23-0117_VICTORY WAY, THE_Agenda Report_E12City of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM: Benjamin Siegel, City Manager
SUBMITTED BY: Matisse Reischl, Assistant to the City Manager/Director of
Community Services
PREPARED BY: Ashley Melchor, Senior Management Analyst
DATE: January 17, 2023
SUBJECT: Consent to Assignment Agreement for Operation of the Multipurpose
Facility at Marco Forster Middle School and Finding Said Action
Does Not Constitute a Project Under State CEQA Guidelines
Sections 15378 and 15061(b)(3)
RECOMMENDATION:
1.Approve and authorize the City Manager to execute a Consent to Assignment
Agreement with The Victory Way (Assignor) and Victory Athletic Center, LLC
(Assignee) for operation of the multipurpose facility at Marco Forster Middle
School.
2.Find that the activity does not constitute a project under the California
Environmental Quality Act (CEQA) pursuant to State CEQA Guidelines Sections
15378 and 15061(b)(3).
DISCUSSION/ANALYSIS:
In 1999, the City and Capistrano Unified School District (CUSD) entered into an
agreement that allowed for the development and shared use of a portion of Marco Forster
Middle School, adjacent to the City’s Sports Park. The facility consists of a fenced, open-
air arena with lighting and storage, along with access to school restrooms and parking.
The agreement allows the City to contract with a third-party operator to manage
recreational programing and maintenance of the facility.
1/17/2023
E12
City Council Agenda Report
January 17, 2023
Page 2 of 3
The City currently contracts with The Victory Way as the operator of the multipurpose
facility; the operator pays the City a monthly rate of $1,000 plus 10% of gross revenue,
with agreement term ending November 4, 2031. Due to internal changes within the
company, The Victory Way desires to obtain the consent of the City to assign all its rights,
duties, and obligations under the current agreement to an affiliated entity, Victory Athletic
Center, LLC.
Pending City Council approval of the proposed Assignment Agreement (Attachment 1),
Victory Athletic Center would be required to comply with all terms and conditions of the
current agreement which includes providing a robust multi-sport curriculum and hosting
tournaments, camps, and clinics for youth and adults. Staff recommends that the City
Council approve and authorize the City Manager to execute the proposed agreement
transferring operator responsibilities from The Victory Way to Victory Athletic Center, LLC.
FISCAL IMPACT:
There is no fiscal impact associated with the proposed action. Monthly revenue to the City
is unchanged by the assignment agreement.
ENVIRONMENTAL IMPACT:
Under the State CEQA Guidelines, approval of the recommended action does not
constitute a project under CEQA pursuant to State CEQA Guidelines, sections 15378 and
15061(b)(3).
First, section 15378 defines a project as an activity that “has a potential for resulting in
either a direct physical change in the environment or a reasonably foreseeable indirect
physical change in the environment.” (State CEQA Guidelines, § 15378(a).) Here,
approval of an assignment agreement will not result in any physical changes in the
environment. Accordingly, it is not a “project” subject to CEQA. (State CEQA Guidelines,
§ 15060(c).) Second, Section 15378 explicitly excludes from its definition of “project” the
following: “organizational or administrative activities of governments that will not result in
direct or indirect physical changes in the environment.” (State CEQA Guidelines, §
15378(b)(5).) Approval of the assignment agreement merely constitutes an organizational
or administrative activity that will not result in a physical change in the environment, and
therefore it is not subject to CEQA. (Ibid.)
Even if approval of the assignment agreement is considered a “project” subject to CEQA,
it is exempt under the “common sense exemption” set forth in State CEQA Guidelines
section 15061(b)(3), which provides that an activity is not subject to CEQA “where it can
be seen with certainty that there is no possibility that the activity in question may have a
significant effect on the environment.” Here, the recommended action merely constitutes
an organizational or administrative activity that will not result in direct or indirect physical
changes in the environment. The recommended action is thus not subject to CEQA.
(State CEQA Guidelines, § 15061(b)(3).)
City Council Agenda Report
January 17, 2023
Page 3 of 3
PRIOR CITY COUNCIL REVIEW:
• On November 4, 2021, the City Council approved a Site License and Use
Agreement with The Victory Way as operator of the multipurpose facility at Marco
Forster Middle School for a ten-year term.
• On December 16, 2014, the City Council approved a Site License and Use
Agreement with Victory Sports.
• On September 15, 2011, the City Council approved a Joint Facility Use Agreement
with Capistrano Unified School District for the roller hockey/multipurpose facility
located at Marco Forster Middle School.
• On May 18, 1999, the City Council approved a Joint Development and Joint Use
Agreement with Capistrano Unified School District for the multipurpose facility; and
a License Agreement with Revolution Hockey, LLC to construct and operate the
facility.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
• On September 20, 2021, the Parks, Equestrian, and Community Services
Commission recommended City Council approval of a Site License and Use
Agreement with The Victory Way.
• On November 17, 2014, the Parks, Recreation, and Senior Services Commission
forwarded to the City Council a recommendation of approval of the Site License
and Use Agreement to Victory Sports.
