23-0620_BOYS & GIRLS CLUB OF CAPISTRANO VALLEY_E13_Agenda ReportCity 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
PREPARED BY: Kristen Hauptli, Senior Management Analyst
DATE: June 20, 2023
SUBJECT: Memorandum of Understanding with the Boys & Girls Clubs of
Capistrano Valley for Afterschool Programming, Summer Day
Camps, and Shared Restroom Use; and, Finding Said Action is
Exempt from the California Environmental Quality Act (CEQA) Per
Section 15061(b)(3).
RECOMMENDATION:
1. Approve and authorize the City Manager to execute a Memorandum of
Understanding with the Boys & Girls Clubs of Capistrano Valley for afterschool
programming, summer day camps, and shared restroom use for a five year term
with one optional five-year extension; and,
2.Find that the proposed action is exempt from the California Environmental Quality
Act pursuant to State CEQA Guidelines Section 15061(b)(3)
DISCUSSION/ANALYSIS:
Since 1997, the Boys & Girls Clubs of Capistrano Valley (BGCCV), a 501(c)(3) non-profit
organization, has provided youth afterschool recreation programming at its Via Positiva
facility located adjacent to the City’s Community Center (25925 Camino Del Avion).
Following a fundraising campaign, the BGCCV constructed the existing Via Positiva
facility and leases the land at no cost from the City. In addition to the lease, the City and
BGCCV entered into a 2016 Memorandum of Understanding (MOU) to define the terms
to remodel the City’s gymnasium restrooms for shared use between the public and
BGCCV members and, in 2018, the City and BGCCV entered into a Professional Services
Agreement (PSA) for aftershool recreation programming.
6/20/2023
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City Council Agenda Report
June 20, 2023
Page 2 of 3
Under the exisiting PSA, the BGCCV afterschool academic and recreational programming
operates Monday through Friday, 2:00 p.m. until 6:00 p.m., with extended hours for teens
on Fridays until 10:00 p.m. Last year, BGCCV enrolled 685 members in the afterschool
program at the Via Positiva facility, 479 of whom were San Juan Capistrano residents,
representing the largest user group served at the site. Additionally, the BGCCV offers
transportation services for members residing in the Capistrano Villas neighborhood and
near San Juan Elementary School. In addition to providing afterschool programs, the
current PSA allows BGCCV to utilize the City’s gymnasium for before-school care and
summer camp programming. Under the exisiting PSA, the City contributes $78,058
annually to support BGCCV programming.
The current BGCCV PSA will expire on June 30, 2023, and for efficiency, staff proposes
consolidating the provisions of the exisiting MOU and PSA into one new Memorandum of
Understanding. The real property lease would remain unchanged as a separate
agreement. Pursuant to City Council direction at the May 16, 2023, budget workshop, the
proposed Memorandum of Understanding (Attachment 1) includes an additional $25,000
annual City funding contribution to support BGCCV programming for a total annual
contribution of $103,058. According to BGCCV, the additional funding contribution will
increase academic support services, mental health services, provide personnel wage
increases, and allow for security upgrades. Staff recommends the City Council approve
and authorize the City Manager to execute the proposed five-year agreement, with an
optional five-year extension.
FISCAL IMPACT:
The City’s annual funding contribution is included in the proposed Fiscal Year 2023-24
operating budget.
ENVIRONMENTAL IMPACT:
In accordance with the California Environmental Quality Act (CEQA) the recommended
action is exempt from CEQA per Section 15061(b)(3), the general rule that the CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA. A Professional Services Agreement with the BGCCV to provide an
afterschool recreation and summer day camp program would not be an activity with
potential to cause significant effect on the environment, and therefore is exempt from
CEQA.
PRIOR CITY COUNCIL REVIEW:
• On May 16, 2023, the City Council directed staff to increase the BGCCV annual
contribution by $25,000 in the Fiscal Year 2023-24 operating budget.
City Council Agenda Report
June 20, 2023
Page 3 of 3
• On September 4, 2018, the City Council approved a Professional Services
Agreement with BGCCV for the operation of afterschool recreation programming.
• On May 13, 2016, the City Council formally accepted BGCCV’s donation of
services and supplies necessary to complete the restroom remodel project and
directed staff to develop an agreement for shared use of the restrooms. This
agreement was formalized in the August 22, 2016, Memorandum of Understanding
between the City and BGCCV.
• On May 17, 2016, the City Council approved a Second Amendment extending the
Personal Services Agreement with the BGCCV for two years.
• On November 5, 2013, the City Council approved a First Amendment extending
the Personal Services Agreement with the BGCCV for two years and reducing the
BGCCV gymnasium rental rate to $14 per hour.
• On August 7, 2012, the City Council approved a Personal Services Agreement
with the BGCCV for ten months.
• The City Council annually approved an agreement for afterschool recreation
programming at the Via Positiva BGCCV location from 1997 through 2011.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
• On August 20, 2018, the Parks, Recreation, Senior and Youth Services
Commission recommended that the Council approve the Professional Services
Agreement with the BGCCV of Capistrano Valley for three years with two optional
one-year extensions.
NOTIFICATION:
Nicole Watson, Associate Executive Director, Boys & Girls Clubs of Capistrano Valley
Gabriella Littlejohn, Area Director, Boys & Girls Clubs of Capistrano Valley
ATTACHMENTS:
Attachment 1: Proposed Memorandum of Understanding
MEMORANDUM OF UNDERSTANDING
BY AND BETWEEN
THE CITY OF SAN JUAN CAPISTRANO
AND
THE BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY
This Memorandum of Understanding (this “MOU”) is entered into this _______ day of
__________, 2023, 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
(hereinafter the "City") and BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY, a Youth
Development Agency (a 501(c)(3) corporation) (hereinafter "BGCCV"). The City and
BGCCV are sometimes individually referred to as a "Party" and collectively as the
"Parties" in this MOU.
