Operator shall ensure that the injured person receives prompt and qualified medical attention and shall summit an injury report to the City within twenty- hour hours. If Operator fails to correct hazardous conditions which have led to or, in the opinion of the City, could lead to injury, City may immediately suspend and/or terminate the Agreement. V. PLAYER RELEASE FORMS A. Operator shall not permit any individual to participate in any activity on the multipurpose facility without first having completed a release form. Such release forms shall be approved by the City of San Juan Capistrano in advance. EXHIBIT C