NOTIFICATION:
John Forney, Chief Facilities Officer, Capistrano Unified School District
Glen Miles, The Victory Way
Trevor Slavick, Victory Athletic Center, LLC
ATTACHMENT(S):
Attachment 1 – Proposed Consent to Assignment Agreement
CITY OF SAN JUAN CAPISTRANO
CONSENT TO ASSIGNMENT AGREEMENT
THIS CONSENT TO ASSIGNMENT AGREEMENT (“Consent”) is made as of this
January 17, 2023 (“Effective Date”), by and among the City of San Juan Capistrano
(“City”), The Victory Way, a corporation with its principal place of business at 1001
Avenida Pico Suite C #627, San Clemente, CA 92675 (“Assignor”), and Victory Athletic
Center, a limited liability corporation with its principal place of business at 32565 B Golden
Lantern #317, Dana Point, CA 92629 (“Assignee”). City, Assignor, and Assignee may be
individually referred to herein as a “party,” and collectively referred to as the “parties.”
RECITALS
A.City and Assignor have entered into an Agreement for the operation and
maintenance of the Multipurpose Facility, located at 3 Via Positiva, dated
November 4, 2021 (“Agreement”). A copy of the Agreement is attached hereto as
Exhibit A and incorporated herein by this reference.
B.Assignor now desires to assign to Assignee all of its rights, duties, and obligations
in, to, and under the Agreement (“Assignment”).
C.Pursuant to Section 12 of the Agreement, “No Assignments,” the Assignment shall
not be operative except upon the written consent of the City and any attempted
assignment without such consent shall be invalid and void.
D.Assignor and Assignee desire to obtain City’s consent to the Assignment and City
is willing to consent to the Assignment on the following terms and conditions.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained in this Consent,
and for valuable consideration, the receipt and sufficiency of which are acknowledged by
the parties, the parties agree as follows.
1.Representations and Warranties. Assignor and Assignee jointly represent and
warrant to the City:
1.1 That Assignee is an organization in good standing and validly existing under
the laws of the State of California.
1.2 That the execution, delivery and performance of the Agreement by
Assignee have been duly authorized.
2.Assumption. Assignee expressly assumes, acknowledges and agrees for the
benefit of City to be bound by, and to perform and comply with, every obligation of
Assignor under the Agreement. City shall have the same rights and remedies as against
the Assignee as City under the terms and provisions of the Agreement has against
ATTACHMENT 11
Assignor with the same force and effect as though every such duty, obligation,
responsibility, right or remedy were set forth herein in full. Upon full execution of this
Consent, Assignor shall be relieved of any obligations under the Agreement and shall
have no right to claim any benefits under the Agreement except to the extent such benefits
relate to work performed prior to the effective date of this Consent.
3. Insurance and Indemnity. Without limiting Assignee’s obligations under the
Agreement following the Assignment, the insurance and indemnity provisions applicable
to the Agreement are hereby expressly incorporated by reference and shall continue to
apply. This provision shall not be interpreted to be exclusionary.
4. References. All references and meaning assigned to the term “Operator” in the
Agreement shall be understood to mean Victory Athletic LLC, and shall include all of the
corresponding rights, obligations and benefits thereof as provided by this Consent and
the Agreement.
5. Subsequent Assignments. This Consent does not constitute a consent to any
subsequent assignment and does not relieve Assignee or any person claiming under or
through Assignee of the obligation to obtain the consent of City under Section 12 of the
Agreement to any future assignment. Notwithstanding the foregoing, City may consent
to subsequent assignments of the Agreement, or amend the Agreement without notifying
Assignor, including but not limited to any of Assignor’s guarantors, and without obtaining
their consent, and that action by Assignee will not relieve those persons of liability.
6. Default; Breach. In the event of any default or breach of Assignee under the
Agreement, City may proceed directly against Assignee, any guarantors, or anyone else
liable under the Agreement without first exhausting City’s remedies against any other
person or entity liable under the Agreement to City.
7. Termination. Notwithstanding the parties’ desire, intent and agreement to modify
the Agreement through the Assignment and this Consent, should the City, at its sole
discretion, wish to cancel, void or terminate the Agreement at any future time, the City
may do so by providing written notice of termination to Assignee in accordance with the
termination provisions of the Agreement. In such an event, simultaneously upon the
giving of written notice of termination in accordance with the terms of the Agreement, the
Agreement and this Consent shall be deemed canceled, voided and terminated.
8. Effect of Execution. Assignee’s execution of this Consent shall be deemed an
execution by Assignee of the Agreement. Upon execution of this Consent, Assignee shall
be deemed a signatory and party to the Agreement as if Assignee had directly executed
the Agreement. Assignee agrees to be firmly bound by all covenants, obligations and
conditions of the Agreement by its execution hereunder.
9. General Provisions.
9.1 Invalidity. If this Consent or the Assignment is determined by a court,
administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by
any rule of law or public policy, the Agreement as originally executed shall nevertheless
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be deemed to remain in full force and effect as if this Consent and the Assignment had
not been made or attempted.
9.2 Severability. If any term or other provision of this Consent is determined
by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being
enforced by any rule of law or public policy, all other conditions and provisions of this
Consent shall remain in full force and effect.
9.3 Governing Law. This Consent will be construed in accordance with and
will be governed by the laws of the State of California.