RECITALS:
A.City accepted BGCCV’s offer to build an expanded youth facility of
approximately 11,000 sq. ft. (hereinafter referred to as the "BGCCV Facility")
from private funds, and to that end the Parties entered into a real property
lease dated June 1, 1999 (the “Master Leasehold Agreement"), providing for
the lease of City land to BGCCV and BGCCV's construction of the BGCCV
Facility in accordance with the Site Plan attached to the Master Leasehold
Agreement. The associated lease had a term of 25 years with an option to
extend for an additional 25 years. A copy of the Master Leasehold Agreement
is attached hereto as Exhibit “B” and incorporated herein by this reference.
B.BGCCV completed construction of the BGCCV Facility as of May 31, 2000.
C.In 2001, the City constructed a community gymnasium adjacent to the
BGCCV Facility.
D.On March 6, 2007, the Parties entered into an amendment to the Master
Leasehold Agreement (the “Amended Lease Agreement”) to include the
approximately 7,000-square foot Teen Center and to amend the term of the
Master Leasehold Agreement, extending the initial term to expire 25 years
from March 6, 2007. A copy of the Amended Lease Agreement is attached
hereto as Exhibit “C” and incorporated herein by this reference.
E.On August 22, 2016, the Parties entered into a Memorandum of
Understanding (the “2016 MOU”), whereby the City accepted BGCCV’s
donation of services and supplies necessary to complete the restroom project
which created restrooms designated for public use (“Public Restrooms”) and
upgraded restrooms designated for use by Club members (“BGCCV
Restrooms”) and provided for maintenance of the Public Restrooms and
ATTACHMENT 1
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BGCCV Restrooms. A copy of the 2016 MOU is attached hereto as Exhibit
“C” and incorporated herein by this reference.
F.Section 2 of the Master Leasehold Agreement provides that, as needed, the
Parties will enter into one or more memoranda of understanding to further
define specific obligations of the Parties with respect to common area
maintenance and related matters.
G.BGCCV has the necessary qualifications to provide an afterschool recreation
program for youth at the Boys & Girls Clubs of Capistrano Valley (the
“Afterschool Recreation Program”).
H.On September 4, 2018, the Parties entered into a Professional Services
Agreement for the operation of the Afterschool Recreation Program (the
“Professional Services Agreement”), which provided for the use of the City’s
gymnasium and funding support provided by the City. A copy of the
Professional Services Agreement is attached hereto as Exhibit “D” and
incorporated herein by this reference.
I.On August 30, 2019, the Parties entered into a First Amendment to the
Professional Services Agreement to modify date inconsistencies and grant a
fee waiver for use of the gymnasium for Fiscal Years 2019–2023 (the "First
Amendment”). A copy of the First Amendment is attached hereto as Exhibit
“E” and incorporated herein by this reference.
J.On June 24, 2021, the Parties entered into a Second Amendment to the
Professional Services Agreement to extend its term by an additional ten (10)
months. A copy of the Second Amendment is attached hereto as Exhibit
“F” and incorporated herein by this reference.
K.On June 30, 2022, the Parties entered into a Third Amendment to the
Professional Services Agreement to extend its term by an additional ten (10)
months. A copy of the Third Amendment is attached hereto as Exhibit “G”
and incorporated herein by this reference.
L.The Parties desire to enter into this MOU to revoke the 2016 MOU and to
establish the terms for use of the Parties’ respective facilities and BGCCV’s
services as described herein.
AGREEMENT:
NOW, THEREFORE, BE IT RESOLVED BETWEEN THE CITY AND BGCCV AS
FOLLOWS:
1.Recitals. The recitals are true and correct and are incorporated hereby this reference
as though fully set forth herein.
2.Prior Agreements Rescinded. The 2016 MOU and the Professional Services
Agreement, as amended, are hereby terminated, and the terms of this MOU and the
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Master Leasehold Agreement, as amended, shall be the sole and exclusive controlling
Agreements reflecting the ongoing relationship between the Parties.
3. Term. The term of this MOU shall be five (5) years, with an option to extend for an
additional five (5) years, upon the mutual written agreement of both parties.
4. BGCCV Duties and Responsibilities.
4.1. BGCCV shall utilize the BGCCV Facility exclusively for the purpose of providing
afterschool recreational and other social programs pursuant to BGCCV’s Articles
of Incorporation, Bylaws, the Master Leasehold Agreement, and applicable law.
Expansion of permitted uses is governed by Section 2(c) of the Master Leasehold
Agreement.
4.2. BGCCV Recreational Program and Hours. BGCCV shall provide a high quality,
comprehensive afterschool recreation program (the "Program") for school-age
children, subject to annual membership fees, that shall include the following:
4.2.1. The Program will be conducted Monday through Friday.
4.2.2. Eligible attendees/registrants are children ages seven (7) through eighteen
(18) (each a “Program Member”).
4.2.3. The hours of operation are Monday through Thursday, 7:00 a.m. to
7:00 p.m., and Friday, 7:00 a.m. to 6:00 p.m. This schedule may be modified
to accommodate school minimum days, holidays, or other activities.
4.2.4. At no cost to the City, BGCCV shall provide and fund transportation services
to and from the Program for children attending San Juan Elementary School
and those residing in the neighborhood of the Capistrano Villas.
4.2.5. BGCCV shall provide and fund transportation for Program Members, at no
cost to the City, to and from local attractions and events for Program
Members.
4.2.6. BGCCV shall encourage Program Members to participate in Citywide
events, including, but not limited to, the San Juan Summer Nites Concert
Series, City Fourth of July events, the City Christmas Tree Lighting, the City’s
Spring Eggstravaganza, and, upon the City’s written request, any other or
new event.
4.2.7. BGCCV shall supply all equipment and supplies needed to conduct the
Program. All equipment and supplies shall be in good, operable, and safe
condition.
4.2.8. BGCCV shall obtain and maintain a release of liability/waiver form for each
Program Member in a form approved of by the City.
4.2.9. BGCCV may use City facilities for implementation of Program activities, as
agreed upon in writing by the Parties. However, other City programs have
priority to use such City facilities. Programs hosted by BGCCV in City
facilities may be cancelled on occasion in the event of a conflict with a City
program. The City will make every effort to provide BGCCV with sufficient
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notice of such cancellation. The Parties acknowledge that, in the event of
an emergency, advance notice may not be possible.
