23-0117_CAPISTRANO UNIFIED SCHOOL DISTRICT_Agenda Report_F1aCity of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM: Benjamin Siegel, City Manager
SUBMITTED BY: Thomas Toman, Public Works Director
DATE: January 17, 2023
SUBJECT: Third Amendment to Stone Field Lease for Joint Use of Stone Field;
and License Agreement with CREER Comunidad Y Familia for Use
of Stone Field Community Building; and, Finding Said Actions
Categorically Exempt from the California Environmental Quality Act
(CEQA) Section 15301
RECOMMENDATION:
1.Approve and authorize the City Manager to execute the Third Amendment to Stone
Field Lease for Joint Use of Stone Field with Capistrano Unified School District, for
use of Stone Field as a recreation facility through January 1, 2048;
2.Approve and authorize the City Manager to execute a License Agreement with
CREER Comunidad Y Familia for use of the Stone Field Property Community
Building through January 1, 2028, with one optional five-year extension; and,
3. Find that the proposed amendment with Capistrano Unified School District and
license agreement with CREER Comunidad Y Familia are categorically exempt
from the California Environmental Quality Act (CEQA) per Section 15301.
EXECUTIVE SUMMARY:
The City leases Stone Field from the Capistrano Unified School District (CUSD) under a
1997 agreement that recently expired on December 31, 2022. A location map is included
as Attachment 1. The City and CUSD have been in discussions over a potential long-
term lease renewal that would allow the two agencies to revisit joint use allocations and
construct additional improvements on the property, including synthetic turf and new field
lighting. The proposed amendment to the Stone Field Lease Agreement was approved
by the CUSD Board of Trustees on December 14, 2022. To secure long-term community
use and initiate capital improvements, staff recommends that the City Council approve
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City Council Agenda Report
January 17, 2023
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the proposed amendment, extending the term of the Lease Agreement through January
1, 2048 (Attachment 2).
As part of the Lease Agreement, the City is permitted to sublease the on-site Community
Building. The current tenant, CREER Comunidad Y Familia (CREER), operates under a
License Agreement with the City that also expired on December 31, 2022. Therefore, it
is also recommended that a new License Agreement with CREER for use of the Stone
Field Community Building be approved through January 1, 2028, with one optional five-
year extension (Attachment 3).
DISCUSSION/ANALYSIS:
The CUSD owns and operates Capistrano Union High School, located at 31422 Camino
Capistrano. A portion of that property, located on the northern portion of the parcel, is
commonly known as Stone Field (Attachment 1). Stone Field is currently used as a
recreation facility for members of the public and various community groups, primarily for
recreational soccer. Facility use is managed by the City’s Community Services
Department.
The City and CUSD first entered into a Lease Agreement in 1997 for the recreational use
of Stone Field. The term of the agreement was 25 years, with an option to extend for an
additional 25 years with CUSD approval. The agreement was amended in 2002 to allow
the City to construct improvements on the property, including restrooms and bleacher
facilities.
In May 2022, the City and CUSD executed a second amendment to the lease, extending
the term to the end of 2022 to allow the City and CUSD additional time to continue
discussions regarding a long-term lease renewal that would revisit joint use allocations
and partner to construct additional improvements on the property, including synthetic turf
and new field lighting. On December 14, 2022, the CUSD Board of Trustees approved
the proposed third amendment to the lease, which would extend the term of the
agreement for an additional 25 years, provide CUSD with additional use of Stone Field
(i.e., during regular school hours), and memorializes the City and CUSD’s desire to share
costs toward constructing the abovementioned improvements on the Stone Field
property, as described in more detail in the following section.
Proposed Third Amendment
1. Term and Use
Under the proposed third amendment, CUSD would be permitted to exclusively utilize
Stone Field from 7:30 a.m. to 2:30 p.m. Monday through Friday when school is in session
during the regular school year, approximately 180 days a year. The City and CUSD would
establish a working group, composed of City and CUSD staff, to monitor the Stone Field
premises and to establish rules and regulations for the use of the property, especially
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January 17, 2023
Page 3 of 6
once renovated. During non-school hours, the Stone Field premises would continue to
be available for public use and recreational programming through the City’s Community
Services Department.