9.4 Notices. Notices, offers, requests or other communications required or
permitted to be given by the parties pursuant to the terms of this Consent shall be given
in writing to the respective parties.
9.5 Counterparts. This Consent may be executed in counterparts, each of
which shall be deemed to be an original but all of which shall constitute one and the same
agreement.
9.6 Binding Effect; Assignment. This Consent shall inure to the benefit of
and be binding upon the parties hereto and their respective legal representatives and
successors, and nothing in this Consent, express or implied, is intended to confer upon
any other person any rights or remedies of any nature whatsoever under or by reason of
this Consent. Assignee may not assign this Consent nor any rights or obligations
hereunder, without the prior written consent of the City, and any such assignment shall
be void.
9.7 Authority. Each of the parties hereto represents to the other parties that
(a) it has the requisite power and authority to execute, deliver and perform this Consent;
(b) the execution, delivery and performance of this Consent by it have been duly
authorized by all necessary corporate or other actions; (c) it has duly and validly executed
and delivered this Consent; and (d) this Consent is a legal, valid and binding obligation,
enforceable against it in accordance with its terms.
9.8 Interpretation. The headings to sections contained in this Consent are
included for reference purposes only and shall not affect or modify in any way the meaning
or interpretation of this Consent.
9.9 Attorneys’ Fees. Should any of the parties initiate any action at law or in
equity to enforce or interpret the terms of this Consent, party shall bear its own attorneys’
fees and legal costs
9.10 Waiver. Except as explicitly stated in this Consent, nothing contained in
this Consent will be deemed or construed to modify, waive, impair, or affect any of the
covenants, agreements, terms, provisions, or conditions contained in the Agreement. In
addition, City’s acceptance and waiver of any breach of this Consent by Assignee,
Assignor or anyone else liable under the Agreement will not be deemed a waiver by City
of any other provision of this Consent or the Agreement.
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9.11 Entire Agreement; Amendment. This Consent constitutes the final,
complete and exclusive statement between the parties to this Consent pertaining to the
terms of City’s consent to the Assignment and supersedes all prior and contemporaneous
written and oral agreements. No party has been induced to enter into this Consent by,
nor is any party relying on, any representation or warranty outside those expressly set
forth in this Consent. Any agreement made after the date of this Consent is ineffective to
modify, waive or terminate this Consent, in whole or in part, unless that agreement is in
writing, is signed by the City and Assignee, and specifically states that agreement
modifies this Consent.
[SIGNATURES ON FOLLOWING PAGE]
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61147.02100\24406143.1
EXHIBIT A
SITE AND LICENSE AGREEMENT FOR THE USE OF THE MULTIPURPOSE
FACILITY LOCATED AT MARCO FORSTER MIDDLE SCHOOL
[Attached Behind This Page]
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SITE LICENSE AND USE AGREEMENT
This License Agreement (“Agreement”) is made this ____day of _________
2021, ("Effective Date"), by and between the City of San Juan Capistrano "City", and
The Victory Way ("Operator").
RECITALS:
WHEREAS, in 2011, the City entered into a Joint Facility Use Agreement
with the Capistrano Unified School District (CUSD) for the use of the Multipurpose
Facility, located at 3 Via Positiva, in the City of San Juan Capistrano, County of
Orange, State of California ("Facility"). The Facility is located on the grounds of
Marco Forster Middle School and as further depicted in Exhibit "A", attached hereto
and incorporated herein by reference; and,
WHEREAS, the City desires to make the Facility available to the Operator to
maintain, and operate, the Facility, under the terms and conditions set forth in this
Agreement; and
WHEREAS, Operator is qualified by virtue of experience, training, education,
and expertise to accomplish the services required under this Agreement.
NOW, THEREFORE, BE IT MUTUALLY RESOLVED BETWEEN CITY AND
OPERATOR AS FOLLOWS:
SECTION 1. GRANT OF LICENSE
City hereby grants a license to Operator to utilize the Facility at 3 Via
Positiva, for the purpose of operating and maintaining the Facility, which is the
subject of this Agreement and is subject to the conditions set forth in this Agreement.
SECTION 2. SCOPE OF WORK
The scope of work to be performed by the Operator shall consist of those
tasks as set forth in Ex hibit "B", attached hereto and incorporated herein by this
reference. To the extent that there are any conflicts between the provisions
described in Exhibit "B" and those provisions contained within this Agreement, the
provisions in this Agreement shall control.
SECTION 3. REFURBISHING OF THE FACILITY
3.1.The refurbishing of the Facility shall be performed in strict
accordance with the upgraded list, attached as Exhibit “C – Chapter 3.”
3.2. Operator shall coordinate with CUSD and the City during the
refurbishing phase so as to avoid an interruption in CUS D functions at Marco Forster
Middle School.
November 4
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3.3.Operator shall provide a schedule of refurbishing activity which shall
be reviewed and approved by the City and CUSD prior to the commencement of the
work.
3.4. All approved permitted upgrades to the Facility will be deemed as
part of the Facility and shall remain part of the facility when the Operator vacates the
premises, all without any cost to the City.
3.5.Operator shall be solely responsible for providing all utilities to the
Facility.