4.3. Teen Center Operational Requirements.
4.3.1. BGCCV will monitor the parking lot and all exterior areas outside its facilities,
including but not limited to the BGCCV facility, through one or more exterior
camera systems. BGCCV shall ensure that one or more staff members
actively monitor such camera feeds immediately before, during, and after
Program hours and events. Program Members waiting to be picked up by
an authorized guardian shall be required to wait inside the building.
4.3.2. Evening Events.
4.3.2.1. BGCCV shall ensure that Program Members’ arrival at and departure
from the Community Center complex for any events occurring outside
regular hours (i.e. special evening events) are restricted to specific
times. BGCCV shall ensure that only Program Members attend the
special evening events.
4.3.2.2. BGCCV shall hire private security for any special evening events,
unless BGCCV seeks and receives advance written authorization from
the City waiving this requirement for a particular event. The City is not
obligated to waive this requirement and may approve or deny such
waiver at its sole and absolute discretion. BGCCV shall be solely
responsible for the cost of providing such private security. Waiver of
this requirement for one or more events does not waive this
requirement for any other event at any other time, whether of the same
or different kind.
4.4. Parking.
4.4.1. BGCCV shall ensure that all employees, guests, parents, guardians, and
Program Members park in designated parking areas as shown on Exhibit
“A,” attached hereto and incorporated herein by this reference. When
possible, BGCCV shall offer drive-thru drop off/pickup accommodations for
Program Members.
4.4.2. BGCCV shall keep the designated parking areas well-lit, safe, clean, and
free of debris.
4.5. Lobby Area.
4.5.1. BGCCV shall keep the lobby area free and clear and shall not permit any
Program Members' equipment and personal belongings to be stored there.
4.6. BGCCV Gymnasium.
4.6.1. Gymnasium hours of use.
4.6.1.1. During the school year, BGCCV may use the gymnasium: for before-
school care and activities, from 7:00 a.m. to 8:00 a.m. each weekday;
for youth sport programs, between 2:00 p.m. and 6:00 p.m. on
Mondays, Wednesdays, and Fridays and between 1:00 p.m. and 4:00
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p.m. on Tuesdays and Thursdays. All hours of availability are subject
to use by the City for another City program. City shall give BGCCV
first priority of access to half of the gym and use of outdoor fields when
not being used for programming by the City.
4.6.1.2. Other than during the school year, BGCCV may use the gymnasium
on a schedule as agreed upon by the City in writing.
4.6.1.3. At all times, City reserves priority use of the gymnasium for use by or
in other City programs, classes, and/or events, during which time
BGCCV may not make use of the gymnasium.
4.6.2. BGCCV shall only use the City's gymnasium for basketball, volleyball, and
callisthenic/aerobic fitness activities (i.e. yoga). A foam ball may be used that
is no larger than six inches in diameter. Any other proposed uses require
prior written approval from the Community Services Department. The
following are prohibited within the gymnasium: (1) inflatable and/or oversized
bounce house-like products or activities; (2) the use of any ball other than
basketballs and volleyballs; and (3) kicking any type of ball.
4.6.3. BGCCV is permitted use of the divider curtain, bleachers, and basketball
hoops (together the “Gymnasium Infrastructure”). The City shall provide
training to the BGCCV Athletic Director on proper use of the Gymnasium
Infrastructure. Only City authorized BGCCV 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.
BGCCV shall ensure that no unauthorized person, including but not limited
to any Program Member, uses the control features or sets up the
Gymnasium Infrastructure.
4.6.4. BGCCV may use the gymnasium during the hours set forth in Section 4.6.1.1
at no charge. Any use of the gymnasium outside the hours set forth in
Section 4.6.1.1 is at the sole discretion of City and the City may charge a fee
for such use.
4.6.5. BGCCV 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, BGCCV must maintain the storage
room at all times to allow access sufficient for a clear walk path and
otherwise be compliant with all building and safety code requirements,
whether local, state, or federal. BGCCV staff are only permitted access to
Storage Room Two. BGCCV may add a locker or storage cabinet to hold
BGCCV equipment. BGCCV shall not permit any Program Member to enter
any storage room at any time or for any reason. City is not responsible for
items stored in or on City property, including items lost to theft and/or
damage.
4.6.6. No food or drinks, other than water, are allowed in the gymnasium. BGCCV
shall clean up any water spills immediately.
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4.7. Equipment and Members’ Belongings. BGCCV shall ensure that BGCCV
equipment and Program Members’ personal belongings are stored only in
designated locations.
4.8. Utilities and Maintenance.
4.8.1. BGCCV shall be solely responsible for payment of utilities for BGCCV’
Facility.
4.8.2. BGCCV shall be responsible for all costs of maintenance and any additional
services required as a result of BGCCV’s use of the gymnasium and the
BGCCV facility, including pest control, janitorial services, power washing,
and other related services.
4.8.3. BGCCV Restrooms.
4.8.3.1. BGCCV shall be solely financially responsible for restroom
maintenance, plumbing, and janitorial services of BGCCV Restrooms.
This includes any maintenance or service costs for all building
plumbing serving BGCCV Restrooms. BGCCV shall be solely
financially responsible for any plumbing, maintenance, or janitorial
services for the entire building if such costs were (in the City’s sole
judgment) necessary to respond to, remedy, or abate damage
originating in BGCCV Restrooms, whether caused (in the City’s sole
judgment) by malfunction, lack of maintenance, or misfeasance in or
of BGCCV Restrooms, and whether caused by BGCCV staff, any
Program Member, or any member of the general public.
4.8.3.2. BGCCV shall ensure that Program Members use the BGCCV
restrooms and not Public Restrooms.
4.8.3.3. BGCCV shall not permit BGCCV Restrooms to be accessible to the
public. BGCCV shall direct members of the general public to use the
Public Restrooms.
4.8.3.4. BGCCV shall lock BGCCV Restrooms when the gymnasium is not
being used for Program activities. BGCCV shall provide a copy to the
City of any and all key(s) necessary to access BGCCV Restrooms.