2. Joint Project to Renovate Stone Field
A major new component of the proposed amendment involves a joint project to renovate
Stone Field with artificial and/or synthetic turf and new field lighting. The proposed project
costs, which include the construction phase and all other costs associated with the
design, preparation, and planning of the improvements, would be split 75% City and 25%
CUSD, except for the sports lighting element which would be the sole expense of the City
(since CUSD would not have use of the facility during evening hours). This percentage
split is based on the proposed proportional use of the facility, with CUSD use limited to
regular school hours and City and community use occurring after regular hours during the
school year, and all day on holidays, weekends, and summer break.
The current scope of work for the proposed joint project includes the following:
• Artificial turf replacement with drainage system
• Ornamental perimeter fencing
• Shade structures
• Aluminum tiered bleachers
• Sports lighting
• ADA accessible switchback ramp
• Two new soccer goals
Since the property is owned by CUSD, the proposed improvement project is subject to
review by the Division of State Architect. Therefore, CUSD would be the lead agency for
the design and construction of the proposed project, with the City collaborating in design
development and sharing in costs as outlined above.
3. Maintenance
Under the proposed amendment, the City would continue to be responsible for the total
cost of regular maintenance of the Stone Field premises. As is the case presently, the
City is able to establish and collect fees for the use of the field in order to offset costs.
Additionally, both agencies acknowledge that the proposed synthetic turf has a useful life
of approximately 10 – 15 years, and the City and CUSD agree that when the synthetic
turf requires replacement, CUSD shall be responsible for 25% and City shall be
responsible for 75% of replacement costs.
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January 17, 2023
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CREER License Agreement
Under the proposed amendment, the City retains the ability to sublease a 250 sq. ft.
portion of the Stone Field Community Building to a non-profit organization. Since 2007,
the City has allowed CREER to use this portion of the building for administrative purposes
under a License Agreement. CREER is a 501(c)(3) nonprofit organization whose mission
is to develop children, youth, and families through educational, cultural, sports, and civic
leadership programs. CREER partners with CUSD, Mission Hospital, the Orange County
Health Care Agency, and Southern California Edison to create stronger working
relationships for public safety, health, and educational purposes within the community.
Concurrent with approval of the amendment to the Stone Field Lease, staff is
recommending that the Council approve a new License Agreement with CREER that
would essentially extend their term through the end of 2027, with one optional five-year
extension.
FISCAL IMPACT:
The proposed amendment to the Stone Field Lease Agreement provides that the City and
CUSD would partner on a project to remove and replace the existing natural turf surface
with artificial turf and drainage improvements, new perimeter fencing and other ancillary
site amenities. All costs associated with the design, preparation, planning, and
construction of the project would be split 75% City and 25% CUSD, except for the costs
associated with the lighting element of the project, which will be the City’s sole
responsibility.
CUSD estimates that design and environmental costs for the project are approximately
$275,000. The City’s current capital budget includes funding for the City’s share of these
design-related costs. Funding for the construction phase of the project has not yet been
identified but is anticipated to be discussed as part of the May 2023 Budget Workshop.
The preliminary estimate for the total project cost is approximately $3 – 4 million.
With respect to the new CREER License Agreement, CREER would pay the City a $49
monthly facility rental fee and a $25 monthly utility fee, totaling $74 per month. This is
the same monthly fee arrangement as provided under the existing License Agreement.
ENVIRONMENTAL IMPACT:
In accordance with the California Environmental Quality Act (CEQA), the recommended
action is exempt from CEQA per Section 15301, because it consists of operation, repair,
maintenance, permitting, leasing, licensing, or minor alteration of existing public or private
structures, facilities, mechanical equipment, or topographical features, involving
negligible or no expansion of use beyond that existing at the time of the lead agency’s
determination. The proposed Amendment to Stone Field Lease and proposed License
Agreement with CREER would extend the terms during which the City and CREER may
use the property.
