Loading...
11-1115_CAPISTRANO UNIFIED SCHOOL DISTRICT_Joint Facility Use Agreement 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. 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 11115/20/1 AGENDA REPORTD8 TO: Karen P. Brust, City Mar(`ag FROM: Cynthia Alexander, Community Services Manager SUBJECT: Consideration of Proposed Revisions to the Joint Facility Use Agreement Between the City of San Juan Capistrano and the Capistrano Unified School District for the Roller Hockey/Multipurpose Facility RECOMMENDATION: By motion, approve the revised Joint Facility Use Agreement between the City of San Juan Capistrano and the Capistrano Unified School District (CUSD) for the roller hockey/multipurpose facility located at 3 Via Positiva. SITUATION: On September 20, 2011, the City Council approved a Joint Facility Use Agreement (Attachment 2) with Capistrano Unified School District (CUSD) for the roller hockey/multipurpose facility located at 3 Via Positiva. The Agreement was presented for approval to the CUSD Board of Trustees at their October 26, 2011, meeting. The item was pulled for-discussion from the agenda by the CUSD Board of Trustees. The Board of Trustees questioned the variation from the original 1999 Joint Development and Joint Use Agreement (Attachment 1) which included references regarding the construction of the roller hockey/multipurpose facility and the deletion of the payment to the CUSD of 20% of the amount received from the City's operator. After the CUSD Board of Trustees meeting, staff informed CUSD that the construction references were eliminated from the new Joint Facility Use Agreement due to the completion of the roller hockey/multipurpose facility in 2000; and explained that the 20% residual payment was excluded from the agreement due to a decline in roller hockey participation during fiscal years 2000-2002. The decline in participation prevented the third party operator from paying the City the agreed upon percentage; therefore, the City could not compensate CUSD 20% of the profits since there were none. In order to compromise with the CUSD, staff reinstated the 20% payment of amounts received from the City's operator into the Joint Facility Use Agreement, contingent upon the City contracting with an operator to manage the roller hockey/multipurpose facility. Additional edits to the September 20, 2011 draft agreement include the deletion of Section 2(a) i and minor clarification edits, which have been reviewed by the City Attorney. Section 2(a) i dealt with the granting of rights for the use of the roller hockey/multipurpose facility, restrooms and parking lot. Since the roller hockey/ Agenda Report Page 2 November 15, 2011 multipurpose facility is owned by the City and it is staff's understanding the use of restrooms and parking lot are adequately provided for in the Joint Use Agreement between the City and the CUSD, dated January 3, 2001 this section was considered redundant. . The revised Joint Facility Use Agreement (Attachment 2) is scheduled for approval by the CUSD Board of Trustees at their November 14, 2011, meeting. Staff will prepare a Supplementary Staff Report to the City Council if any questions or changes rise from the CUSD Board of Trustees' meeting of November 14, 2011. COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: This item will be presented to the Parks, Recreation and Senior Services Commission as a "receive and file" item at their November 21, 2011, meeting. NOTIFICATION: Cary Brockman, Executive Director, Facilities Capistrano Unified School District RECOMMENDATION: By motion, approve the revised Joint Facility Use Agreement between the City of San Juan Capistrano and the Capistrano Unified School District (CUSD) for the roller hockey/multipurpose facility located at 3 Via Positiva. Respectfully submitted, Cynthia Alexander Community Services Manager Attachments: 1. Staff Report— September 20, 2011, City Council Meeting 2. Revised Joint Facility Use Agreement 91241X}11 AGENDA REPORT D11 ir N, TO: Karen P. Brust, City Mao FROM: Cynthia Alexander, Commni y Services Manager SUBJECT: Consideration of Approval of a Joint Facility Use Agreement Between the City of San Juan Capistrano and Capistrano Unified School District for the Roder Hockey/Multipurpose Facility RECOMMENDATION: By motion, approve the Joint Facility Use Agreement between the City of San Juan Capistrano and the Capistrano Unified School District (CUSD) for the roller hockey/multipurpose facility located at 0 Via Positiva. SITUATION: In 1999, CUSD and the City entered into a Joint Development and Joint Use Agreement for the development and construction of a roller hockey/multipurpose facility (Attachment 1). The Joint Development and Joint Use Agreement between the City and CUSD for this facility has expired. The arrangement between CUSD and the City has been a valued partnership; therefore, staff is proposing a new Joint Facility Use Agreement (Attachment 2) to continue conducting community recreation programs for the City of San Juan Capistrano at this site. The City owns and holds title to the roller hockey/multipurpose facility and accompanying fixtures installed/constructed as part of the facility. The term of the proposed Joint Facility Use Agreement is 10 years and may be extended for an additional five (5) year term upon the written agreement of both parties. The agreement may be terminated by either party with one hundred eighty (180) days' notice. The process to consider the proposed agreement begins with the City Council's consideration of the proposed agreement. If the City Council approves the agreement, it will be forwarded to the CUSD to be agendized for consideration by the Board of Trustees. if the agreement is approved by both parties, the City would then continue the operation of the facility, In an effort to continue providing community recreation programs, staff is recommending that a Request. for Proposal (RFP) be sent to organizations interested in providing youth/adult sports programs and continuing to cover the maintenance and utility costs of the roller hockey/multipurpose facility. ATTACHMENT 1 Agenda Report Page 2 September 20, 2011 COMMISSION/BOARD REVIEW AND RECOMMENDATIONS: This item will be presented at the September 19, 2011 Parks, Recreation and Senior Services (PRSS) Commission meeting. Staff will provide a Supplemental Agenda Report if the PRSS Commission has a different recommendation. FINANCIAL CONSIDERATIONS- Under the previous agreement, the facility was operated and maintained by a third-party licensee that constructed the facility and conducted the fee-based community recreation programs. The City did not incur any costs associated with this facility. Staff is recommending a similar arrangement for the continued operation and maintenance of the facility. In is anticipated the terms of an operating agreement would include all costs to operate and maintain the facility and an appropriate fee to the City. If the City determines that the facility would be run directly by the City, user fees would be determined based on the cost to operate the facility. Upon completion of the RFP process, staff would return to City Council with the details of the financial issues of a third-party operations agreement or user fees based on the ultimate recommendation for the operation of the facility NOTIFICATION: Cary Brockman, Executive Director, Facilities Capistrano Unified School District RECOMMENDATION: By motion, approve the Joint Facility Use Agreement between the City of San Juan Capistrano and the Capistrano Unified School District (CUED) for the roller hockey/multipurpose facility located at 3 Via Positiva. Respectfully submitted, Cynthia Alexander Community Services Manager Attachments; 1, 1999 Joint Development and Joint Use Agreement 2. Proposed Joint Use Agreement 3. Map t AREEMENT JOINT �, VELOPMENT AND JOINT USE BETVVEEN CAPISTRANO UNIFIED SCHOOL DISTRICT AND THE CITY OF SAN JUAN CAPISTRAr; O `ANIS JOINT DEVELOPMENT AND JOINT USE AGREEMENT (this "A reernent") is made and entered into this 25 day of MAY 1999 by and between Capistrano Unified.. School District (the "District"), a school district duly organized and operated € nder the. laws of the Mete of California, and the City of San Juan Capistrano (the "Cifiy"), a California municipal corporation, both of whom shall be collectively referred to as the "Parties," and is based upon the followingg l C l I A a. WHEREAS, Section I9990 et �. of the Education Code of the State of California authorizes the City end the District to contract With one another to establish, construct, improve, operate and maintain recreational facilities and programs; and WHEREAS, the City and the District have approved a joint plan (the "baster Flan")-that provides for the development and shared use of a portion of a school site owned by the District known as the Marco Forster Middle School (hereinafter the "School Biter'). The Master Plan and all.related documents are attached hereto as Exhibit A and incorporated herein as if folly set forth; and WHEREAS, the Master Flan envisions development of a roller ht ey rink facility, other related recreation oriented improvements (the "Facilities") upon the School Site which will provide ars important educational and recreational opportunity to District students and to the community of San Juan Capistrano; and W HER-EAS, be lie District and the City isle to h the rights to use those Fto be constructed on the School Site in the manner and at, the times inreement; and FIEREAS, District is willing to grant to City the right to allow the public to use the Facilities on the School Site in exchange for the City's performance hereunder, NOW, THF-REFORE, in consideration of the mutual promises and covenants herein contained, the parties agree as follows: SECTION 1. CONSTRUCTION 1.