4.8.3.5. The City has the right, but not the obligation, to monitor, maintain, and
inspect BGCCV Restrooms. BGCCV shall fully reimburse the City for
all such maintenance costs. The City is not responsible for monitoring,
maintaining, or inspecting BGCCV Restrooms.
4.8.3.6. To deter usage by the public, BGCCV may install, at its sole cost and
expense, signage on the door leading from the gymnasium to the
BGCCV Restrooms. Such signage must be submitted in writing to the
Community Services Department and approved before installation.
4.9. Damage to City Property. BGCCV shall be financially responsible for any damage
to the City Property arising directly out of BGCCV usage of such areas or adjacent
areas. This includes, but is not limited to, damage to the gymnasium, plumbing,
lobby, patio, courtyard, outside field space, parking lot, and Community Center.
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In the event such damage does occur, BGCCV shall be responsible for full
payment of the City’s insurance deductible.
4.10. Security and Club Access.
4.10.1. The City permits the maintenance and replacement of BGCCV’s
existing safety cameras on the exterior of the complex at BGCCV’s
sole expense. No additional safety cameras shall be installed by
BGCCV without the City’s written approval.
4.10.2. Upon request, BGCCV shall provide the City access to and copies of
all recordings and/or data created by and/or stored in BGCCV’s safety
cameras.
4.10.3. BGCCV shall supply the City with copies of all keys and/or access
codes used in connection with the BGCCV facility.
4.11. Reports. BGCCV shall provide the following reports to City:
4.11.1. Accident/Incident Reports. BGCCV shall report to the City any
accident or incident occurring before, during, or after any Program
activities of which BGCCV or any of its employees becomes aware.
Reports shall be completed and submitted to the City within twenty-
four (24) hours of the events described.
4.11.2. Facility Damage Report. BGCCV shall report to City any damage to
the BGCCV Facility, the gymnasium, or any other City property within
twenty-four (24) hours of such damage or its discovery by BGCCV or
any of its employees.
4.11.3. Year-end Report. BGCCV shall provide a year-end summary to the
City by January 15 of each calendar year. The year-end summary
shall include the following data for the previous year, broken down as
follows:
4.11.3.1.1. The number of registered members;
4.11.3.1.2. The amount spent per member;
4.11.3.1.3. The cost of membership per member;
4.11.3.1.4. An annual Pro Forma spreadsheet by month;
4.11.3.1.5. A copy of the monthly calendar of events and special activities;
and
4.11.3.1.6. A summary of all Accident/Incident Reports and all Facility
Damage Reports.
4.11.4. Inspection of Records. Books, documents, papers, accounting records, and
other evidence pertaining to costs incurred shall be maintained by BGCCV
and made available to the City for inspection at all reasonable times during
the term of this MOU and for ten (10) years from the date of final payment
under this MOU.
5. City Duties and Responsibilities
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5.1. Parking Area. The City shall be financially responsible for the maintenance and
repair of the adjacent parking area that serves the City and the BGCCV Facility.
5.2. Maintenance and Janitorial Services. The City shall be responsible for
maintenance and janitorial services for the gymnasium, lobby, and Public
Restrooms, except for any costs and expenses caused by BGCCV, any Program
Member, or the use of the BGCCV Restrooms.
5.3. Compensation to BGCCV by City. In full consideration for the operation of the
Program, inclusive of all expenses, the City shall pay BGCCV an amount not to
exceed the sum of $103,058 annually. BGCCV shall submit to the City an invoice
reflecting one-twelfth of such amount on a monthly basis ("Monthly Invoice"). The
City shall pay all uncontested amounts reflected on such Monthly Invoice within
ninety (90) calendar days.
5.4. Site Visits. The City shall have the right to access the gymnasium, the BGCCV
Facility, the BGCCV Restrooms, and any part thereof at any time during the term
of this MOU, without prior notice to BGCCV. The City shall not hinder the normal
operation of BGCCV’s services. The City shall enter the BGCCV Facility using
the front entrance, when feasible.
6. Reciprocal Use of Facilities and Sharing of Common Area Maintenance.
6.1. Reciprocal Use in General. The City and BGCCV agree that there shall be
reciprocal use of the BGCCV Facility, City Community Center, City Gymnasium,
City Lobby, CitySports Park, and Outdoor Courtyard, consistent with the
provisions of this MOU. Damages that occur as a result of use by either Party, its
employees, agents, permittees, or invitees will be the sole responsibility and
expense of such Party.
6.2. Facility Application Process. Either Party desiring to use the other's facilities shall
first submit a timely facility use application. Approval shall be subject to the
discretion of the Party based upon such factors as scheduling conflicts,
prioritization of programming, and general impact on facility usage and
programming.
6.3. Costs. BGCCV and the City agree to mutually share certain designated BGCCV
and City facilities at no cost to either Party.
6.4. Special Events. Special events which require after hours City staffing are subject
to the facility application process and City may charge BGCCV applicable fees.
7. BGCCV’s Employees. The Parties agree that BGCCV’s employees exclusively serve
BGCCV and advance BGCCV’s purpose, and are not entitled to any rights or benefits
afforded to the City’s employees. Any personnel performing services under this MOU
on behalf of BGCCV, including but not limited to consultants and volunteers, are also
not be employees of the City, and shall at all times be under BGCCV’s exclusive
direction and control. BGCCV’ shall pay all wages, salaries, and other amounts due
such personnel in connection with their performance of services under this MOU, and
as required by law. BGCCV’ shall be responsible for all reports and obligations
respecting such additional personnel, including but not limited to Social Security taxes,
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income tax withholding, unemployment insurance, disability insurance, and worker’s
compensation insurance.
8. Insurance.
8.1. BGCCV shall not commence or continue Program operations until the City has
received proof of insurance required under this section. In addition, BGCCV shall
not allow any subcontractor to commence work on any subcontract until it has
secured all insurance required under this section.
8.2. Commercial General Liability. BGCCV shall take out and maintain, during the
performance of all work under this MOU, in amounts not less than specified
herein, Commercial General Liability Insurance, in a form and with insurance
companies acceptable to the City.