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January 17, 2023
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CUSD and City would also agree that CUSD is designated as the Lead Agency pursuant
to Section 15051 (a) and (d) of the CEQA Guidelines, as CUSD will be undertaking CEQA
review with regard to of the installation of the joint project to improve Stone Field. CUSD
would have all discretion to fulfill the obligations of a CEQA Lead Agency, including the
preparation of the appropriate environmental review document. The City would be a
Responsible Agency pursuant to Section 15381 of the CEQA Guidelines.
PRIOR CITY COUNCIL REVIEW:
• On June 7, 2022, the City Council approved the Fiscal Year 2022-2023 Seven-
Year Capital Improvement Program and Budget which included funding for the
design phase of the Stone Field Synthetic Turf Renovation Project.
• On May 17, 2022, the City Council approved and authorized the City Manager to
execute both the Second Amendment to the Stone Field Lease with Capistrano
Unified School District for use of Stone Field as a recreation facility through
December 31, 2022; and, the Third Amendment to the License Agreement with
CREER for use of the Stone Field Property Community Building through December
31, 2022.
• On August 21, 2018, the City Council approved a License Agreement with CREER
for a two-year term, and two, optional one-year extensions that expires on May 18,
2022.
• On February 19, 2002, the City Council approved an Amendment to the Stone
Field Lease with CUSD for the City to construct certain improvements on said land,
including restroom and bleacher facilities, on land adjoining the leased land owned
by CUSD.
• On May 19, 1997, the City Council approved the Lease of Stone Field with CUSD
as a recreational facility for a 25-year term.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
This item does not require commission, committee, or board review.
NOTIFICATION:
Angeles Ceballos, Executive Director, CREER
John G. Forney, Chief Facilities Officer, CUSD
Amy M. Strange, Facilities and Construction Specialist, CUSD
Clark Hampton, Acting Superintendent, CUSD
City Council Agenda Report
January 17, 2023
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ATTACHMENTS:
Attachment 1: Location Map
Attachment 2: Proposed Third Amendment to Stone Field Lease
Attachment 3: Proposed Fourth Amendment to CREER License Agreement
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LOCATION MAP
STONE FIELD SOCCER FIELD - RECREATION FACILITY
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LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE
CREER COMUNIDAD Y FAMILIA
PARTIES AND DATE
This License Agreement (“Agreement”) is entered into as of this _____ day of ______,
2023 (“Effective Date”) by and between the City of San Juan Capistrano, a California
municipal corporation (the “City”) and CREER Comunidad y Familia a California nonprofit
corporation (the “Licensee”). City and Licensee are sometimes hereinafter individually
referred to as “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS:
A. Licensee is a California nonprofit corporation dedicated to developing the
Cultural, Educational, and Social potential of Mexican/Latino children, youth,
families, and communities so that they may become citizens/leaders and
contributors to a prosperous and vibrant South Orange County Community.
B. The City currently leases property known as Stone Field, which includes the
Stone Field Community Building, located at 31322 Camino Capistrano, San
Juan Capistrano (the “Stone Field Community Building”), from Capistrano
Unified School District (“CUSD Joint Use Agreement”). CUSD Lease
Agreement shall expire on January 1, 2048, unless otherwise extended
pursuant to the terms of the CUSD Joint Use Agreement.
C. Licensee desires to utilize, for administrative purposes, a portion of the Stone
Field Community Building.
D. City desires to make available a portion of the Stone Field Community Building
to Licensee for such purposes on a temporary basis under the terms and
conditions set forth in this License.
TERMS
1. Grant of License
1.1. City hereby grants a License to Licensee for the purpose of allowing
Licensee to utilize a portion of the Stone Field Community Building,
for administrative purposes only.
1.2. The portion of the Stone Field Community Building, which is the subject
of this License, is specifically described in the site plan attached hereto
as "Exhibit A" and incorporated herein by this reference ("License
Area"). The Stone Field Community Building, including any parking
areas, is referred to herein as the "Site."
1.3. Under this License, Licensee has the right and sole discretion to deal
with and manage members of the public who enter the License Area.
1.4. Licensee represents that it is recognized by the State of California as
a 501(c)(3) non -profit organization. Licensee unders tands that its
non-profit status is a substantial inducement for the City to grant this
License. Licensee agrees to maintain its non -profit status as a
condition of this License. Failure to maintain this non -profit status
shall be considered a breach of this License, subject to the
termination provisions set forth in Section 12 herein.