=1 Com liance with the Divis, of State Architect. The architect's plans and specifications for the Facilities shall be submitted to the Division of the State Architect (IDSA) for approval. Tae' construction and installation of the Facilities to be placed on the School Site shall comply with all requirements of the Division of the State Architect (DSA). 1.2 Cor sLruction of the Facilities. City shall construct or cause to be constructed at its sole cost and expense the Facilities as provided in the plans and specifications and agrees to provide to District information regarding the award of a construction contract and the progress of the construction of the Facilities, f E 1.3 Chari c Orders. kept as provided below, City shall have the exclusive authority to approve change orders applicable to the Facilities if the same become necessary. City agrees to supply information regarding the change orders to the r 1 District prior to the v,o r rnmencing on the change order. 1.4 Additional Work. City and District may.mutually amend this Agreement, in writing, to modify the scope of the work related to the Facilities to include other construction work, District shall be responsible for any and all costs associated with such additional work which is solely for the benefit of the District. City shall be responsible for any and all casts associated Stith additional work which solely benefit the City. 1.5 Co9peration Between the i nd the City and District shall cooperate in the construction of the Facilities and shall use all reasonable diligence in granting and/or obtaining any and all approvals necessary for the construction of the Facilities_ 1.6 Schedule for Develoo ent. District and City shall mutually agree in writing upon a development schedule for the construction of the Facilities which will not disrupt the normal use and operation of the Marco Forster Middle School such that it hampers the school's ability to propedy function and carry out its educational purposes. 1.7 Notice of GpnIpleficn. Upon City and District approvai of the final inspection of the Facilities, City shall issue a Notice of Completion and mail such notice to District. 3 f -SECTIOW OPEI6TIOI Except as otherwise provided in this Agreement, City shall be responsible for the operation of the Facilities and for all casts associated with the operation of the Facilities on the School Site: City agrees to annually pay District twenty percent (20%) of the amount that City is to contractually receive: from City's Operator of the Facilities. At the end of each fiscal year, City shall certify to [district the exact amount of revenue City has received from the City°S Operator. Within thirty (30) clays of said certification, City shall them transmit the amount due and owing to the District. i 3.1 LAaintgnan!ge Costs. Except as otherwise set forth in this Agreement, City shall maintain the Facilities at its sole coast and expense during the tern of this 6 Agreement and any extensions thereof. City agrees to take all necessary action to t maintain and preserve the Facilities in a safe, healthy and good working order condition satisfactory to the District and in compliance with all applicable laws. 3.2 Acts of God, The above notwithstanding, City shall not be responsible to repair or replace the Facilities if they are partially or totally damaged or destroyed by a act of God, including but not limited to occurrences such as earthquake, food, fire or storm, In the event of such occurrence, the Parties will consider what action, if any, shall be taken to restore the Facilities. i 4 i 13 Ab tern f Dangergus l;ond'fions, City Al be responsible to take appropriate action to abate any dangerous conditions. Any costs incurred by District to abate the dangerous condition shall be reimbursed by City within thirty (30) days of City's receipt of notice of such costs. 3.4 Qlasure for Maintenance. Any maintenance procedure which shall require the temporary closure of the Facilities for more than twenty-four (24) hours shall occur at times mutually agreed upon in writing between the parties. 3.5 Utilitigs, City shall provide for and install all utilities necessary for the proper functioning of the Facilities. City shall pay all costs for the operation, repair and maintenance of the utilities for the Facilities during the torm of this Agreement and any extensions thereof. SECTION 4 JOINT USE OF THE F6.ClL1TIE 41 District's A ortionent of Use. District shall have the right to the exclusive use of the Facilities located on the School Site during normal school hours, for the purposes of this Agreement, the term "normal school hours" shall be from 8:00 a.m. to 3:15 p.m., Monday through Friday, for each day that school is in session, including lunch hour. It is understood ami.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 fours that school classes start and end as determined for each school year by the District. 5 41 i ,s for meat of Use. The City have the right to the exclusive use of the Facilities and the nonexclusive use of any existing parking spaces located at the front of the School Site at all times other than normal ;school hours. 4.3 Scheduling. City and District agree that within thirty (30) days from the date of exeoution of this Agreement, Qity and District shall establish a system to provide for the coordination and scheduling of the use of the Facilities. each system shall inciude a procedure for reserving the use of the Facilities and priorities for use of the Facilities. The District will be given first priority in the use of the Facilities provided District give advance written notice to City in compliance with the Parties' reservation policy and procedure in effect at the time such notice is required. EGTION 5 TEF WEXTENSIONS 5,t The initial term of this Agreement shall be for a period of eight ( ) years commencing on the date this Agreement is fully executed by both parties. City shall have the right to exercise an caption to renew the Agreement for another two (2) years by giving written notice of the option renewal to District by not later than sic ( ) months from the end of the Ini al Term. 52 Termination due to Default_ In the event of default by City, District may terminate City's right to operate on the School Site at any time within the Initial Teras by providing City written notice of the effective date of termination. City shall not be deemed to be in default in the performance of any obligation required to be performed by it unless and until it has failed to perform 6 AOL such obligation lain thirty (30) days after writte4otice by District to City specifying in reasonable detail the nature and extent of any such failures provided, however, that if the nature of the City's obligation Is such that more than thirty (30) days are required for its performance, there City shall not be deemed to be in default if it shall commence such performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. In 1 the event of default, each party shall bear its own aftomeys` fees and casts. 