8.2.1. Coverage for Commercial General Liability insurance shall be at least as
broad as the following:
8.2.1.1. Insurance Services Office Commercial General Liability coverage
(Occurrence Form CG 00 01) or exact equivalent.
8.2.1.2. Commercial General Liability Insurance must include coverage for the
following:
8.2.1.2.1. Bodily Injury and Property Damage
8.2.1.2.2. Personal Injury/Advertising Injury
8.2.1.2.3. Premises/Operations Liability
8.2.1.2.4. Products/Completed Operations Liability
8.2.1.2.5. Aggregate Limits that Apply per Project
8.2.1.2.6. Explosion, Collapse and Underground (UCX) exclusion
deleted
8.2.1.2.7. Contractual Liability with respect to this Contract\
8.2.1.2.8. Broad Form Property Damage
8.2.1.2.9. Independent Contractors Coverage
8.2.2. The policy shall contain no endorsements or provisions limiting coverage for
any of the following: (1) contractual liability; (2) cross liability exclusion for
claims or suits by one insured against another; (3) products/completed
operations liability. Nor may such policy contain any other exclusion contrary
or inimical to this MOU.
8.2.3. The policy shall give the 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.
8.2.4. The general liability program may utilize either deductibles or provide
coverage excess of a self-insured retention, subject to written approval by
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the City, and provided that such deductibles shall not apply to the City as an
additional insured.
8.2.5. Automobile Liability.
8.2.5.1. At all times during the performance of the work under this MOU,
BGCCV 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.
8.2.5.2. 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).
8.2.5.3. The policy shall give the City, its officials, officers, employees, agents,
and City-designated volunteers additional insured status.
8.2.5.4. 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.
8.2.6. Worker’s Compensation/Employer's Liability.
8.2.6.1. If BGCCV intends to employ employees to perform services
under this Agreement, BGCCV 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
worker’s compensation insurer to endorse the policy to waive
subrogation in favor of the City.
8.2.7. BGCCV Sexual Abuse and Molestation Liability. Throughout the term of this
MOU, BGCCV 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
aggregate. Coverage may be provided as part of general liability coverage,
or as a separate policy.
8.3. Minimum Policy Limits Required.
8.3.1. The following insurance limits are required for the MOU:
Combined Single Limit
Commercial General Liability $2,000,000 per occurrence/
$4,000,000 aggregate for bodily
injury, personal injury, and property
damage
11
Automobile Liability $5,000,000 per occurrence for
bodily injury and property damage
Employer's Liability $1,000,000 per occurrence
Sexual Abuse & Molestation
Liability
$2,000,000 per occurrence
$4,000,000 aggregate
Workers’ Compensation $1,000,000
8.3.1.1. Defense costs shall be payable in addition to all limits.
8.3.1.2. 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 MOU.
8.4. Evidence Required. Prior to execution of the MOU, BGCCV 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.
8.5. Policy Provisions Required. BGCCV shall provide the City at least thirty (30) days’
prior written notice of cancellation of any policy required by this MOU. If any of
the required coverage is cancelled or expires during the term of this MOU,
BGCCV 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.
8.6. The Commercial General Liability Policy and Automobile Policy shall each contain
a provision stating that BGCCV'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.
8.7. The retroactive date (if any) of each policy is to be no later than the effective date
of this MOU. BGCCV shall maintain such coverage continuously for a period of
at least three years after the completion of the work under this MOU. BGCCV
shall purchase a one (1) year extended reporting period if: (a) the retroactive date
is advanced past the effective date of this MOU; (b) the policy is cancelled or not
renewed; or (c) the policy is replaced by another claims-made policy with a
retroactive date subsequent to the effective date of this MOU.
8.8. 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
12
officials, officers, employees, agents, and volunteers or shall specifically allow
BGCCV or others providing insurance evidence in compliance with these
specifications to waive their right of recovery prior to a loss. BGCCV hereby
waives its own right of recovery against City, and shall require similar written
express waivers and insurance clauses from each of its subcontractors.
8.9. 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.
8.10. Further the limits set forth herein shall not be construed to relieve BGCCV from
liability in excess of such coverage, nor shall it limit BGCCV'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 MOU or law.
8.11. Qualifying Insurers.
8.11.1. All policies required shall be issued by acceptable insurance companies,
as determined by the City, and shall satisfy the minimum requirements
set forth in this Section 8.
8.11.2. 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.
8.12. Additional Insurance Provisions.
8.12.1. The foregoing requirements as to the types and limits of insurance
coverage to be maintained by BGCCV, 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 BGCCV
pursuant to this MOU, including but not limited to, the provisions
concerning indemnification.
8.12.2. If at any time during the life of the MOU, any policy of insurance required
under this MOU does not comply with these specifications or is canceled
and not replaced, the City has the right, but not the obligation, to obtain
the insurance it deems necessary and any premium paid by the City will
be promptly reimbursed by BGCCV. In the alternative, the City will
withhold amounts sufficient to pay premium from BGCCV payments.
Further in the alternative, the City may cancel this MOU.
8.12.3. The City may require BGCCV to provide complete copies of all insurance
policies in effect for the duration of the Program.
8.12.4. 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 MOU.
9. Indemnification. To the fullest extent permitted by law, BGCCV shall defend (with
counsel of City's choosing), indemnify, and hold the City, its officials, officers,
employees, volunteers, and agents free and harmless from any and all claims,
13
demands, causes of action, costs, expenses, liability, loss, damage or injury of any
kind, in law or equity, to property or persons, including wrongful death, in any manner
arising out of, pertaining to, or incident to any acts, errors, omissions, or willful
misconduct of BGCCV, its officials, officers, employees, subcontractors, contractors,
volunteers, or agents in connection with the performance of the BGCCV's services,
the Program, or this MOU, including without limitation the payment of all damages,
expert witness fees, attorneys’ fees, and other related costs and expenses. BGCCV's
obligation to indemnify shall not be restricted to insurance proceeds, if any, received
by BGCCV, the City, its officials, officers, employees, agents, or volunteers. BGCCV’s
indemnity obligations shall survive the termination of this MOU.