2. Allowable Use s
2.1. Allowable uses include the following:
2.1.1. Administrative office hours shall be Monday through Sunday,
8:00 a.m. - 9:00 p.m.
2.1.2. There shall be a maximum of four (4) workstations in this area.
2.1.3. The maximum number of persons to be in this area at any one
time is ten (10).
2.1.4. The types of activities to take place at this site are
administrative/office functions.
2.1.5. Storage of equipment and supplies are permitted only within
the interior of the office/storage area.
2.1.6. Applicant shall have access to adjacent restroom facilities.
2.2. Licensee shall not utilize the property for any other uses than those
specifically established in this License.
3. Conditions of Operation.
3.1. Licensee shall, at all times, keep City advised of the name, address,
and telephone number of the person responsible for Licensee's
operations in the License Area.
3.2. Licensee shall, at all times, keep City advised of the name and
telephone number(s) of two persons who can be contacted in the event
of an emergency.
3.3. Licensee shall, at all times, take and maintain the utmost caution and
care in every respect of its operation and shall observe and maintain
the highest standard of safety.
3.4. Licensee shall ensur e the facility will stay in compliance with
official capacity, fire codes , and all other mandated safety
requirements.
3.5. Licensee shall submit an annual performance report, due January 15 of
each year, for the prior calendar year, to the Community Services
Department. The report shall include:
3.5.1. Disclosure of all activities the Licensee has conducted both at
the License Area and in the community on an outreach basis.
3.5.2. The number of citizens receiving benefits from activities,
including meetings, classes, events, services.
3.5.3. The city(s) of residence of citizens receiving benefits from
activities, including meetings, classes, events, services.
3.5.4. Description of any routine maintenance of the License Area.
3.5.5. Proof of the Licensee's continued non-profit status.
3.5.6. Information on the total revenue received by the Licensee
during the reporting period, and disclosure of the sources of
that revenue.
3.6. Parking spaces adjacent to the Site shall be shared with other users of
the Stone Field Community Building (Capistrano Unified School
District). No parking spaces shall be reserved for Licensee. City shall
retain the right to exclusive use of parking spaces for City business at
any time.
3.7. All parking must be done in a legal manner (i.e., no double parking).
Overnight parking is not permitted.
3.8. Licensee shall be responsible for ensuring that attendees park in the
permitted areas in a legal manner.
3.9. Licensee shall be responsible for all furniture, equipment, and supplies
for the License Area. All items brought in by Licensee shall be removed
at the end of the term of the License, including any applicable holdover
period. Subject to the holdover period set forth in Section 4 of this
License, City does not grant permission for items to remain in the facility
once the term of the License ends.
3.10. On or before the termination or expiration of this Agreement, the
Licensee shall remove all of Licensee’s personal property from the
Property and shall surrender possession of the Property to the City in
good order and repair to the satisfaction of the City, normal wear and
tear excepted.
3.11. City shall issue up to two (2) keys to the individuals whose names are
provided by Licensee; all keys must be signed-out in accordance with
City procedure. Licensee shall ensure that only the individuals issued
the key shall be authorized to use the key. When a person leaves
Licensee's program, Licensee shall return the key to City so that the
person's name can be removed from City records. Licensee shall not
re-issue any key or allow any sharing or borrowing of the City issued
key.
3.12. The keys issued shall not be copied by Licensee. Additional keys will
be issued at the discretion of the City and shall incur a fee of $50.00.
Lost keys will be replaced for a fee of $250.00.
3.13. Licensee agrees and understands that Capistrano Unified School
District (CUSD) reserves the right to allow groups and individuals to
utilize the adjacent meeting room.
4. Term of License
4.1. The term of the License shall be five (5) years from the Effective
Date. The License may be renewed for one (1) additional five (5)
year term, upon mutual written agreement of both parties.
4.2. In addition, Licensee is hereby granted a 60-day holdover period
with respect to the term, wherein, Licensee may occupy the License
Area f or up to 60 days to accommodate any need Licensee may
have to move its operations to another location. During this holdover
period, Licensee shall continue to pay a monthly fee in the amount
set forth in Section 6 of this License.