1 3 SI* TION 6 OWNERSHI OF FACT .I`i'"IES. PURCHASE I 6.1 Title and Ownership. District owns and holds title to the entire Marco Forster Middle School upon which will be constructed the Facilities. City shall own and hold title to the roller hockey rink and. accompanying fixtures installed or constructed as i pari of the rink. District shall yawn and hold We to any and all narking lets and i accompanying fixtures installed or constructed as part of the packing lots. 6.2 Qption to Eurchage Ujgon Termination. Within n i nety (20)'days of the termination of this Agreement.or any extension thereof pursuant to Section 5 above, the District shall have the first caption to purchase the Facilities. If the District decides not to exercise the right to purchase, then the Parties may agree to ether tens and conditions regarding disposition of the Facilities. Transfer of title as a result of the i purchase shall occur in the same manner as outlined in Section 6.3 below. District's purchase of the Facilities shall result in City's rights pursuant to Section 4. „City's Apportionment of Use" being terminated. I 7 1 Ask ,3 Transfer itle, Transfer of title and ownersh arra City to District of the Facilities installed or constructed shall be deemed complete after City Council's and Distdot Governing Board's approval of such transfer and Districts delivery to City of Brads necessary for the purchase of the Facilities. Transfer of title from City to District of the Facilities permanently and immediately terminates any and all of City's rights and obligations under this Agreement with regard to those Facilities and such Facilities shall be operated in District's sole discretion. i 6.4 Purchase by.Third Partv. City agrees that the Facilities small not. be sold l to any third party at any time without the prior written consent of the District. I i i 7.1 District's bli ation of Indemnification, Neither City nor any officer or r employee of City shall be responsible for any personal injury or property damage or s liability occurring by reason of any negligent acts or negligent omissions on the part of District, its officers, employees or agents in connection with this Agreement. l Additionally, district shall fully indemnify, defend and hold the City harmless from and against any liability unposed as a result of any injury whatsoever occur ng by reason of any negligent acts or negligent omissions on the part of District, its officers., employees or agents in connection with.this agreement. w 7.2 Ci 's Obligation of Indemnification, NeMer District nor any officer car 1 _ E employee of District shall be responsible for any personal injury or property damage or f J liability occurring by reason of any negligent acts or negligent omissions on the part of e city, its officers, empl scar agents in connection wfth Agreement. Additionally, City shall fully indemnify, defend and hold District harmless from and against any liability imposed as a result of any injury whatsoever occurring by reason of any negligent acts or negligent omissions ars the part of,the City, its officers, employees or agents in connection with this Agreement. City agrees to rewire City's Operator of the Facilities to contractually eater into an appropriate indemnity covenant in favor of City and District. 7.3 Cistrict`s Insurance g.bri ations. (district shall maintain general liability insurance with combined single limit of not less than 1 million per occurrence for the entire terra of this Agreement and any extensions thereof. Such insurance shall name City, its officers, employees and agents as additional insured. District shalt furnish properly executed certifficates of insurance to City within thirty (30) days of entering into this Agreement, which certificates shall clearly evidence all coverages required above and provide that such insurance shall not be materially changed, terminated or allowed to expire except on thirty (30) days phor written notice to City. 7.4 Ci `s ins rance Clli ations. City shall provide a certificate to District establishing that it is part of the Sauthem California Joint Powers Insurance Authority under which City is provided with general liability insurance of not less than 1 million dollars. Such insurance shall name District, its Governing Board, its officers, employees, and agents as additional insureds and shall be primary with respect to insurance or self-insurance programs maintained by District, 9 AOL City shall furnidWroperly executed certificates of Wrance to District within thirty (30) days of entering into this Agreement, which certificates shall clearly evidence all coverages required above and provide that such insurance shall not be materially changed,.terminated or allowed to expire except on thirty (30) days prior written notice to District. Citgo shall require any City Operator to acquire and maintain at gill times general liability insurance with a combined single limit of not less than five million dollars ($5,000,000 00) per occurrence for property'damage and personal injury with respect to all activities of the City's Operator its the operation of the Facilities and shall rewire the City Operator to name the City and District as additional insured. SECTIQN-8 GENERAL PRQVISIO S 8.1 Ngti . Every notice, demand, request, designation, oonsent, approval or other docurhent or instrument delivered pursuant to this Agreement shall be in writing and shall be either personally delivered, seat by Federal Express or other reputable overnight courier, seat by 'facsimile transmission with the original subsequently delivered by other means within three (3) working days of the facsimile transmission, or seat by registered or certified Limited States Mail (postage prepaid, return receipt requested), to the addresses set forth below or to such other addresses as the Parties may designate nate from time to tirne: I r If to District;: Capistrano Unified School Distrct 32972 Calle Perfecto San Juan Capistrano, California 92675 atten ort: Daniel J. Crawford Assistant Superintendent i 10 If to City: City of Sari Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attention: City ManaMr Women notice served by registered or certified mail shall be deemed delivered forty- eight (48) hours after the date mailed. father notices shall be effective upon delivery. 8,2 Tags To the extent that there may be any possessory interest tees arising out of this Agreement or the c nstruction and operation of the Facilities, District shall not be responsible for ftse taxes, l 8.3 Cgyenants and Conditicans. Each terra and each provision of this Agreementp erformable by either parva shall be deemed both a covenant and a i l condition. 1 8.4 Eartiai_Invalidily. If any term or provision of this Agreement or any extension or application thereof to any party or circumstances shall, to any extent,. be ° invalid or unenforceable, the remainder of this Agreement or any extension shall be valid and enforced to the fullest extent permitted by law. 8,5 giver. No delay or omission ire;the exercise of any right or remedy of a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. City°s consent or approval of any action by the District requiring City's consent or approval shall not be deemed to waive or reader unnecessary City's consent € to or approval of any subsequent act of District. District's consent or approval of any 1E j I 1 AIL action by the City reqdMg District's consent or approval Anot be deemed to waive or render unnecessary District's consent to-or approval of any subsequent act of City. Any waiver by either party of any default rnust be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.6 Entire 6greement. This Agreement represents the entire understanding of the Parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered by this Agreement 'his Agreement shall be governed by the laves of the State of California and construed as if drafted by bath City and DistricC This Agreement may not be modified, altered or amended except in writing by the Parties. 8Y uceMor and Assi ns. The terms and conditions of this Agreement shall be bonding on the successors and assigns of the Parties to this Agreement, &B Hgadinos. Headings at the beginning of each numbered article and section of this Agreement are solely for the convenience of the Parties and are not part of this Agreement, As they are intended for reference only, no legal significance of any kind shall be attached to such headings. 12 IN WITNESS WHEREOF, City and District have executed this Agreement in one or more comer art which, taken together, shall constitute: one Agreement as of the date indicated above. PiSTRANO UNIFIED SCHOOL DISTRICT D _ James A. Fleming Superintendent GPY Of SAN LEAN CAPISTRANO Uhn Greiner , Mayo° ATTEST- Cheryl ST:Ceryl J son , City Clerk APPROVED AS TO FORM: City Att0 ey i 13 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 20"' clay of September, 2011, by and between the City of San Juan Capistrano ("City) and the Capistrano Unified School District ("CUSD"). RECITALS: 1. Education Cone §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 Avian, San Juan Capistrano, California, and which had field areas 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 and construction of a roller hockeylmultipurpose facility located at 3 Ilia Positiva, on the property of MFMS, which Agreement has expired. 4. City desires to coordinate, schedule and conduct community recreation programs on the City's 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. 5. CITY and CUSD desire to enter into this Agreement to provide 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 A reement The purpose of this Agreement is for the CITY and CUSD to work together to provide for the 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 CU SID. 2. Use of MFMS by the CITY. a. CUSD shall grant to the CITY the following. i. The use of the CITY's roller hockey/multipurpose facility, located at MFMS, including restrooms and parking lot during non-school hours to conduct a community recreation program; ii. The right to coordinate, schedule and allow the public use of the roller hockey/multipurpose facility during non-school hours; and iii. Maintenance responsibilities for the roller hockey/multipurpose facility as set forth in Section 4(b) below 2 b. During the term of this Agreement, CUSD shall make the roller hoekeylmultipurpose 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 construction of temporary or permanent buildings on the area used for the roller hockey/multipurpose facility, subject to design review and approval by CUED and the Division of the State Architect. 