10. Termination. In the event of a Party’s alleged default in the performance of its
obligations under this MOU, the Parties agree that there shall be an informal meet and
confer process wherein the Parties communicate in writing as to the perceived default
and how the default can be resolved. If the matter is not resolved within ten (10)
calendar days of first written notice of the alleged default, or such extended period of
time as otherwise agreed to by the Parties in writing, formal redress of a default shall
be governed by Section 5 of the Master Leasehold Agreement.
11. Notice.
11.1. All notices shall be personally delivered, mailed, or emailed to the below-listed
designated representatives.
11.2. Designated Representatives.
City and BGCCV shall each designate one (1) person to be its designated
representative, who shall serve as the primary contact for each Party (its
"Designated Representative"). If either Party makes a change to the Designated
Representative, that Party shall notify the other Party of said change in writing
within five (5) working days. BGCCV, through its Designated Representative or
his/her designee, will attend City staff, community, Commission, or City Council
meetings as requested by the City.
To City:
City of San Juan Capistrano
25925 Camino Del Avion
San Juan Capistrano, CA 92675
Attn: Heidi Ivanoff, Community Services Manager
To BGCCV:
Boys & Girls Clubs of Capistrano Valley
1 Via Positiva
San Juan Capistrano, CA 92675
Nicole Watson, Associate Executive Director
12. Compliance with Law. BGCCV shall comply with all applicable laws, ordinances,
codes, and regulations of federal, state, and local government.
14
13. Laws and Venue. This MOU shall be interpreted in accordance with the laws of the
State of California. If any action is brought to interpret or enforce any term of this
MOU, the action shall be brought in a state or federal court situated in the County of
Orange, State of California.
14. Third Party Rights. Nothing in this MOU shall be construed to give any rights or
benefits to anyone other than the City and BGCCV.
15. Equal Opportunity Employment. BGCCV represents that it is an equal opportunity
employer and that it shall not discriminate against any employee or applicant for
employment because of race, religion, color, national origin, ancestry, sex, age, or
other interests protected by the State or Federal Constitutions and applicable law.
Such non-discrimination shall include, but not be limited to, all activities related to
initial employment, upgrading, demotion, transfer, recruitment or recruitment
advertising, layoff, or termination.
16. Entire Agreement.
16.1. This MOU, with its exhibits, represents the entire understanding of City and
BGCCV as to those matters contained herein, and supersedes and cancels any
prior or contemporaneous oral or written understanding, promise, or
representation with respect to those matters covered hereunder. Each Party
acknowledges that no representations, inducements, promises, or agreements
have been made by any person which are not incorporated herein, and that any
other such representations, inducements, promises, and agreements shall be
void.
16.2. This MOU may not be modified or altered except in writing signed by both
Parties hereto.
17. Severability. A determination by a court of competent jurisdiction as to the
unenforceability, invalidity, or illegality of any provision(s) of this MOU shall not render
the provisions unenforceable, invalid or illegal.
18. Successors and Assigns. This MOU shall be binding upon and shall inure to the
benefit of the successors in interest, executors, administrators, and assigns of each
party to this MOU. However, BGCCV shall not assign, delegate, or transfer by
operation of law or otherwise any or all of its rights, burdens, duties, or obligations
without the prior written consent of the City. Any attempted assignment without such
consent shall be invalid and void.
19. Non-Waiver. None of the provisions of this MOU shall be considered waived by either
Party, unless such waiver is set forth in writing. A waiver of one condition or breach
of this MOU shall not be construed or interpreted as a waiver of any other condition
or breach of this MOU, whether of the same or different nature, or before or after
occurring.
20. Counterparts and Facsimile signatures. This MOU may be executed by the Parties in
counterparts, which counterparts shall be construed together and have the same
effect as if all the Parties had executed the same instrument. Counterpart signatures
may be transmitted by facsimile, email, or other electronic means and have the same
force and effect as if they were original signatures.
EXHIBIT "A"
Parking Map
17
Exhibit “B”
Master Leasehold Agreement
REAL PROPERTY LEASE
This Real Property Lease (the "Agreement") is entered into this /
Sr
day of
U1he 1999, by and between the City of San Juan Capistrano (hereinafter
City"), and Boys&Girls Club of Capistrano Valley, a non-profit corporation, (hereinafter
Lessee").
RECITALS:
WHEREAS, Lessee desires to lease certain real property from City to construct and
operate a Boys and Girls Club facility, and
WHEREAS, City and Lessee have previously entered into a memorandum of
understanding dated August 18, 1998 providing for certain terms and conditions governing
the timing of the commencement of the lease and the operation of the Club facility,
NOW, THEREFORE, City and Lessee hereby mutually agree as follows:
Section 1. Lease of Premises.
City hereby leases to Lessee and Lessee hereby leases from City, in accordance with
the terms of this Agreement, that certain vacant real property situated in the City of San Juan
Capistrano, County of Orange, State of California, more particularly described in Exhibit
A", attached and incorporated herein by reference. The real property described in Exhibit
A" and shown on the Site Plan, attached and incorporated herein by reference as Exhibit
B", is hereinafter called the "Premises". The Premises consists of approximately Eleven
Thousand (11,000) square feet of land and is located adjacent to City's Community Center
facility.
Section 2. Purposes of the Leasehold.
a) Construction of Lessee's Facility. The purpose of this lease is to enable
Lessee to acquire sufficient land to construct and operate a non-profit Boys & Girls Club
facility (the "Facility"). The site plan layout for the Facility is set forth in the Site Plan
attached as Exhibit "B".
b) Timing of the Construction of the Facility. Lessee agrees to commence
construction of the Facility by not later than September 1, 1999. Completion of the Facility
shall occur by not later than August 1, 2001.
c:\wpwin60\wpdo \boys&grl\l s .agr 1-05/25/99
SC
c) Permitted Uses of the Facility. Once completed, Lessee's Facility shall
be used solely and exclusively to provide recreational and other social programs to persons
within the City consistent with Lessee's Articles of Incorporation, By-Laws, and other
relevant regulations. Other permitted uses are those as set forth in Exhibit "C," attached and
incorporated herein by reference. In the event that Lessee desires to expand these permitted
uses, then Lessee shall make formal application to the City Council for authorization to
expand uses.