4.3. Licensee acknowledges the CUSD Joint Use Agreement shall
expire on January 1, 2048, unless extended pursuant to the terms
of the CUSD Joint Use Agreement. Parties agree that any
extension exercised under this agreement , or the holdover period
shall not ex tend beyond the term of the CUSD Lease Agreement.
Should the CUSD Joint Use Agreement terminate with the City on
January 1, 2048 , Licensee hereby agrees that it shall vacate the
License Area prior to December 31, 2047, and this License
Agreement shall imm ediately terminate on the date the Licensee
provides the City notice of the v acation of the Licensee Area. City
agrees that it will provide Licensee with as much notice as possible,
but Parties agree that that said notice may be less than 60 -days.
5. Utilities
5.1. Licensee shall be responsible for the cost of all utility services
required in conducting its operations in the License Area authorized
under this License. Gas, water and electrical fees are part of the
monthly fee set forth in Section 6 of this License. T elephone,
television, cable, security or alarm services or Internet services and
any other expenses related to these services are the sole
responsibility of Licensee.
5.2. Licensee shall be responsible for opening and closing the License Area
for installation, repairs, and/or removal of these services. City staff will
not meet vendors for delivery, installation, repair, or removal
appointments.
6. Fees .
6.1. I n consideration of the foregoing, Licensee shall pay to the City a
monthly fee in the amount of forty -nine dollars and zero cents
($49.00) and a twenty -five dollar ($25.00) monthly utility fee (Section
5 ), totaling seventy -four dollars and zero cents ($74.00) per month.
6.2. Licensee's monthly fees shall be paid upon License execution of the
Agreement and on the first of each month thereafter.
6.3. Late Fee. Licensee’s failure to pay the monthly fee by the 10th day of
the month will result in a late charge of 10% of the monthly fee.
Licensee acknowledges that late payment by Licensee to Licensor of
any sums due hereunder will cause Licensor to incur costs not
contemplated by this License, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs include, without
limitation, processing, and accounting charges. The parties agree that
this late charge represents a fair and reasonable estimate of the costs
that Licensor will incur by reason of late payment by Licensee.
7. Maintenance, Repairs, and Improvements.
7.1. Restoration Requirement. City retains the right to req uire that
Licensee restore the License Area to its condition prior to
Licensee's occupancy when Licensee vacates the License Area. If
Licensee does not restore the License Area to the original condition
upon vacating the Site, Licensee will be provided (wi thin thirty [30]
days of vacating) with a written explanation of restoration expenses,
along with an invoice for these expenses. Licensee shall pay this
invoice within sixty (60) days of the postage date. Further, any
damage resulting from Licensee's use of the License Area shall also be
corrected at Licensee's sole cost and expense.
7.2. Repairs and Damages. City shall be responsible for any major structural
repairs to the Site, including such items as leaking roofs, plumbing, and
related improvements, providing that the damage to be repaired has not
been caused directly by Licensee's use of the Site. City shall accept
responsibility for the following items: graffiti removal, exterior painting,
exterior lighting, roofing, windows, and doors (excluding window
treatment and screen doors), exterior wall repair, HVAC, plumbing. If
the Site is unusable due to damage or destruction, the monthly fee shall
be suspended until the use of the License Area is restored.
7.3. Custodial Responsibilities. Licensee shall be responsible for all
arrangements and costs to provide custodial service to the License
Area. City shall be responsible for all arrangements to provide custodial
service for the public restrooms on the Site. Licensee and/or the
custodial staff shall be responsible for placing rubbish and recyclable
materials in the appropriate locked dumpster located on the Site.
Licensee shall ensure the dumpster is locked after each use. This
dumpster shall be kept locked at all times when not in use.
7.4. Tenant Improvements. Licensee shall submit to the Community
Services Department, in writing, any desired changes/improvements to
the License Area. This shall include any modifications to existing walls,
ceiling, windows, flooring, doors, lighting, interior, exterior, etc.