3.6.If required by California law, Operator shall provide a payment and
performance bonds to the City prior to commencing the refurbishing activities. The
penal sum of the bonds shall be equal to the value of the refurbishing activities. The
bonds must be provided by an admitted surety insurer, as defined in Code of Civil
Procedure section 995.120, authorized to do business in the State of California and
satisfactory to the City.
3.7.Operator is aware of the requirements of California Labor Code
Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing
wage rates and the performance of other requirements on certain “public works”
projects. If the requirements of this Agreement are performed as part of an
applicable “public works” project,as defined by the Prevailing Wage Laws, and if the
total value is $1,000 or more, Operator agrees to fully comply with such Prevailing
Wage Laws, if applicable. Operator shall defend, indemnify and hold the City, its
elected officials, officers, employees and agents free and harmless from any claims,
liabilities, costs, penalties or interest arising out of any failure or alleged failure to
comply with the Prevailing Wage Laws. It shall be mandatory upon the Operator and
Operator’s contractor and all subcontractors to comply with all California Labor Code
provisions, which include but are not limited to prevailing wages, employment of
apprentices, hours of labor and debarment of contractors and subcontractors.
3.8.If the refurbishment activities constitute a “public works” or
“maintenance” project, in addition to the foregoing, then pursuant to Labor Code
Sections 1725.5 and 1771.1, Operator’s contractor and all subcontractors must be
registered with the Department of Industrial Relations (“DIR”). Operator’s contractor
shall maintain registration for the duration of the refurbishing activities and require the
same of any subcontractors. The refurbishing activities may also be subject to
compliance monitoring and enforcement by the DIR. It shall be Operator’s sole
responsibility to comply with all applicable registration and labor compliance
requirements, including the submission of payroll records directly to the DIR
SECTION 4. FACILITY PROGRAMS, IMPLEMENTATION AND REVIEW
4.1. When the Facility becomes operational, Operator shall develop and
provide to the public a program which involves competitive sports leagues for youth
and adults, as well as clinics, tournaments and public and private rentals for
community use (which may include birthday parties, corporate events, and other
social gatherings).
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4.2. The program shall be submitted to the City in writing for approval
prior to its implementation.
4.3. The program shall be periodically reviewed at the City's discretion to
ensure that the program is not causing an undue nuisance, including, but not limited
to, noise impacts, excessive parking demands, or other public health and safety
issues.
4.4. If the City determines at its discretion that health and safety problems
do exist, Operator agrees to make reasonable changes as needed pursuant to the
City's direction.
SECTION 5. TERM
5.1. The term of this Agreement shall be ten- years from the effective date
unless earlier terminated as set forth herein.
SECTION 6. LICENSE FEE
6.1. Amount.
For the first five (5) years, Operator shall pay a rate of $1,000.00 per
month plus 10% of the gross revenue per month on or before the fifteenth day of
each month from inception of agreement. For the remainder of the agreement,
Operator shall pay a rate of $1,500 per month plus 10% of the gross revenue per
month on or before the fifteenth day of each month.
6.2. Method of Payment.
Operator shall make payment payable to the City on or before the
fifteenth of each month. The check shall be made payable to the City of San
Juan Capistrano. The monthly payment shall be submitted directly to the
Community Services Department, located at the Community Center, 25925
Camino del Avian, San Juan Capistrano, CA 92675. Monthly payments are
deemed late if not received within ten (10) calendar days thereafter.
6.3. All costs for services provided under this Agreement shall be
incurred by Operator with no financial obligation or reimbursement of costs from
the City or the CUSD.
SECTION 7. OPERATION AND MAINTENANCE OF FACILITY
7.1. Operation of Facility.
Operator shall be responsible for the supervision and management of the
Facility pursuant to this Agreement. Operator shall perform all operations in a
competent manner, consistent with the standards of the industry and in
accordance with all applicable Federal, State, and local regulations, including the
City's Municipal Code. Operator shall obtain, at its sole cost and expense, all
governmental permits and authorizations of whatever nature required by any
governmental agencies having jurisdiction over Operator's use of the Facility.
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7.2. Hours of Operation.
The hours of operation are within the hours of 3:30 p.m. to 9:30 p.m.,
Monday through Friday, 8:00 a.m. to 9:30 p.m. on Saturdays, and 9:00 a.m. to
9:00 p.m. on Sundays. Operator may program and access the Facility during
Summer and holiday hours consistent with the CUSD board approved calendar.
Hours are subject to change as required by CUSD and school operations.
7.3. Use by School District.
CUSD will not program at the Facility during the term of this agreement.
Operator may not access or program at the Facility before 3:30 p.m. during the
school year or when school is in session, without prior expressed authorization from
CUSD and the City. Operator may use the facility as defined in section 6.2.
7.4. Morning Programming.
Notwithstanding the other provisions of this Agreement, Operator may
program and access the Facility within the hours of 5:00 a.m. to 7:00 a.m.,
Monday through Friday. Such programming shall be limited to a maximum of
fifteen (15) participants and one instructor, or five (5) one-on-one (1:1) lessons.
These classes shall be limited to bootcamp style/ athletic training only.
Competitive sports are not permitted. Operator shall ensure that any morning
programming does not create a noise nuisance or utilize loud music.
