22-0630_BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY_3rd Amd to Professional Services AgreementTHIRD AMENDMENT TO
CITY OF SAN JUAN CAPISTRANO
PROFESSI6NAL SERVICES AGREEMENT WITH THE
BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY
THIS THIRD AMENDMENT ("Third Amendment") TO Professional Services
Agreement is made on the 30 day of Jurie 2022, by and between the
CITY OF SAN JUAN CAPISTRANO, a municipal corporation organized and operating
under the laws of the State of California with its principal place of business at 32400
Paseo Adelanto, San Juan Capistrano, CA 92675 ("City"), and the Boys & Girls Clubs of
Capistrano Valley, a Youth Development Agency (a 501(c)(3) corporation)("Contractor")
City and Contractor are sometimes individually referred to as "Party" and collectively as
"Parties" in this Agreement.
RECITALS
A. Pursuant to Section 6 of the Agreement, the City Manager and Contractor
may agree in writing to two additional ten (10) month extensions.
B. In 2018, the Parties agreed to enter a three-year agreement, concluding
June 30,2021.
C. In 2019, the Parties approved the First Amendment, correcting
inconsistencies in term dates.
D. In 2021, the Parties approved the Second Amendment extending the term
of the agreement. The term was originally defined as ten (10) months which covers the
funding period agreed to by the City. However, the Agreement also pertains to a full
calendar year and use of the gymnasium, therefore should not be defined as ten (10)
month terms.
D. The Parties now desire to approve the Third Amendment to extend the
Agreement for one -additional year, revise facility use and insurance.
E. Pursuant to Section 17 of the Agreement, executed by the Parties on or
about September 4, 2018. "This Agreement may not be modified or altered except in
writing signed by both Parties hereto." Consequently, the Agreement and First and
Second Amendments are attached hereto and incorporated herein by reference and are
being amended as follows:
1. Section 6 "Term" is amended and replaced in its entirety to read as follows:
"6. Term. This Agreement Shall be effective from September 1, 2018
through June 30, 2023."
2. Section 7. "Facility Use" is amended and replaced in its entirety to read as
follows:
Page 1 of 8
7. Facility Use.
a. During the school year, Contractor may use the gymnasium
from 7:00 a.m. — 8:00 a.m. each weekday for before school
care and activities; 2:00 p.m. to 6:00 p.m. on Monday,
Wednesday and Friday; and 1:00 — 4:00 p.m. on Tuesday and
Thursday for youth sport programs, provided the City is not
using the facility for a City program. City shall give Contractor
first priority of access to half of the gym ,and use of outdoor
fields when not being used for programming by the City.
b. During Summer months, Contractor may use the gymnasium
on a schedule as agreed upon by the City.
c. At all times, City is to have priority use of the gymnasium and
Contractor can only utilize the gymnasium when not in use by
City programs, classes and/or events.
d. Contractor shall only use the City's gymnasium for basketball,
volleyball and fitness activities. A foam ball may be used that
is no larger than six inches in diameter. Any other proposed
fuses shall receive prior written approval from the Community
Services Department. The following are prohibited within the
gymnasium (1) Inflatables and oversized bounce house like
activities, (2) the use of any ball other than basketballs,
volleyballs and foam balls, and (3) kicking of any type of ball.
e. Contractor is permitted use of the divider curtain, bleachers
and basketball hoops ("Gymnasium Infrastructure"). City shall
provide training to the Contractor's Athletic Director. Only City
authorized Contractor personnel, that have completed City
training on Gymnasium Infrastructure, shall be authorized
access to the control features and are permitted set up of the
Gymnasium Infrastructure. Contractor shall ensure that no
unauthorized person uses the control features or sets up the
Gymnasium Infrastructure.
f. The Contractor may use the gymnasium during the hours set
forth in Section 7a for no charge. Any use of the gymnasium
outside the hours set forth in Section 7a is at the sole
discretion of City and the City may charge a fee for such use.
g. The Contractor may use a portion of storage room two located
in the City's gymnasium. The storage room may only be used
to store athletic and outdoor game equipment. At all times, the
storage room must allow access for a clear walk path and be
compliant with all code requirements. Contractor staff are only
permitted access to storage room two. Contractor may add a
locker or storage cabinet to hold Contractor equipment. City
Page 2 of 8
is not responsible for items stored in the City's storage,
including theft and/or damage."