Lessee covenants and agrees to use the Premises for the above-specified
purposes and to diligently pursue said purposes throughout the term hereof. In the event that
Lessee fails to use the Premises for said purposes, or uses the Premises for purposes not
expressly authorized herein, the Lessee shall be deemed in default under this Agreement and
subject to the termination provisions of section 5 of this Agreement. Lessee shall not use the
Premises in any manner which disturbs the quiet enjoyment and use of the adjacent
community center, gymnasium, or Sports Park Complex.
Lessee further covenants and agrees not to use, or permit the use of, the
Premises or any portion of the Premises in any manner or for any purpose that is in any way
in violation of any valid law, statute, ordinance or regulation of the United States, the State
of California, the City of San Juan Capistrano, or any other federal, state, county, or local
governmental agency, body or entity with applicable legal jurisdiction.
d) Condition and Maintenance of Facility and Improvements. Lessee shall
assume full responsibility and costs for the maintenance of the Premises and Facility
throughout the term of this Agreement. Lessee shall take all necessary action to maintain and
preserve the Premises in a decent, safe, healthy and sanitary condition satisfactory to Lessee
and in compliance with all applicable laws. In addition, the parties intend to enter into a
memorandum of understanding to further define specific obligations with respect to common
area maintenance.
Section 3. Lessee's Funding of Proiect as Condition Precedent to Effective Date of
Leasehold.
a) Funding in Place As a Condition Precedent. This lease shall not become
legally effective until such time as Lessee has presented written proof to City that: (a) it
raised sufficient funding to finance one hundred percent (100%) of the estimated cost of the
project, or such lesser amount as determined by the Office of the City Manager, and (b)
secured a legal commitment for at least a one million dollar ($1,000,000) back up
construction loan from a bona fide commercial bank lender.
c:\wpwin60\wpdoca\boys&grl\l a .agr 2-05/25/99
City acknowledges that Lessee has arranged for a construction loan of up to $1,300,00
from American Sterling Bank. City hereby agrees to guarantee the repayment of said loan
in the event of a default by Lessee. Lessee agrees, however, to expend at least $300,000 of
its current cash on hand as first dollars in toward payment of construction progress payments
as construction on the project begins. In addition, it is the intent of the parties that a
500,000 federal grant shall be expended for construction costs at such time that the federal
grant is made available to the Lessee.
b) Limitations on Lender's Security Interest. Lessee shall insure that any loan
documents with its commercial lender will allow City to assume title to the improvements
and take over the remaining loan balance then owed to the bank in the event of default by
Lessee on its bank loan. Accordingly, Lessee covenants to require its lender to subordinate
its lien rights against Lessee in the event of a loan default.
Section 4. Term and Termination of Lease.
a) Term.. This lease shall be for a term of twenty (25)years from date of
its execution. City grants an option to Lessee to extend this Agreement for an additional 25
year period on the same terms and conditions as set forth in this Agreement providing: i) that
Lessee delivers a written notice to City requesting an exercise of the option to renew at least
180 days prior to the termination of the Agreement, and ii) that City's City Council has not
made a finding and determination at any time 30 days prior to the twenty five year term that
Lessee has demonstrated a consistent pattern of non-compliance with the terms and
conditions of this Agreement over the life of the lease.
b) Special Ternunation Provisions, Failure to Commence Use. In addition
to all other remedies available to it, City may terminate Lessee's tenancy upon written notice
given at any time if Lessee fails to commence to construct the buildings and facilities shown
on the Site Plan and Land Use entitlements within two (2) years, or to commence actual use
of the Premises for the authorized uses within four(4)years from the date of commencement
of the tenancy. Termination of tenancy shall not be construed as a waiver of other remedies.
c) Abandonment by Lessee. In the event that Lessee breaches this
Agreement and abandons the Premises, or terminates the use thereof for a period of sixty
60) days in any one hundred and twenty (120) day time period, the Lessee's tenancy shall
terminate. Termination of tenancy shall not be construed as a waiver of other remedies.
d) Quitclaim of Lessee's Interest. On termination of this lease for any
reason, Lessee shall deliver to City a quitclaim deed in recordable form quitclaiming all its
rights in and to the Premises, including the constructed facilities, subject to the terms of
Owpwin604pdo \boys&p{Ae .aB 3-05/25/99
Section 3. Lessee or its successor-in-interest shall deliver the same within five (5) days after
receiving written demand therefor. City may record such deed only on the expiration or
earlier termination of this Agreement. If Lessee fails or refuses to deliver the required deed,
the City may prepare and record a notice reciting Lessee's failure to execute this lease
provision and the notice will be conclusive evidence of the termination of this Agreement
and all Lessee's rights to the Premises.
e) Surrender of Premises. At the expiration or earlier termination of
Lessee's tenancy, Lessee shall surrender the Premises to City free and clear of all liens and
encumbrances, except those resulting from City activity, or liens and encumbrances which
existed on the date of the execution of this Agreement by City. The Premises, when
surrendered by Lessee, shall be in safe and sanitary condition, free from hazardous or toxic
waste or material, environmental pollution or other contamination and shall be in as good
condition as at the commencement of this Agreement, absent normal wear and tear.
f) Time of Essence. Time is of the essence of all the terms, covenants,
conditions and provisions of this Agreement.
Section 5. Performance and Default Requirements.
a) Operational Issues. In the event that the Lessee experiences significant
operational problems, including but not limited to a lack of proper facilities maintenance, a
consistent pattern of unresolved conflicts between City and Lessee, significant decline of
program participation below established goals, and unreasonable and unresolved police calls
pertaining to Lessee's Club Facility, then the City Council of City reserves the right to
consider initiating a process for the possible assumption by City of interim day-to-day Lessee
Club management for the purpose of insuring successful performance of the Lessee's Club
youth program.
The process shall be:
1) The City Council of City may call for a hearing after giving written
notice to Lessee for the purpose of requesting a Panel Review for any of the above-stated
operational problems.