Licensee must receive written approval from City prior to making any
improvements or modifications to the License Area. All improvements
and their maintenance shall be the financial responsibility of Licensee
including restoration as defined in Section 7.1.
8. Reservations to City. City reserves the right to enter the Site at any reasonable time
for the purpose of inspection and/or repairs for which the City is responsible, or to
carry out any municipal function. This right shall not be exercised in any manner which
will unreasonably interfere with Licensee's use of the License Area. The City will have
a key to the License Area, for emergency or maintenance purposes.
9. Condition of Premises. Licensee agrees to accept the License Area in "AS IS"
condition and agrees to assume all further liability arising out of the condition of the
License Area once a final inspection is completed jointly by both parties.
10. Insurance
10.1. Time for Compliance. Licensee shall provide evidence satisfactory to
the City that it has secured all insurance required under this Section.
10.2. The Licensee shall secure and maintain, during term of this Agreement,
in amounts not less than specified herein, Commercial General Liability
Insurance, in a form and with insurance companies acceptable to the
City.
10.3. Coverage for Commercial General Liability insurance shall be at least
as broad as Insurance Services Office Commercial General Liability
coverage (Occurrence Form CG 00 01) or exact equivalent and shall
include the following coverage:
10.3.1. Bodily Injury and Property Damage
10.3.2. Personal Injury/Advertising Injury
10.3.3. Premises/Operations Liability
10.3.4. Products/Completed Operations Liability
10.3.5. Aggregate Limits that Apply per Project
10.3.6. Explosion, Collapse and Underground (UCX) exclusion deleted
10.3.7. Contractual Liability with respect to this Agreement
10.3.8. Broad Form Property Damage
10.3.9. Independent Licensees Coverage
10.4. 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; (3) products/completed
operations liability; or (4) contain any other exclusion contrary to the
Agreement.
10.5. 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.
10.6. 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.
10.7. Minimum Policy Limits Required. Licensee shall maintain Commercial
General Liability with a limit of $1,000,000 per occurrence/ $2,000,000
aggregate for bodily injury, personal injury, and property damage.
10.8. Policy Provisions Required
10.8.1. Licensee shall provide the City at least thirty (30) days prior
written notice of cancellation of any policy required by this
Agreement, except that the Licensee 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 Licensee shall deliver renewal certificate(s)
including the General Liability Additional Insured Endorsement
to the City at least ten (10) days prior to the effective date of
cancellation or expiration.
10.8.2. The Commercial General Liability Policy shall contain a
provision stating that Licensee’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.
10.8.3. The retroactive date (if any) of each policy is to be no later than
the effective date of this Agreement. Licensee shall maintain
such coverage continuously for a period of at least three years
after the termination of this Agreement. Licensee 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.
10.8.4. All required insurance coverages, 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
Licensee or others providing insurance evidence in compliance
with these specifications to waive their right of recovery prior to
a loss. Licensee hereby waives its own right of recovery against
City.
10.8.5. 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 Licensee from liability in
excess of such coverage, nor shall it limit the Licensee’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.
10.9. Qualifying Insurers
10.9.1. All policies required shall be issued by acceptable insurance
companies, as determined by the City, which satisfy the
following minimum requirements:
10.9.2. 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.
10.10. Additional Insurance Provisions.
10.10.1. The foregoing requirements as to the types and limits of
insurance coverage to be maintained by Licensee, 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 Licensee pursuant to this
Agreement, including but not limited to, the provisions
concerning indemnification.
10.10.2. 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 Licensee or City will withhold amounts sufficient
to pay premium from Licensee payments. In the alternative,
City may cancel this Agreement.
10.10.3. The City may require the Licensee to provide complete copies
of all insurance policies in effect for the duration of the
Agreement.
10.10.4. 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.