Notwithstanding Section 7.7 of this Agreement, no access to CUSD parking is
permitted. Operator and patrons of the facility may only use on-street parking or
the City parking lot. No access to CUSD parking is permitted for morning
programming. These permitted morning hours are subject to discontinuation by
CUSD and/or City should Operator fail to adhere to these restrictions or should
other cause for discontinuation exist.
7.5. Condition of Facility.
Operator accepts the Facility in its present condition, "as is", upon execution
of this Agreement. City makes no warranty of the suitability of the Facility for
Operator's operations or other use of the Facility by Operator and expressly
disclaims any warranty or representation with regard to the condition, safety, security
or suitability for Operator's intended use of the Facility. The duly authorized
representative of the City may enter upon the Facility and all structures and buildings
thereon, or any portion thereof, at any time, and from time to time.
7.6. Maintenance of Facility.
Operator shall maintain, at Operator’s expense, the Facility, including all
existing structures and all equipment owned and furnished by Operator, in a
reasonable state of repair and working order. Operator agrees, at Operator’s
expense, to keep the Facility clean of trash, debris, and rubbish; and to keep fences,
boarders and signage of the premises in good condition and repair at all times,
reasonable wear and tear excepted. This shall include the immediate surrounding
area of Facility outside the fence and walkway from the parking lot to the arena. All
trash receptacles are required to have lids.
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7.7. Parking.
Operator and patrons of the facility have access to parking spaces as
identified in Exhibit “A”. In the event the Operator shall host an activity where
attendance will be in excess of the designated parking, at least 72-hour prior notice
shall be given to the City for review and approval. Special permitting or
arrangements for overflow parking may be necessary depending on the anticipated
attendance. Any permits or fees associated with parking to accommodate such
activities are the sole responsibility of the Operator.
7.8. Storage.
Operator has use of and access to two (2) storage containers as identified in
Exhibit A. When and if arrangements need to be made for a vehicle to access the
site which will require driving on CUSD premises, at least 72-hours prior notice shall
be given to the City for review and approval. Storage should be restricted to the
interior of the facility and storage containers identified in Exhibit A. No other exterior
storage is permitted. Property stored in the containers shall be locked when not in
use. City will not provide locks for storage.
7.9. Utilities.
Operator shall be responsible for all utilities associated with the Facility.
7.10. Liens.
Operator will fully and promptly pay for all materials joined or affixed to the
Facility under the authority or direction of Operator, and fully and promptly pay all
persons who perform labor upon the Facility. Operator shall not allow or permit to be
filed or enforced against the Facility, or any part thereof, any mechanics', material
men's, contractors', or subcontractors' liens or stop payment notices arising from, or
any claim for damage growing out of, any testing, investigation, maintenance or
construction work, or out of any other claim or demand of any kind. Operator shall
pay or cause to be paid all such liens, claims or demands, including sums due with
respect to stop notices, together with attorney's fees incurred by the City or CUSD
with respect thereto, within ten (10) business days after notice thereof and shall
indemnify, hold harmless and defend the City and CUSD from all obligations and
claims made against the City or CUSD for the above-described work, including
attorney's fees. Operator shall furnish evidence of payment upon request of the City.
Operator may contest any lien, claim, or demand by furnishing a statutory lien bond
or equivalent with respect to stop payment notices to the City in compliance with
applicable California law. If Operator does not discharge any mechanic's liens or
stop payment notice for works performed for Operator, the City shall have the right
to discharge same (including by paying the claimant), and the Operator shall
reimburse the City for the cost of such discharge within ten (10) business days after
billing. The provisions of this subsection shall survive the termination of this
Agreement.
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7.11. Third Party Liability.
The Operator shall be responsible and liable for all acts and omissions of all
of Operator's contractors, agents, employees, representatives and any other person
or party entering upon the Facility under the authority or color of this Agreement.
7.12. Surrender Upon Termination.
The Operator shall, at the termination of this Agreement, vacate the Facility
in as good condition as it is in at the time of entry thereon by the Operator, and in
addition shall leave in place all fixtures or work done during the term of this
Agreement to refurbish or maintain the Facility. All approved, permitted upgrades to
the Facility will be deemed as part of the Facility and shall remain part of the Facility
when the Operator vacates the premises, all without any cost to the City. Upon
surrender, Operator shall leave the Facility free and clear of all rubbish and debris.
7.13. Taxes.
Pursuant to Revenue & Taxation Code §107.7, should a property interest be
created herein, it may be subject to property taxation and the Operator may be
subject to property taxes levied on such interest. In no event shall the City or
CUSD be liable for any taxes owed as a result of this Agreement or the Operator's
use of the Facility.
7.14. No Relocation Benefits.
This Agreement is not intended to convey a property interest but to permit the
Operator to use the Facility as provided for herein. Operator acknowledges the rights
granted by State and/or Federal Relocation Assistance Laws and regulations and,
notwithstanding any other provision of this Agreement, expressly waives all such
past, present and future rights, if any, to which the Operator might otherwise be
entitled from the City or CUSD with regard to this Agreement and the operations on
the Facility. Operator shall not be entitled to relocation assistance, relocation
benefits, or compensation for loss of goodwill upon the termination of this
Agreement.