3. Scheduling the Use of the Roller hockey/Multipurpose Facility. a. The CITY shall be responsible for and have the authority to 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. c. CUSID shall have the exclusive use of the roller hockey/multipurpose facility during school hours. d. The CITY shall 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 coordination and scheduling of the roller hockey/multipurpose facility, including a procedure for reserving the use of the roller hockey/multipurpose facility, providing 3 staff supervision and assigning priorities for use of the roller hockey/multipurpose facility. The CITY will be given first priority, CUSD will be given second priority and all others will be prioritized according to the CITY's fee schedule. Use priority for all groups is based on facility availability. For CUSD to schedule use of the roller hockey/multipurpose facility at a particular time, it will have to contact the CITY at least thirty (30) days in advance of the date of the use. 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 reservation of use of the roller hockey/multipurpose facility by persons and organizations, that each such person or organization shalt 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 a. CUSD shall be responsible for and pay all necessary costs incurred for the following: L Maintenance and repair of the roller hockey/multipurpose facility necessary to maintain and restrooms daring school usage hours. b. CITY shall be responsible for and pay all necessary costs incurred for the following: 4 L Maintenance and repair of the roller hockeylmultipurpose facility necessary to maintain and restrooms during non-school usage hours. ii. All electrical utility casts. 5. Use of Other MFMS Facilities. The CITY and the persons, organizations, and/or concessions that use the roller hockey/multipurpose facility pursuant to permits issued by the CITY may have non-exclusive access to and use of the MFMS parking lots. 6.. Charges for Use of the Roller Hocke /Multi ur ose Facili . The CITY may charge the persons and organization that use the roller hockey/multipurpose facility during non-school hours a user fee or charge for such use as set by resolution of City Council. The purpose of this flee 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 Fours. CUSP shall not charge either the CITY or the public for the use of the roller hockey/iultipurpose facility during non-school hours. 7. Term. The term of this Agreement shall be for ten (10) years commencing September 20, 2011. This Agreement may be terminated by either party with one hundred eighty (180) clays prier written notice to other party. Upon written agreement of both parties, this Agreement may be extended for an additional five (5) year term. 5 8. 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. 9. Indemnification and Insurance. a. CITY shall save and bald CUSD harmless to the extent authorized by lava 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. 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 awned by CUSD, or a failure to maintain said equipment and improvements installed 6 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). c. 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 aforementioned insurance coverage which will result in a decrease in the scope or the amount of such coverage. 10.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 duan Capistrano 25925 Camino del Avion Sari Juan Capistrano, CA 92675 CUSD; Attn: Executive Director, Facilities Capistrano Unified School District 33122 Valle Road San duan Capistrano, CA 92675 7 11.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 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. 12..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. 13.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. 14.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. 15.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 force without being impaired or invalidated in any way. 16.Successors and Assi ns. The terms and conditions of this Agreement shall be.binding on the successors and assigns of the parties to this Agreement. [SIGNATURE PAGE TOFOLLOW] IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first hereinabove written. "CITY" CITY OF SAN JUAN CAPISTRANO By Sam Allevato, Mayor `°CUSQ" By Superintendent or Designee ATTEST; (Maria Morris, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney Exhibit A 10 t W S hiE>i`3'&C1 .A£€E s1+`AE +�AY �.»..—_��-._mow F7.4iAtE Mi&4 i. 6 __ �•..`....M as...-.--. ,g ��...,-..—r __ b \ IZ 1atF i"�"9ffdRl alA�k6 bt Mortal cf7d seer »+•. '=`"�« - C�s L\--/ L3 ktE7Y VEt� C2 YRrlA fnWfya e F .4�.«««««................. ,-.......µ....,--.,».-_._�. IrtLJ taart sr..ro.,a �� EFk ffiYC'lElC Mtl - pEVp[.SFCE£1}i R.flLLFA kti')CK£5' - � RktFK PLAN ' F � s�rkxxgn«w' .t�AL8HfN1t.CEt',.>MF:FC ..�a i�. _. —1- -- E XHIBIT A MASTER PLAT THE CITY OF SAN JUAN CAIS ISTRANO i f Marco Forster Middle School ( Roller Hockey/Multipurpose Facility I 3 Via Positiva San Juan Capistrano, CA 92675 � W LC'1CAF1f3P+k �6 ml ! � J 6Arrtuw4��xw,m � �mdu+�i 117 0 3000 6000 9000 yet 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 clay of , 2011, by and between the City of San Juan Capistrano ("CITY") and the Capistrano Unified School District ("CUSD"). RECITALS: 1. Education Code §10900 et sed. 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 2.5001 Camino del Avion, San Juan Capistrano, California, and which has facilities that ars; suitable for use for community recreation programs. 3. On May 25, 1999, CUED 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. ATTACHMENT 2. . 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 CUM. 2. Use of MFVIS by the CITY. a. CUED 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 hours; 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. 5chedulin the Use of the Roller Hocke /Multi ur ase 1=acilit . 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 MEMS is in session. It is understood and agreed that the starting and ending times for school Fours may change from school year to school year, and that for each school year, the actual starting and ending times, will be these 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 Cl TY 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 acid/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, CUS. D will be given first priority of use provided CUSD gives advance written notice to CITY in compliance with the CITY's controls aridly 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 h.ockeylmultipurpose facility to allow for maintenance/renovation purposes. e. The CITY shall Ensure 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$1,000,000 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 hockeylmultipurpose facility. 5. Charges for Use of the Roller-Hockey_[Multigurpose Facility. The CITY may charge the persons and organization that operate and/or use the roller hoci<ey/multipurpose facility during nor;-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 hockeylmulti.purpose 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 (186) 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 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 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.Goveming-Law. This Agreement will be governed by and construed in accordance with the laws of the State of Califamia.. 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.Attom s' 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.sarne action or in a Separate action brought for that purpose, in addition to any other relief to which that party may be entitled. 1 4.