11. Indemnification.
11.1. To the fullest extent permitted by law, Licensee shall defend (with
counsel reasonably approved by the City), indemnify and hold the City,
its officials, officers, employees, agents and volunteers free and
harmless from any and all claims, demands, causes of action, suits,
actions, proceedings, costs, expenses, liability, judgments, awards,
decrees, settlements, loss, damage or injury of any kind, in law or
equity, to property or persons, including wrongful death, (collectively,
“Claims’) in any manner arising out of, pertaining to, or incident t o any
alleged acts, errors or omissions, or willful misconduct of Licensee, its
officials, officers, employees, subcontractors, Licensees or agents in
connection with the performance of the Licensee’s services, this
Agreement, including without limitation the payment of all consequential
damages, expert witness fees and attorneys’ fees and other related
costs and expenses. Notwithstanding the foregoing, to the extent
Licensee’s services are subject to Civil Code Section 2782.8, the above
indemnity shall be limited, to the extent required by Civil Code Section
2782.8, to Claims that arise out of, pertain to, or relate to the negligence,
recklessness, or willful misconduct of the Licensee. Licensee's
obligation to indemnify shall not be restricted to insurance proceeds, if
any, received by the City, its officials, officers, employees, agents or
volunteers.
11.2. Additional Indemnity Obligations. Licensee shall defend, with counsel
of City’s choosing and at Licensee’s own cost, expense and risk, any
and all Claims covered by this section that may be brought or instituted
against the City, its officials, officers, employees, agents or volunteers.
Licensee shall pay and satisfy any judgment, award or decree that may
be rendered against the City, its officials, office rs, employees, agents
or volunteers as part of any such claim, suit, action or other proceeding.
Licensee shall also reimburse City for the cost of any settlement paid
by the City, its officials, officers, employees, agents or volunteers as
part of any such claim, suit, action or other proceeding. Such
reimbursement shall include payment for the City's attorney's fees and
costs, including expert witness fees. Licensee shall reimburse the City,
its officials, officers, employees, agents and volunteers, for any and all
legal expenses and costs incurred by each of them in connection
therewith or in enforcing the indemnity herein provided. Licensee's
obligation to indemnify shall not be restricted to insurance proceeds, if
any, received by the City, its officials, officers, employees, agents and
volunteers.
12. Termination.
12.1. This License may be terminated upon the default of one of the parties.
In the event of a dispute between the parties, the parties shall first meet
and confer regarding the matter. If the dispute cannot be resolved
through a meet and confer session within thirty (30) days of written
notice of a default, then the License may be unilaterally terminated by
the non-defaulting party.
12.2. City and Licensee shall have the right to terminate this License without
cause by giving ninety (90) days advance written notice of termination
to the other party.
12.3. Upon termination of this License, Licensee shall, at Licensee's sole cost
and expense, remove all equipment and materials and restore the
License Area to its original condition, excepting only normal wear and
tear, acts of God and repairs required to be made by City hereunder.
13. Attorneys’ Fees. If any legal action or proceeding arising out of or relating to this
Agreement is brought by either party to this Agreement, the prevailing party shall be
entitled to receive from the other party, in addition to any other relief that may be
granted, the reasonable attorneys’ fees, costs, and expenses incurred in the action or
proceeding by the prevailing party.
14. Governing Law and Venue. This Agreement shall be governed by the laws of the State
of California. Venue shall be in Orange County.
15. Waiver. The City’s failure to insist upon strict compliance with any provision of this
Agreement or to exercise any right or privilege provided herein, or the City’s waiver of
any breach hereunder, shall not relieve the Licensee of any of its obligations
hereunder, whether of the same or similar type. The foregoing shall be true whether
the City’s actions are intentional or unintentional. Further, the Licensee agrees to
waive as a defense, counterclaim, or setoff any , and all defects, irregularities, or
deficiencies in the authorization, execution, or performance of this Agreement as well
as any laws, rules, regulations, ordinances, or resolutions of the City with regard to
this Agreement.
16. Supplement, Modification, and Amendment. No supplement, modification, and/or
amendment of this Agreement shall be binding unless executed in writing and signed
by both Parties.
17. No Assignment without the City’s Consent. The Licensee shall not assign,
hypothecate, or transfer, either directly or by operation of law, this Agreement or any
interest herein without prior written consent of the City. Any attempt to do so shall be
null and void, and any assignee, or transferee shall acquire no right or interest by
reason of such attempted assignment, or transfer. Unless specifically stated to the
contrary in the City’s written consent, any assignment, or transfer shall not release or
discharge the Licensee from any duty or responsibility under this Agreement.