SECTION 8. TIME IS OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
SECTION 9. DEFAULT
9.1. If Operator defaults in the payment of the license fee due to the City,
or any additional applicable payments, or defaults in the performance of any of the
other covenants or conditions hereof, the City may give Operator notice of such
default and if Operator does not cure any such default within three (3) days, or such
other time period as specified in the notice of default, after the giving of such notice,
then the City may terminate this Agreement on not less than ten (10) days' notice to
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Operator. On the date specified in such notice the term of this Agreement shall
terminate, and Operator shall then quit and surrender the Facility to the City, but
Operator shall remain liable as hereinafter provided. If this Agreement shall have
been so terminated by the City, the City may at any time thereafter resume
possession of the Facility by any lawful means and remove Operator or other
occupants and their effects.
9.2. If the Operator breaches any covenant or condition of this Agreement,
the City may, on reasonable notice to the Operator (except that no notice need be
given in case of emergency), cure such breach at the expense of the Operator. The
reasonable amount of all expenses, including attorney's fees, incurred by the City in
so doing shall be deemed additional fees payable on demand.
SECTION 10. TERMINATION DUE TO BANKRUPTCY OR INSOLVENCY
In the event proceedings in bankruptcy are commenced by the Operator, or
the Operator is found to be in a state of insolvency, then in such event, the City shall
have the right to terminate this Agreement and all further rights and obligations
thereunder, by ten (10) days' notice in writing to Operator, in which event, on the
expiration of the ten (10) days from mailing of the notice, this Agreement shall
automatically terminate.
SECTION 11. TERMINATION FOR CONVENIENCE
This Agreement may be terminated for any reason by the City or
Operator following thirty (30) days’ written notice. The City incurs no liability
whatsoever for termination of this Agreement at any time.
SECTION 12. NO ASSIGNMENTS
The Operator has been selected for its unique qualifications and experience
and therefore, Operator may not assign, sublet or otherwise transfer its interest
under this Agreement without the prior written consent of the City, which may be
withheld in the sole and absolute discretion of the City Manager. Any attempted
assignment, sublet or transfer made in violation of this provision shall be null and
void and shall be an event of default.
SECTION 13. INDEPENDENT OPERATOR
It is agreed that Operator shall act and be an independent operator and
not an agent employee of the City.
SECTION 14. LIMITATIONS UPON SUBCONTRACTING
The experience, knowledge, capability, and reputation of Operator were a
substantial inducement for the City to enter into this Agreement. Operator shall not
contract with any other entity to perform the services required without written
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approval of the City which may be withheld in the sole and absolute discretion of the
City Manager or his or her designee. If Operator is permitted to subcontract any part
of this Agreement by the City, Operator shall be responsible to the City for the acts
and omissions of its subcontractor as it is for persons directly employed. Nothing
contained in this Agreement shall create any contractual relationships between any
subcontractor and the City. All persons engaged in the work will be considered
employees of Operator.
SECTION 15. MAINTENANCE COST RECORDS
Operator shall maintain all books, documents, papers, employee time facility
sheet, accounting records, and other evidence pertaining to fees and revenues
generated in the operations of the Facility by Operator, and shall make such records
and materials available at its offices for inspection by the City at all reasonable times
during the term of this Agreement and for four (4) years from the date of final
payment under this Agreement. Operator shall furnish copies of all such materials
to the City upon request.
SECTION 16. INDEMNITY
To the fullest extent permitted by law, Operator agrees to indemnify, defend,
and hold harmless the City and its elective or appointive boards, officers, agents,
and employees from any and all claims, liabilities, expenses, or damages of any
nature, including attorneys' fees, for injury or death of any person, or damages of any
nature, including interference with use of property, arising out of, or in any way
connected with the negligence, recklessness and/or intentional wrongful conduct of
Operator, Operator's agents, officers, employees, subcontractors, or independent
contractors hired by Operator in the performance of the Agreement. The only
exception to Operator's responsibility to protect, defend, and hold harmless the City,
is due to the negligence, recklessness and/or wrongful conduct of the City, or any of
its elective or appointive boards, officers, agents, or employees.
This hold harmless agreement shall apply to all liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a limitation
upon the amount of indemnification to be provided by Operator.
SECTION 17. INSURANCE.
On or before beginning any of the work called for by any term of this
Agreement or use of the Facility, Operator, at its own cost and expense, shall carry,
maintain for the duration of the Agreement, and provide proof thereof that is
acceptable to the City, the insurance specified below with insurers and under forms
of insurance satisfactory in all respects to the City. Operator shall not allow any
subcontractor to commence work on any subcontract until all insurance required of
the Operator has also been obtained for the subcontractor. Insurance required
herein shall be provided by Insurers in good standing with the State of California and
having a minimum Best’s Guide Rating of A- Class VII or better.
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17.1. Comprehensive General Liability.
Throughout the term of this Agreement, Operator shall maintain in full force
and effect Comprehensive General Liability coverage in an amount not less than
four million dollars per occurrence ($4,000,000.00) / five million dollars general
aggregate, combined single limit coverage for risks associated with the work
contemplated by this agreement.
17.2. Comprehensive Automobile Liability.
Throughout the term of this Agreement, Operator shall maintain in full force
and effect Comprehensive Automobile Liability coverage, including owned, hired and
non-owned vehicles in an amount not less than one million dollars ($1,000,000.00)
combined single limit.