3. Section 10"Insurance" is amended and replaced in its entirety to read as
fol lows:
10. Insurance.
Contractor shall not commence work for the City until it has provided
evidence satisfactory to the City it has secured all insurance required under this
section. In addition, Contractor shall not allow any subcontractor to commence
work on any subcontract until it has secured all insurance required under this
section.
a. Commercial General Liability
(1) The Contractor shall take out and maintain, during the
performance of all work under this Agreement, in amounts not
less than specified herein, Commercial General Liability
Insurance, in a form and with insurance companies acceptable to
the City.
(2) Coverage for Commercial General Liability insurance shall be at
least as broad as the following:
i. Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent.
ii. Commercial General Liability Insurance must include
coverage for the following:
a. Bodily Injury and Property Damage
b. Personal Injury/Advertising Injury
c. Premises/Operations Liability
d. Products/Completed Operations Liability
e. Aggregate Limits that Apply per Project
f. Explosion, Collapse and Underground (UCX) exclusion
deleted
g. Contractual Liability with respect to this Contract
h. Broad Form Property Damage
i. Independent Contractors Coverage
iii. The policy shall contain no endorsements or provisions
limiting coverage for (1) contractual liability; (2) cross liability
exclusion for claims or suits by one insured against another;
Page 3 of 8
(3) products/completed operations liability; or (4) contain any
other exclusion contrary to the Agreement.
iv. The policy shall give City, its officials, officers, employees,
agents and City designated volunteers additional insured
status using ISO endorsement forms CG 20 10 10 01 and 20
37 10 01, or endorsements providing the exact same
coverage.
v. The general liability program may utilize either deductibles or
provide coverage excess of a self-insured retention, subject
to written approval by the City, and provided that such
deductibles shall not apply to the City as an additional insured.
b. Automobile Liability
(1) At all times during the performance of the work under this
Agreement, the Contractor shall maintain Automobile Liability
Insurance for bodily injury and property damage including
coverage for owned, non -owned and hired vehicles, in a form and
with insurance companies acceptable to the City.
(2) Coverage for automobile liability insurance shall be at least as
broad as Insurance Services Office Form Number CA 00 01
covering automobile liability (Coverage Symbol 1, any auto).
(3) The policy shall give City, its officials, officers, employees, agents
and City designated volunteers additional insured status.
(4) Subject to written approval by the City, the automobile liability
program may utilize deductibles, provided that such deductibles
shall not apply to the City as an additional insured, but not a self-
insured retention.
c. Workers' Compensation/Employer's Liability
(1) Workers' 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.
d. Sexual Abuse and Molestation Liability. Throughout the term of this
Agreement, Contractor shall maintain in full force and effect Sexual Abuse and
Molestation Liability coverage in an amount not less than two million dollars
($2,000,000) per occurrence / four million dollars ($4,000,000) general
Page 4 of 8
aggregate. Coverage may be provided as part of general liability coverage, or as
a separate policy.
e. Minimum Policy Limits Required
Commercial General Liability
Automobile Liability
Employer's Liability
Sexual Abuse & Molestation
Liability _
Workers' Compensation
Combined Single Limit
$2,000,000 per occurrence/
$4,000,000 aggregate for bodily
injury, personal injury, and property
damage
$5,000,000 per occurrence for
bodily injury and property damage
$1,000,000 per occurrence
$2,000,000 per occurrence
$4.000.000 aaareaate
1,000,000
(1) Defense costs shall be payable in addition to the limits.
(2) Requirements of specific coverage or limits contained in this section are not
intended as a limitation on coverage, limits, or other requirement, or a waiver of
any coverage normally provided by any insurance. Any available coverage shall
be provided to the parties required to be named as Additional Insured pursuant to
this Agreement.
Evidence Required.
Prior to execution of the Agreement, the Contractor shall file with the City evidence
of insurance from an insurer or insurers certifying to the coverage of all insurance
required herein. Such evidence shall include original copies of the ISO CG 00 01
(or insurer's equivalent) signed by the insurer's representative and Certificate of
Insurance (Acord Form 25-S or equivalent), together with required endorsements.