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 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 ether 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 (1 D) calendar days following the date of mailing of the notice: CITY': Attn: Manager, Community Services Department City of Saiz Juan Capistrano 25925 Camino del Avian San Juan Capistrano, CA 92575 CUSD: Attn: Executive Director, Facilities Capistrano Unified School District 33122 Valle load 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 conditionof 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. CITE 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 ($1,00D,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 hockeylmultipurpose 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 CUED in a safe condition or which might arise as a result of acts or omissions of employees of CUED. CUED 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 billion Dollars ($1,000,000). d, The CITY and CUED 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 �i 9/20/2011 SUPPLEMENTARY AGENDA REPORT D11 TO: Karen P. Brust, City Moili'a'/ FROM: Cynthia Alexander, Community Services Manager SUBJECT: Consideration of Approval of a Joint Facility Use Agreement Between the City of San Juan Capistrano and Capistrano Unified School District for the Roller Hockey/Multipurpose Facility. �I RECOMMENDATION By motion, approve the Joint Facility Use Agreement Between the City of San Juan Capistrano and Capistrano Unified School District for the Roller Hockey/Multipurpose Facility located at 3 Via Positiva. After the posting of the agenda, the revisions shown in the attached redlined agreement were made to clarify that the City has the option to contract with an operator for the facilities, rather than itself manage the use of the facilities. ' Respectfully submitted, J �J ! Cynthia Alexander Community Services Manager Attachment: Revised Agreement 758751.1 33, i t JOINT FACILITY USE AGREEMENT BETWEEN CAPISTRANO UNIFIED SCHOOL DISTRICT AND CITY OF SAN JUAN CAPISTRANO THIS JOINT FACILITY USE AGREEMENT ( g reement "A ") is made and entered into to be effective on the 20th day of September, 2011, by and between the City of San Juan Capistrano ("City) and the Capistrano Unified School District ("CUSD"). a RECITALS: 1. Education Code §10900 et seg. 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 had field areas 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 and construction of a roller hockey/multipurpose facility located at 3 Via Positiva, on the property of MFMS, which Agreement has expired. E ATTACHMENT 2 4. City desires to coordinate, schedule and conduct community recreation programs on the City's 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. 5. CITY and CUSD desire to enter into this Agreement to provide use of the roller hockey/multipurpose facility at MFMS. AGREEMENT: 7 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: L The use of the CITY's roller hockey/multipurpose facility, located at MFMS, including restrooms and parking lot during non-school hours ; ii. The right to operate, coordinate, schedule and/or allow the operation and/or public use of the roller hockey/multipurpose facility during non-school hours; and 2 iii. 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 construction of temporary or permanent buildings on the area used for the roller hockey/multipurpose facility, subject to design review and approval by CUSD and the Division of the State Architect. 3. Scheduling the Use of the Roller Hockey/Multipurpose Facility. 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. c. CUSD shall have the exclusive use of the roller hockey/mu ltipurpose 1� 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 3 MFMS. The CITY shall establish a system to provide for the control, coordination and/or scheduling of the roller hockey/multipurpose facility, including a controls and/or procedures for reserving the use of the roller hockey/multipurpose facility, providing staff-supervision and assigning priorities for use of the roller hockey/multipurpose facility. The CITY and its contracted operator will be given first priority, CUSD will be given second priority and all others will be prioritized according to the CITY's fee hedu;econtrols and/or procedures. Use priority for all groups is based on facility availability. For CUSD to schedule use of the roller hockey/multipurpose facility at a particular time, it will have to contact the CITY at least thirty (30) days in advance of the date of the use. 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, that 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 $1,000,000 per occurrence, and that the CITY and CUSD are named as additional insured on the applicable insurance i, policies. 4. Maintenance of the Roller Hockey/multipurpose Facilit a. CUSD shall be responsible for and pay all necessary costs incurred for the following: 4 i i L Maintenance and repair of the roller hockey/multipurpose facility necessary, and to maintain a43A-restrooms during school usage hours. b. CITY shall be responsible for and pay all necessary costs incurred for the following: L Maintenance and repair of the roller hockey/multipurpose facility necessary, and to maintain a-nd-restrooms during non-school usage hours. ii. All electrical utility costs. 5. Use of Other MFMS Facilities. The CITY and the persons, organizations, and/or concessions that use the roller hockey/multipurpose facility pursuant to permits issued by the CITY may have non-exclusive access to and use of the MFMS parking lots. 6. Charges for Use of the Roller Hockey/Multipurpose Facility. 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 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. 5 i 7. Term. The term of this Agreement shall be for ten (10) years commencing September 20, 2011. This Agreement may be terminated by either party with one hundred eighty (180) days prior written notice to other party. Upon written agreement of both parties, this Agreement may be extended for an additional five (5) year term. 8. 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. 9. Indemnification and Insurance. a. CITY shall save and hold CUSD 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. 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 6 I I I death, or damages to property resulting from or which may arise by reason of dangerous or defective condition of equipment or other �I improvements installed or constructed by CUSD, on property owned byI 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). c. 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 aforementioned insurance coverage which will result in a decrease in the scope or the amount of such coverage. 10.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 92575 7 9 CUSD: Attn: Executive Director, Facilities Capistrano Unified School District 33122 Valle Road San Juan Capistrano, CA 92675 11.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 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. 12.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. 13.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. 8 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. a 14.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. 15.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 force without being impaired or invalidated in any way. 16.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 i i IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first hereinabove written. "CITY" ai CITY OF SAN JUAN CAPISTRANO By Sam Allevato, Mayor "CUSD" By Superintendent or Designee ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney Exhibit A 10 9/20/2011 AGENDA REPORT D11 TO: Karen P. Brust, City Mar m FROM: Cynthia Alexander, Comm ni y Services Manager SUBJECT: Consideration of Approval of a Joint Facility Use Agreement Between the City of San Juan Capistrano and Capistrano Unified School District for the Roller Hockey/Multipurpose Facility RECOMMENDATION: MENDATION: By motion, approve the Joint Facility Use Agreement between the City of San Juan Capistrano and the Capistrano Unified School District (CUSD) for the roller hockey/multipurpose facility located at 3 Via Positiva. SITUATION: In 1999, CUSD and the City entered into a Joint Development and Joint Use Agreement for the development and construction of a roller hockey/multipurpose facility (Attachment 1). The Joint Development and Joint Use Agreement between the City and CUSD for this facility has expired. The arrangement between CUSD and the City has been a valued partnership; therefore, staff is proposing a new Joint Facility Use Agreement (Attachment 2) to continue conducting community recreation programs for the City of San Juan Capistrano at this site. The City owns and holds title to the roller hockey/multipurpose facility and accompanying fixtures installed/constructed as part of the facility. The term of the proposed Joint Facility Use Agreement is 10 years and may be extended for an additional five (5) year term upon the written agreement of both parties. The agreement may be terminated by either party with one hundred eighty (180) days' notice. The process to consider the proposed agreement begins with the City Council's consideration of the proposed agreement. If the City Council approves the agreement, it will be forwarded to the CUSD to be agendized for consideration by the Board of Trustees. If the agreement is approved by both parties, the City would then continue the operation of the facility. In an effort to continue providing community recreation programs, staff is recommending that a Request for Proposal (RFP) be sent to organizations interested in providing youth/adult sports programs and continuing to cover the maintenance and utility costs of the roller hockey/multipurpose facility. Agenda Report Page 2 September 20, 2011 COMMISSIONIBOARD REVIEW AND RECOMMENDATIONS: This