17.3. Sexual Abuse & Molestation Liability.
Throughout the term of this Agreement, Operator shall maintain in full force and
effect Sexual Abuse and Molestation Liability coverage in an amount not less than one
million dollars ($1,000,000) per occurrence / two million dollars ($2,000,000) general
aggregate. Coverage may be provided as part of general liability coverage, or as a
separate policy.
17.4. Worker’s Compensation.
If Operator intends to employ employees to perform services under this
Agreement, Operator shall obtain and maintain, during the term of this Agreement,
Worker’s Compensation in the statutory amount as required by state law and
Employer’s Liability Insurance in the minimum amount of one million dollars
($1,000,000) per accident or disease. Operator shall require its workers’
compensation insurer to endorse the policy to waive subrogation in favor of the City.
17.5. Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement or use of the Facility,
Operator shall submit the insurance certificates, including the deductible or self-
retention amount, and an additional insured endorsement naming the City and
CUSD, their officers, employees, agents, and volunteers as additional insured as
respects each of the following: Liability arising out of activities performed by or on
behalf of Operator, including the insured's general supervision of Operator; products
and completed operations of Operator premises owned, occupied or used by
Operator; or automobiles owned, leased, hired, or borrowed by Operator. The
coverage shall contain no special limitations on the scope of protection afforded the
City and CUSD, their officers, employees, agents, or volunteers. All coverage
provided by Operator shall be primary and any insurance or self-insurance procured
or maintained by City shall not be required to contribute.
17.6. Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled,
nor the coverage's reduced, until after thirty (30) days' written notice is given to
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the City, except that ten (10) days' notice shall be given if there is a cancellation
due to failure to pay a premium.
17.7. Proof of Insurance Requirements/Endorsement.
Prior to beginning any work under this Agreement or use of the Facility,
Operator shall submit the insurance certificates, including the deductible or self-
retention amount, and an additional insured endorsement naming the City and
CUSD, their officers, employees, agents, and volunteers as additional insured as
respects each of the following: Liability arising out of activities performed by or on
behalf of Operator, including the insured’s general supervision of Operator; products
and completed operations of Operator premises owned, occupied or used by
Operator; or automobiles owned, leased, hired, or borrowed by Operator. The
coverage shall contain no special limitations on the scope of protection afforded the
City and CUSD, their officers, employees, agents, or volunteers.
17.8. Notice of Cancellation/Termination of Insurance.
The above policy/policies shall not terminate, nor shall they be cancelled,
nor the coverage's reduced, until after thirty (30) days' written notice is given to
the City, except that ten (10) days' notice shall be given if there is a cancellation
due to failure to pay a premium.
SECTION 18. NOTICES
Any notice required to be given under this Agreement shall be in writing
and shall be deemed to have been duly given and received if and when
personally served, or forty-eight (48) hours after being deposited in the United
States mail, first class, postage prepaid, addressed to the intended party at:
CITY:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Benjamin Siegel, City Manager
OPERATOR:
The Victory Way
1001 Avenida Pico, Suite 627
San Clemente, CA 92673
Attn: Glen Miles, Director
SECTION 19. ATTORNEYS' FEES
If any action at law or in equity is necessary to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled to reasonable
attorneys' fees, costs and necessary disbursements in addition to any other relief
to which he may be entitled.
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SECTION 20. DISPUTE RESOLUTION
In the event of a dispute arising between the parties regarding
performance or interpretation of this Agreement, the dispute shall be resolved by
binding arbitration under the auspices of the Judicial Arbitration and Mediation
Service ("JAMS"), Orange County office.
SECTION 21. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding and agreement between
the parties and supersedes all previous negotiations between them pertaining to the
subject matter thereof.
SECTION 22. MISCELLANEOUS
22.1. This Agreement may be modified only by written instrument executed
by both parties hereto.
22.2. Any failure by the City to insist upon a strict performance by the
Operator of any of the terms and provisions hereof shall not be deemed to be a waiver
of any of the terms and provisions hereof.
22.3. This Agreement shall be governed by the construed in accordance
with the laws of the State of California.
22.4. The parties executing this Agreement warrant that they have authority
to bind the respective parties thereto.
[Signatures on following page.]
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EXHIBIT A
SITE MAP
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EXIBIT B
SCOPE OF WORK
The intent of this RFP is to solicit proposals from qualified Operators to provide adult and
youth recreation, leagues, and sports activities. The services will require the Operator to
maintain, coordinate, and schedule public use for the multipurpose facility located at Marco
Forster Middle School, 3 Via Positiva, San Juan Capistrano. Proposers shall indicate an
expressed interest for term length. The City will consider the term of the agreement for a
minimum of five years and potentially longer durations, depending on the level of investment
being proposed, prior operational experience and strength of reinvestment provisions. Since
this a longstanding partnership, it is imperative for the Operator to precisely express through
this RFP process its uniquely qualified team that will define policy, ability, experience,
competency, and accountability.
I. OPERATION OF FACILITY
A. Operator shall incur all expenses associated with managing, operating, and maintaining
the Multipurpose Facility at 3 Via Positiva as a public facility for conducting adult and
youth recreation activities to include league play, practices, tournaments, clinics, and
open sport recreational programs.