18. No Relocation Benefits. This License is not intended to convey a property interest but
to permit the Licensee to use the property as provided for herein. The Licensee
acknowledges the rights granted by State and/or Federal Relocation Assistance Laws
and regulations and, notwithstanding any other provision of this License, expressly
waives all such present and future rights, if any, to which the Licensee might otherwise
be entitled from the City with regard to this License and the business operated on the
property. The Licensee shall not be entitled to relocation assistance, relocation
benefits, or compensation for loss of goodwill upon the termination of this License.
19. Construction, References, and Captions.
19.1. Simple Construction. It being agreed the Parties or their agents have
participated in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and
not strictly for or against any Party.
19.2. Section Headings. Section headings contained in this Agreement are
for convenience only and shall not have an effect on the construction or
interpretation of any provision.
19.3. Calendar Days. Any term referencing time, days, or period for
performance shall be deemed calendar days and not workdays.
19.4. References to the City. All references to the City shall include, but shall
not be limited to, City Council, City Manager, City Attorney, City
Engineer, or any of their authorized representatives. The City shall have
the sole and absolute discretion to determine which public body, public
official or public employee may act on behalf of the City for any
particular purpose.
19.5. References to the Licensee. All references to the Licensee shall include
all officials, officers, personnel, employees, agents, contractors, and
subcontractors of Licensee, except as otherwise specified in this
Agreement.
20. Relationship Between the Parties. The Parties hereby mutually agree that neither this
Agreement, nor any other related entitlement, permit, or approval issued by the City
for the Property shall operate to create the relationship of partnership, joint venture,
or agency between the City and the Licensee. The License es’ contractors and
subcontractors are exclusively and solely under the control and dominion of the
Licensee. Nothing herein shall be deemed to make the Licensee or its contractors or
subcontractors an agent or contractor of the City.
21. Notices. All notices to be given hereunder shall be in writing and may be made either
by personal delivery or by registered or certified mail, postage prepaid, return receipt
requested. Mailed notices shall be addressed to the parties at the addresses listed
below, but each party may change the address by written notice in accordance with
this Section 21 (Notices). Notices delivered personally will be deemed communicated
as of actual receipt; mailed notices will be deemed communicated as of two (2) days
after mailing.
To City: To Licensee:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Heidi Ivanoff, Community
Services Manager
CREER Comunidad y Familia
31322 Camino Capistrano
San Juan Capistrano, CA 92675
Attn: Angeles Ceballos, Executive
Director
22. Entire Agreement and Severability
22.1. Entire Agreement. This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all
prior negotiations, understandings, or agreements, either written or oral,
express or implied.
22.2. Severability. The invalidity in whole or in part of any provision of this
Agreement shall not void or affect the validity of any other provision of
this Agreement.
23. Binding Effect.
23.1. The Parties. Each and all of the terms and conditions of this Agreement
shall be binding on and shall inure to the benefit of the Parties, and their
successors, heirs, personal representatives, or assigns.
23.2. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
23.3. Not Authorization to Assign. This Section 23 (Binding Effect) shall not
be construed as an authorization for any Party to assign any right or
obligation under this agreement other than as provided in Section 1 7
(Assignment or Transfer).
Signatures on next page.
SIGNATURE PAGE TO LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE CREER COMUNIDAD Y
FAMILIA.
In witness thereof, the Parties here to have executed this Agreement:
City of San Juan Capistrano
A California municipal corporation
CREER Comunidad y Familia
A California nonprofit corporation
By:
________________________________
By:
________________________________
BENJAMIN SIEGEL,
City Manager
ANGELES CEBALLOS,
Executive Director
ATTEST:
By:
_________________________________
MARIA MORRIS,
City Clerk
APPROVED AS TO FORM:
By:
_________________________________
JEFFREY BALLINGER,
City Attorney
Exhibit A
Stone Field Facility
(Aerial View)
Stone Field
Facility
Exhibit A (continued)
Bathroom CREER CUSD
Stone Field Facility
(Aerial View)
Stone Field Facility
(Side View)