item will be presented at the September 19, 2011 Parks, Recreation and Senior Services (PRSS) Commission meeting. Staff will provide a Supplemental Agenda Report if the PRSS Commission has a different recommendation. FINANCIAL CONSIDERATIONS: Under the previous agreement, the facility was operated and maintained by a third-party licensee that constructed the facility and conducted the fee-based community recreation programs. The City did not incur any costs associated with this facility. Staff is recommending a similar arrangement for the continued operation and maintenance of the facility. In is anticipated the terms of an operating agreement would include all costs to operate and maintain the facility and an appropriate fee to the City. If the City determines that the facility would be run directly by the City, user fees would be determined based on the cost to operate the facility. Upon completion of the RFP process, staff would return to City Council with the details of the financial issues of a third-party operations agreement or user fees based on the ultimate recommendation for the operation of the facility NOTIFICATION: Cary Brockman, Executive Director, Facilities Capistrano Unified School District RECOMMENDATION: By motion, approve the Joint Facility Use Agreement between the City of San Juan Capistrano and the Capistrano Unified School District (CUSD) for the roller hockey/multipurpose facility located at 3 Via Positiva. Respectfully submitted, Cynthia Alexander Community Services Manager Attachments: 1. 1999 Joint Development and Joint Use Agreement 2. Proposed Joint Use Agreement 3. Map JOINT VELOPMENT AND JOINT USE APREEMENT BETWEEN CAPISTRANO UNIFIED SCHOOL DISTRICT AND THE CITY OF SAN JUAN CAPI SIR—ANO THIS JOINT DEVELOPMENT AND JOINT USE AGREEMENT (this "Agreement'") is made and entered into this 25 day of_MAY , —, 1999 by and between Capistrano Unified School District (the "District"), a school district duly organized and operated under the laws of the State of California, and the City of San Juan Capistrano (the "City"), a California municipal corporation, both of whom shall be collectively referred to as the "Parties," and is based upon the following: RECITALS: WHEREAS, Section 10900 et sea. of the Education Code of the State of California authorizes the City and the District to contract with one another to establish, construct, improve, operate and maintain recreational facilities and programs; and WHEREAS, the City and the District have approved a joint plan (the "Master Plan") that provides for the development. and shared use of a portion of a school site owned by the District known as the Marco Forster Middle School (hereinafter the "School Site"). The Master Plan and all1related documents are attached hereto as Exhibit A and incorporated herein as if fully set forth; and WHEREAS, the Master Plan envisions development of a roller hockey rink facility, other related recreation oriented improvements (the "Facilities") upon the School Site which will provide an important educational and recreational opportunity to District 6 students and to the community of San Juan Capistrano; and ATTACHMENT 1 WHEREAS, bo he District and the City wish to h the rights to use those Facilities which are to be constructed on the School Site in the manner and at the times indicated in this Agreement; arta WHEREAS, District is willing to grant to City the right to allow the public to use the Facilities on the School Site in exchange for the City's performance hereunder. NOW, THEREFORE, in consideration of the mutual promises arta covenants herein contained, the Parties agree as follows: SECTIQN 1 CONSTRUCTION. 1.1 Com liance with the Division of State Architect. The architect's plans and specifications for the Facilities shall be submitted to the Division of the State Architect (DSA) for approval. The construction and installation of the Facilities to be placed on the School Site shall comply with all requirements of the Division of the State Architect (DSA). 1.2 Construction of the Facilities. City shall construct or cause to be constructed at its sole coast and expense the Facilities as provided in the plans and specifications and agrees to provide to District information regarding the award of a construction contract and the progress of the construction of the Fa0lities. 1 I 13 Change Orders. Except as provided below, City shall have the exclusive authority to approve change orders applicable to the Facilities if the same become necessary. City agrees to supply information regarding the change orders to the 2 7Districtprior to the w orr'trrmencing on the change order. 1A additional Work. City and District may.mutually amend this Agreement, in writing, to modify the scope of the work related to the Facilities to include other construction work. District shall be responsible for any and all costs associated with such additional work which is solely for the beneift of the District. City shall be responsible for any and all assts associated with additional work which solely benefit the City. C station between the Ci nci the District. City and District shall cooperate in the construction of the Facilities and shall use all reasonable diligence in granting anddrr obtaining any and all approvals necessary for the construction of the Facilities_ 1.6 Schedule for Development. District and City shall mutually agree in writing upon a development schedule for the construction of the Facilities which will not disrupt the normal use and operation of the Marco Forster Middle School such that it hampers the school's ability to properly function and carry out its educational purposes. 1.7 Notice of GcaMpletfon. Upon City and District approval of the final inspection of the Facilities, City shall issue a Notice of Completion and mail such notice to District. SECTIO Ol�EMTION Except as otherwise provided in this Agreement, City shall be responsible for the operation of the Facilities and for all coasts associated with the operation of the Facilities on the School Site. City agrees to annually pay District twenty percent (20%) of the amount that City is to contractually receive from City's Operator of the Facilities. At the end of each fiscal year, Laity shall certify to District the enact amount of revenue City has received from the City's Operator. Within thirty (30) days of said certification, City shall thea transmit the amount due and owing to the District, SECTION 3 MAINTENANCE 3A K.4aintenance Coasts. Except as otherwise set forth in this Agreement, City shall maintain the f=acilities at its sole coast and expense during the terra of this Agreement and any extensions thereof. City agrees to take all necessary action to maintain and preserve the Facilities in a safe, healthy and good working order condition satisfactory to the District and in compliance with all applicable laves. 3.2 Acts of God. The above notwithstanding, City shall not be responsible to repair or replace the Facilities if they are partially or totally damaged or destroyed by an act of God, including but not limited to occurrences such as earthquake, flood, fire or storm. In the event of such occurrence, the Parties will consider what action, if any, shall be taken to restore the Facilities. 4 3.3 Ab tem f Dangerous Conditions. City s I be responsible to take [7abate riate action to abate any dangerous conditions. Any costs incurred by District to he dangerous condition shall be reimbursed by City within thirty (30) days oCitys receipt of notice of such costs. 3.4 Closure for Maintenance. Any maintenance procedure which shall require the temporary closure of the Facilities for more than twenty-four (24) hours shall occur at tunes mutually agreed upon in writing between the Parties. 3.5 Utilities. City shall provide for and install all utilities necessary for the proper functioning of the Facilities. City shall pay all costs for the operation, repair.and maintenance of the utilities for the Facilities during the terra of this Agreement and any extensions thereof. SECTION 4 JOINT USE OF THE FACILITIES 4.1 District's Apportionment of Use, District shall have the right to the exclusive use of the Facilities located on the School Site during normal school hours. for the purposes of this Agreement, the term "normal school hours" shall be from 8:00 a.m. to 3:15 p.m., Monday through Friday, for each day that school is in session, including lunch hour. 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 these hours that school classes start and end as determined for each school year by the District. 5 4.2 City's AI g io nrreent of Use. The City s have the right to the exclusive use of the Facilities and the nonexclusive use of any existing parking spaces located at the front of the School Site at all times other than normal school hours. 