All evidence of insurance shall be signed by a properly authorized officer,
agent, or qualified representative of the insurer and shall certify the names of the
insured, any additional insureds, where appropriate, the type and amount of the
insurance, the location and operations to which the insurance applies, and the
expiration date of such insurance.
g. Policy Provisions Required. Contractor shall provide the City at least thirty
(30) days prior written notice of cancellation of any policy required by this
Agreement, except that the Contractor shall provide at least ten (10) days prior
written notice of cancellation of any such policy due to non-payment of premium.
If any of the required coverage is cancelled or expires during the term of this
Agreement, the Contractor shall deliver renewal certificate(s) including the General
Page 5 of 8
Liability Additional Insured Endorsement to the City at least ten (10) days prior to
the effective date of cancellation or expiration
h. The Commercial General Liability Policy and Automobile Policy shall
each contain a provision stating that Contractor's policy is primary insurance and
that any insurance, self-insurance or other coverage maintained by the City or any
named insureds shall not be called upon to contribute to any loss.
i. The retroactive date (if any) gf.each policy is..to be no later than the
effective date of this Agreement. Contractor -shall, mairitain: such coverage
continuously for a period of at least three years after the completion of the work
under this Agreement. Contractor shall purchase a one (1) year extended reporting
period A) if the retroactive date is advanced past the effective date of this
Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is
replaced by another claims -made policy with a retroactive date subsequent to the
effective date of this Agreement.
j. All required insurance coverages, except for the professional liability
coverage, shall contain or be endorsed to waiver of subrogation in favor of the
City, its officials, officers, employees, agents, and volunteers or shall specifically
allow Contractor or others providing insurance evidence in compliance with these
specifications to waive their right of recovery prior to a loss. Contractor hereby
waives its own right of recovery against City, and shall require similar written
express waivers and insurance clauses from each of its subcontractors.
k. The limits set forth herein shall apply separately to each insured against
whom claims are made or suits are brought, except with respect to
the limits of liability. Further the limits set forth herein shall not be construed to
relieve the Contractor from liability in excess of such coverage, nor shall it limit
the Contractor's indemnification obligations to the City and shall not preclude the
City from taking such other actions available to the City under other provisions of
the Agreement or law.
Qualifying Insurers
(1) All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the following minimum
requirements:
(2) Each such policy shall be from a company or companies with a
current A.M. Best's rating of no less than A:VII and admitted to transact in
the business of insurance in the State of California, or otherwise allowed to
place insurance through surplus line brokers under applicable provisions of
the California Insurance Code or any federal law.
M. Additional Insurance Provisions
(1) The foregoing requirements as to the types and limits of insurance
coverage to be maintained by Contractor, and any approval of said
insurance by the City, is not intended to and shall not in any manner limit or
qualify the liabilities and obligations otherwise assumed by the Contractor
Page 6 of 8
pursuant to this Agreement, including but not limited to, the provisions
concerning indemnification.
(2) If at any time during the life of the Agreement, any policy of insurance
required under this Agreement does not comply with these specifications or
is canceled and not replaced, City has the right but not the duty to obtain
the insurance it deems necessary and any premium paid by City will be
promptly reimbursed by Contractor or City will withhold amounts sufficient
'to pay premium from Contractor payments. In the alternative, City may
cancei'this Agi`eement': ,`..,.
(3) The City may require the Contractor to 'provide complete copies of
all insurance policies in effect for the duration of the Project.
(4) Neither the City nor any of its officials, officers, employees, agents or
volunteers shall be personally responsible for any liability arising under or
by virtue of this Agreement."
4. Except as otherwise specifically provided herein, all other provisions of the
Agreement and First and Second Amendments shall remain in full force and effect.
Signatures on Following Page
Page 7 of 8
IN WITNESS WHEREOF, the Parties have executed this Agreement:
City of San Juan Capistrano The Boys & Girls Clubs of Capistrano
A California municipal corporation Valley
By: r
BENJAMIN SIEGEL
City Manager
ATTE T:
By:
MARIA MORRIS
City Clerk
APPROVED AS TO FORM:
By:
JEFFREY BALLINGER
For City Attorney
Page 8 of 8
JAMES LITTLEJOHN
Executive Director