B. Operator shall provide recreation activities to include league play, practices,
tournaments, clinics and open sport recreational programs for youth and adults as
agreed upon by Operator and City.
C. Operator shall provide trained, competent staff to manage and operate the multipurpose
facility in a professional and safe manner. Operator shall provide trained and competent
officials for the conducting of leagues, tournaments, and other sport activities. Officials
shall wear a prescribed uniform, as mutually agreed, while officiating sport activities.
Officials shall also be required to wear safety equipment to include helmet, and eye
protection (if applicable) and shall sign a release form stating that they are aware of the
possible hazards and release City, CUSD and Operator of all liability.
D. Operator shall staff the multipurpose facility with trained and competent staff on site.
Operator shall provide one (1) official per game for league and tournament activities and
other additional personnel, including the site manager, at all times when the ffacility is in
use by Operator.
E. At any time when the multipurpose facility is in operation by Operator, Operator shall
provide for the site supervision during that time period. This supervised coverage during
non-school hours includes team practices.
F. Operator shall appoint a site manager under its direction and control, who shall devote
the greater part of his/her time and attention to the operations permitted on the facilities
and shall promote, increase, and convenience to the public. Such mangers shall have
full authority for the operations under their control. In employing of managers, Operator
shall seek individuals with previous experience.
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)
G. All personnel employed by Operator having supervisory or disciplinary authority over
minors shall pass a background check in compliance with California Public Resources
Code § 5164.
H. Operator shall submit monthly revenue reports showing monthly gross receipts
from the operation. For the first five (5) years, Operator shall pay a rate of
$1,000.00 per month plus 10% of the gross revenue per month on or before
the fifteenth day of each month from inception of agreement. For the
remainder of the agreement, Operator shall pay a rate of $1,500 per month
plus 10% of the gross revenue per month on or before the fifteenth day of
each month.
I. Operator shall be responsible for all utilities associated to the multipurpose facility.
II. FACILITY MAINTENANCE AND EQUIPMENT
A. Operator shall maintain the multipurpose facility in a clean and safe condition for the
operation of athletic activities, including inspecting all surface play to ensure the
safety of the court. Any deficiencies are to be corrected by the Operator and at
Operator’s expense.
B. Operator shall provide all maintenance (including major repair and replacement) of
all equipment and structures used in the operations of their programs. City shall have
the right to direct Operator to perform necessary repairs and maintenance to
equipment and structures owned by the Operator or by the City. The construction of
temporary or permanent buildings on the area used for the multipurpose facility is
subject to design review and approval by City, CUSD and the Division of the State
Architect.
C. Operator shall keep the area immediately surrounding the exterior of the
multipurpose facility, including walk path and parking lot, in a clean and sanitary
condition satisfactory to City/CUSD at all times.
D. All trash receptables must have lids. No offensive or refuse matter, nor any
substance constituting an unnecessary, unreasonable, or unlawful fire hazard or
material detrimental to the public health shall be permitted or remain thereon, and
Operator shall prevent any such matter of material from being or accumulating in the
area.
E. Provide for routine maintenance and repair of the court and surrounding area at the
Operator’s expense.
III. SCHEDULE OF OPERATIONS
A. Operator will have access to the facility for operations and will have the authority to
control, coordinate, and/or schedule all use of the multipurpose facility during
non-school hours from 3:30 p.m. to 9:30 p.m. Monday through Friday; Saturday from
8:00 a.m. to 9:30 p.m.; and Sunday from 9:00 a.m. to 9:00 p.m. Operator may
program and access the Facility during Summer and holiday hours consistent with
the CUSD board approved calendar. Hours are subject to change as required by
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CUSD and school operations.
B.Operator may program and access the Facility within the hours of 5:00 a.m. to
7:00 a.m., Monday through Friday. Such programming shall be limited to a
maximum of fifteen (15) participants and one instructor, or five (5) one-on-one
(1:1) lessons. These classes shall be limited to bootcamp style/ athletic training
only. Competitive sports are not permitted. Operator shall ensure that any
morning programming does not create a noise nuisance or utilize loud music.
Operator and patrons of the facility may only use on-street parking or the City
parking lot. No access to CUSD parking is permitted for morning programming.
These permitted morning hours are subject to discontinuation by CUSD and/or
City should Operator fail to adhere to these restrictions or should other cause for
discontinuation exist.
IV. HEALTH AND SAFETY
A. Operator shall correct safety deficiencies and violations of safety practices
immediately and shall cooperate fully with the City/CUSD in the investigation of
accidents occurring at the Multipurpose Facility. In the event of an injury to a patron
or customer, Operator shall ensure that the injured person receives prompt and
qualified medical attention and shall summit an injury report to the City within twenty-
hour hours. If Operator fails to correct hazardous conditions which have led to or, in
the opinion of the City, could lead to injury, City may immediately suspend and/or
terminate the Agreement.
V. PLAYER RELEASE FORMS
A. Operator shall not permit any individual to participate in any activity on the
multipurpose facility without first having completed a release form. Such release
forms shall be approved by the City of San Juan Capistrano in advance.
EXHIBIT C