4.3 Scheduling. City and District agree that within thirty (30) days from the state of execution of this Agreement, City and District shall establish a system to provide for the coordination and scheduling of the use of the Facilities. Such system shall include a procedure for reserving the use of the Facilities and priorities for use of the Facilities. The District will be given first priority in the use of the Facilities provided District give advance written notice to City in compliance with the Parties' reservation policy and procedure in effect at the time such notice is required. SECII—ON_5 TI;RWEXTENSIO S 5.1 lniti l Term. The Initial Term of this Agreement shall be for a period of eight (S) years commencing on the date this Agreement is fully executed by both Parties. City shall have the right to exercise an option to renew the Agreement for another- two (2) years by giving written notice of the option renewal to District by not later than six (5) months from the end of the Initial Term. 5.2 Termination due to Default. In the event of default by City, District may terminate City's right to operate on the School Site at any time within the Initial Terra by providing City written notice of the effective date of termination. City shall not be deemed to be in default in the performance of any obligation required to be performed by it unless and until it has failed to perform 6 such obligation*hin thirty (30) days after writte4otice by District to City specifying in reasonable detail the nature and extent of any such failure; provided, however, that if the nature of the City's obligation Is such that more than thirty (30) days are required for its performance, then City shall not be deemed to be in default if it shall commence such performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. In the event of default, each party shall bear its own aftomeys' fees and costs. SECTION 6 OWNERSHIP OF FACILITIES. PURCHASE 6.1 Title and Ownershin. District owns and holds title to the entire Marco Forster Middle School upon which will be constructed the Facilities. City shall own and hold title to the roller hockey rink and accompanying fixtures installed or constructed as part of the rink. District shall own and hold title to any and all parking lots and accompanying fixtures installed or constructed as part of the parking lots. 6.2 ODtion to Purchase_!Ipon Termination. Within ninety ( 0)'days of the termination of this Agreement or any extension thereof pursuant to Section 5 above, the District shall have the first option to purchase the Facilities. If the District decides not to exercise the right to purchase, then the Parties may agree to other terms and conditions regarding disposition of the Facilities. Transfer of title as a result of the purchase shall occur in the same manner as outlined in Section 6.3 below. District's purchase of the Facilities shall result in City's rights pursuant to Section 4.2 "City's Apportionment of Use" being terminated. 7 3.3 Transfer itis. Transfer of title and ownersh rom City to District of the Faicilities installed or constructed shall be deemed complete after City Council's and District Governing Board's approval of such transfer and Districts delivery to City of funds necessary for the purchase of the Facilities. Transfer of title from City to District of the Facilities permanently and immediately terminates any and all of City's rights and obligations under this Agreement with regard to those Facilities and such Facilities shall be operated in District's sale discretion. 6.4 Purchase bei Third Party. City agrees that the Facilities shall not be sold to any third party at any time without the prior written consent of the District. SECTION 7 INDEMNIFICATION/INSURANCE 7.1 Districts Obligation of Indemnification. Neither City nor any officer ,or employee of City shall be responsible for any personal injury or property damage or liability Occurring by reason of any negligent acts or negligent omissions can the part of District, its officers, employees or agents in connection with this Agreement. Additionally, District shall fully indemnify, defend and hold the City harmless from and against any liability imposed as a result of any injury whatsoever occurring by reason of any negligent acts or negligent omissions on the part of District, its officers, employees or agents in connection with this Agreement. 7.2 City's Obligation of Indemnification, Neither District nor any officer or employee of District shall be responsible for any personal injury or property damage or liability occurring by reason of any negligent acts or negligent omissions on the part of r� City, its officers, empl s or agents in connection with Agreement. Additionally, City shall fully indemnify, defend and hold District harmless from and against any liability imposed as a result of any injury whatsoever occurring by reason of any negligent acts or negligent omissions can the part of the City, its officers, employees or agents in connection with this Agreement. City agrees to require City's Operator of the Facilities to contractually enter into an appropriate indemnity covenant in favor of City and District_ 7.3 District's Insurance Obligations, District shall maintain general liability insurance with combined single limit of not less than. $1 million per occurrence For the entire term of this Agreement and any extensions thereof. Such insurance shall name City, its officers, employees and agents as additional insured. District shalt furnish properly executed certificates of insurance to City within thirty (30) days of entering into this Agreement, which certificates shall clearly evidence all coverages required above and provide that such insurance shall not be materially changed, terminated or allowed to expire except on thirty (30) days prior written notice to City. 7.4 City shall provide a certificate to District establishing that it is part of the Southern California Joint Powers Insurance Authority under which City is provident with general liability insurance of not less than $1 million dollars. Such insurance shall name District, its Governing Board, its officers, employees, and agents as additional insureds and shall be primary with respect to insurance or self-insurance programs maintained by District. 9 City shall furni4wroperly executed certificates of 146rance to District within thirty (30) days of entering into this Agreement, which certificates shall clearly evidence all coverages required above and provide that such insurance shall not be materially changed, terminated or allowed to expire except can thirty (30) days prior written notice to District. City shall require any City Operator to acquire and maintain at all tinges general liability insurance with a combined single limit of not less than five million dollars ($5,000,000.00) per occurrence for property damage and personal injury with respect to all activities of the City's Operator in the operation of the Facilities and shall require the City Operator to name the City and District as additional insured. SECTION 8 GENERAL PROVISIONS 8.1 notice. Every notice, demand, request, designation, consent, approval or other document or instrument delivered pursuant to this Agreement shall be in writing and shall be either personally delivered, sent by Federal Express or other reputable overnight courier, sent by facsimile transmission with the original subsequently delivered by other means within three (3) working days of the facsimile transmission, or sent by registered or certified United States Mail (postage prepaid, return receipt requested), to the addresses set forth below or to such ether addresses as the Parties may designate from time to time: If to District. Capistrano Unified School District 32972 Calle Perfecto San duan Capistrano, California 92676 Attention: Daniel J. Crawford Assistant Superintendent If to City: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attention: City LAgnager Written notice seared by registered or certified mail small be deemed delivered forty- eight (48) hours after the date mailed. Other notices shall be effective upon delivery. 8.2 Taxes To the extent that there may be any possessory interest taxes arising out of this Agreement or the construction and operation of the Facilities, District shall not be responsible for those taxes. 8.3 Covenants and Conditions. Each terra and each provision of this Agreement perfoninable by either party shall be deemed both a covenant and a condition. 8.4 Partial Invalidity. if any term or provision of this Agreement or any extension or application thereof to any party or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement or any extension shall be valid and enforced to the fullest extent permitted by law. 8.5 Agiyer. No delay or omission in the exercise of any right or remedy of a nondefaulting party on any default shall impair such right or remedy or be construed as a waiver. City's consent or approval of any action by the District requiring City's consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of District. District's consent or approval of any tI action by the City reqL*g District's consent or approval A not be deemed to waive or render unnecessary District's consent to or approval of any subsequent act of City. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.6 Entire Agreement. This Agreement represents the entire understanding of the Parties as to those matters contained herein. No prior oral or written understanding shall be of any force or effect with respect to those matters covered by this Agreement. This Agreement shall be governed by the laws of the State of California and construed as if drafted by both City and District, This Agreement may not be modified, altered or amended except in writing by the Parties. 8.7 Successors and AssiaMs. The terms and conditions of this Agreement shall be binding on the successors and assigns of the Parties to this Agreement, 8.8 Headings Headings at the beginning of each numbered article and section of this Agreement are solely for the convenience of the Parties and are not part of this Agreement. As they are intended for reference only, no legal significance of any Wind shall be attached to such headings. 12 IN WITNESS WHEREOF, City and District have executed this Agreement in one or more counterpart which, teen together, shall constitute one Agreement as of the date indicated above. PISTRAANO UNIFIED SCHOOL DISTRICT D . dames A. Fleming Superintendent C 0 SAID RAIN GAPISTRANO ohn Greiner Mayor ATTEST: NIL' -X K. Cheryl J06asan , City Clerk APPROVED AS TO FORM: Cll-�;�— City Attar ey 13 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 20th day of September, 2011, by and between the City of San Juan Capistrano ("City) and the Capistrano Unified School District ("CUSD"). 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 had field areas 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 and construction of a roller hockey/multipurpose facility located at 3 Via Positiva, on the property of MFMS, which Agreement has expired. ATTACHMENT 2 4. City desires to coordinate, schedule and conduct community recreation programs on the City's 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. 5. CITY and CUSD desire to enter into this Agreement to provide 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 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 use of the CITY's roller hockey/multipurpose facility, located at MFMS, including restrooms and parking lot during non-school hours to conduct a community recreation program; ii. The right to coordinate, schedule and allow the public use of the roller hockey/multipurpose facility during non-school hours; and iii. Maintenance responsibilities for the roller hockey/multipurpose facility as set forth in Section 4(b) below 2 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 construction of temporary or permanent buildings on the area used for the roller hockey/multipurpose facility, subject to design review and approval by CUSD and the Division of the State Architect. 3. Scheduling the Use of the Roller Hockey/Multipurpose Facilit . a. The CITY shall be responsible for and have the authority to 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. c. CUSD shall have the exclusive use of the roller Lockey/multipurpose facility during school hours. d. The CITY shall 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 coordination and scheduling of the roller hockey/multipurpose facility, including a procedure for reserving the use of the roller hockey/multipurpose facility, providing 3 staff supervision and assigning priorities for use of the roller hockey/multipurpose facility. The CITY will be given first priority, CUSD will be given second priority and all others will be prioritized according to the CITY's fee schedule. Use priority for all groups is based on facility availability. For CUSD to schedule use of the roller hockey/multipurpose facility at a particular time, it will have to contact the CITY at least thirty (30) days in advance of the date of the use. 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 reservation of use of the roller hockey/multipurpose facility by persons and organizations, that 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 $1,000,000 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 a. CUSD shall be responsible for and pay all necessary costs incurred for the following: i. Maintenance and repair of the roller hockey/multipurpose facility necessary to maintain and restrooms during school usage hours. b. CITY shall be responsible for and pay all necessary costs incurred for the following: 4 L Maintenance and repair of the roller hockey/multipurpose facility necessary to maintain and restrooms during non-school usage hours. ii. All electrical utility costs. 5. Use of Other MFMS Facilities. The CITY and the persons, organizations, and/or concessions that use the roller hockey/multipurpose facility pursuant to permits issued by the CITY may have non-exclusive access to and use of the MFMS parking lots. 6. Changes for Use of the Roller Hocke /Multi purpose Facili . The CITY may charge the persons and organization that use the roller hockey/multipurpose facility during non-school hours a user fee or charge for such use as set by 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/mu ltipurpose 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 hockeylmultipurpose facility during non-school hours. 7. Term. The term of this Agreement shall be for ten (10) years commencing September 20, 2011. This Agreement may be terminated by either party with one hundred eighty (180) days prior written notice to other party. Upon written agreement of both parties, this Agreement may be extended for an additional five (5) year term. 5 8. 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. 9. Indemnification and Insurance. a. CITY shall save and hold CUSD 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. 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 6 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). c. 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 aforementioned insurance coverage which will result in a decrease in the scope or the amount of such coverage. 10.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 7 11.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 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. 12.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. 13.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 8 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. 14.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. 15.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 force without being impaired or invalidated in any way. 16.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 By Sam Allevato, Mayor "CUSD" By Superintendent or Designee ATTEST: Maria Morris, City Clerk APPROVED AS TO FORM: Omar Sandoval, City Attorney Exhibit A 10 t ...�.._ NEW 5'[^,3ict"W&LKWAY «.ir �...,.,..,_ <•f.f _ __ ._._.�._. __.J..-__..,.._- ....��� —..,--.—-- - .......... __ __ —_ `w._ kE 5'CLrCC3LriT R'4Liu Al,..�-....�• ,— 6flkt R 4 f _ b � BErfCk w w IlE7lCT, r �� tXISTINQ T IS COURT ..s 0 ro) _ IOU a" vaffiEubemaxld std ! eeerf�.u,.. VIM- vol u 311_ r ITI t �,} 13'f%rAMST+tr' 'SI 1t R _I r HEW►T73cE � _ mr��inwww ° � Jilt) wwrmwi,axv ESI WCR1C.6" 4TfvmmT;"" �� � _ 4t1711G pIJ.N 9ECTKAr A-a' 8 ' ARLE7ffNltLE p E WC OSx THE CITY OF SAN JUAN CAPISTR NO v I x Marco Forster Middle School hYx Roller Hockey/Multipurpose Facility 3 Via Positiva !' �E San Juan Capistrano, CA 92675 LOCATION YY" t '. � z .?F ..� "� jr '( it ;��• E E � F" I 1 ' nELvwr yy Mrd ; w C� a 0 3000 6000 9000 Feet ATTACHMENT 3 32.400 PASEO A DELANTO J J, MEMBERS OF THE CITY COUNCIL SAN.JUAN CAPISTRAsNO,CA,926`75 Jr � �' $ $ SAM ALLEVA'FO (949) 493-1053 FAX In[RRrOa.RSE� ttaUBAFBEESE € tlsuEs IARkYKRAMER wvww.sanjuancapistrano.org 1776 DEREK REEVE JOHN TAYLOR m � TRANSMITTAL TO: Capistrano Unified School District Attn: Executive Director, Facilities 33122 Valle Road San Juan Capistrano, CA 92675 DATE: November 17, 2011 FROM: Christy Jakl, Deputy City Clerk (949) 443-6310 RE: Joint Facility Use Agreement — Marco Forster Middle School Thank you for maintaining documentation confirming compliance with the terms of the agreement related to insurance. Please keep in mind this documentation must remain current with our office during the term of this agreement. If you have questions related to insurance requirements, please call me at (949) 443-6310. If you have questions concerning the agreement, please contact Cynthia Alexander, Community Services Manager at (949) 443-6395. An original agreement is enclosed for your records. Cc: Cynthia Alexander, Community Services Manager San Juan Capistrano: Preserving the Peat to Enhance the Future Printed m 900%recycied paper Christy Jaki From: Christy Jakl Sent: Thursday, November 17, 2011 3:59 PM To: Cynthia Alexander Cc: Debbie Evenson Subject: CUSD Agreement Attachments: CUSD.pdf Hi Cynthia, Attached is the executed CUSD Agreement. Thanks!! Christ? JAI Deputy City Clerk City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 (949) 443-6310 1 (949) 493-1053 fax 1