Panel Review" is defined to mean a Panel, consisting of two (2)
members of the City Council, two (2)members of the Club's Board of Directors, and two (2)
members of the Capistrano Unified School District, which shall conduct one or more
meetings in compliance with the Brown Act in review of the question put to it by the City
Council.
c:\wpwin60\vgxl c%ays&grl\l s .agr 4—05/25/99
2) If, after conducting a hearing, the City Council votes by simple
majority of its entire membership to initiate a Panel Review, then a written statement of the
issue shall be transmitted to the Panel for review.
3) The Panel may elect to recommend to the City Council and the Club
that the management be assumed, or not assumed by the City, or, in the alternative,
recommend other appropriate courses of action.
4) Thereafter, the matter shall be heard by the City Council as soon as
reasonably practicable. The Council shall not vote to assume the day-to-day management
in the event that the Panel recommends against such an assumption of management.
The Club shall be given a full opportunity to address the City Council
regarding this matter prior to the City Council making a final determination on the issue.
5) In the event that the City Council unilaterally votes to assume the
day-to-day management of the Club on an interim basis and consistent with the steps set
forth herein, the City shall then deliver notice to the Club within twenty-four(24) hours of
such decision. The Club shall then take immediate steps to coordinate with City.
In the event that the Club does not comply with this subsection, then the
leasehold shall be deemed to be void and forfeited by the Club.
b) Default. If Lessee shall fail to comply with any of the terms, covenants
or conditions of this Agreement, City shall serve a written notice of default upon Lessee.
Lessee shall cure such default within thirty (30) days, providing such default can be
reasonably cured within thirty (30) days. If the default requires more time to cure, then
Lessee shall commence the cure within thirty (30) days' notice of the default and complete
the cure within a reasonable period of time as specified by the City notice of default. If the
Lessee still has not cured the default, then City may, at its option, and without further notice
or demand, terminate this Agreement and enter upon the Premises and take possession
thereof, and remove any and all persons therefrom with or without process of law.
Section 6. Rent.
In consideration of the public benefits Lessee will provide to the community, no rent
shall be required for this leasehold.
cAwpwin60\wpdo \boys&gr1\J se.ag S'05/25/99
0
Section 7. Insurance and Indemnity.
a) Insurance Requirements. Lessee shall maintain at all times during the term
of this lease satisfactory general liability and premises liability insurance in the amount of
not less than One Million Dollars ($1,000,000) and reasonable fire insurance in a form
acceptable to the Office of the City Attorney. City shall be named as an additional named
insured. Other terms and conditions, including cancellation provisions and endorsement
forms, shall be reviewed and approved by the Office of the City Attorney.
b)Indemnity. Lessee shall indemnify, save and defend City, its elected and
appointed officials, and employees harmless from and against any and all claims, demands,
suits, actions and proceedings, of any kind or nature, for damages to property or injuries to
or death of any persons arising out of Lessee's actions and activities as Lessee of the subject
Premises.
City shall indemnify, save and defend Lessee, its directors and employees,
harmless from and against any and all claims, demands, suits, actions and proceedings, of
any kind or nature, for damages to property or injuries to or death of any persons due solely
to the performance of any action by City under this Lease.
Section 8. Imnrovements/Liens/Encumbrances and Related Matters.
a)Nature and Quality of Improvements. Lessee shall, at Lessee's sole cost and
expense, construct or cause to be constructed on the Premises the building and facilities
described in the Site Plan in the manner and according to the terms and conditions specified
herein. Lessee shall construct the building project for the permitted use herein, subject to
prior receipt of applicable city land use permits. Minor, technical deviations between the
plans and specifications and in field construction activity shall not be deemed to constitute
a breach of this Agreement. However, Lessee shall insure that it will coordinate with its
contractor and city staff to insure that the final construction is satisfactorily consistent with
Lessee's plans and specifications for the Facility.
Lessee agrees that its contractor shall provide faithful performance and labor
and materials bonds equal to one hundred percent (100°/x) of the cost of the project. In
addition, Lessee shall insure that its contractor maintains general comprehensive liability
insurance in an amount of at least One Million Dollars ($1,000,000) combined single limit.
The bonds and the insurance shall both be pre-approved by the Office of the City Attorney.
The project shall be constructed in accordance with all valid laws, ordinances,
regulations and orders of all federal, state, county, or local governmental agencies or entities
cAwpw 60\wpdo \boys&grhl a .ag 6-05/25/99
having jurisdiction over said Premises, including City, provided, however, that any structure
or other improvement erected on said Premises, including the building project, shall be
deemed to have been constructed in full compliance with all such valid laws, ordinances,
regulations, and orders when a valid final certificate of occupancy entitling Lessee and
tenants of Lessee to occupy and use the structure or other improvement has been duly issued
by the Building Department of the City. All work performed on said Premises pursuant to
this lease or authorized by this lease shall be done in a good, quality manner and only with
new materials of good quality and high standard.
b)Utilities. Lessee agrees to order, obtain, and pay for all utilities and service
and installation charges in connection with the development, occupation and operation of the
leased Premises. Lessee shall, at Lessee's sole cost and expense, construct or cause to be
constructed all facilities necessary to provide utilities, including but not limited to, telephone,
electric, gas, water, sewer and cable television service to the Premises. All utility service
lines shall be placed underground unless otherwise permitted by City. Lessee shall be
responsible for payment of all applicable utility service, connections, standby or other fees,
rates or charges.
c) Liens. Lessee shall not, directly or indirectly, create, incur, assume or
suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect
to all or any portion of the Premises without the prior written consent of City.
d) Encumbrances. Lessee may encumber this Lease, its leasehold estate and
its improvements thereon by deed of trust, mortgage, chattel mortgage or other .,ecurity
instrument to assure the payment of a promissory note or notes of lessee, upon the express
condition that the net proceeds of such loan or loans shall be devoted exclusively to the
purpose of developing and/or improving the leased Premises.
In addition, any such indebtedness shall be subject to the qualifications set
forth in Section 3(b) of this Agreement.
e) Taxes. Except to the extent that Lessee is exempt from payment of
property taxes or possessory interest taxes, Lessee shall pay, before delinquency, all taxes,
assessments, and fees assessed or levied upon Lessee or the Premises, including the land, any
buildings, structures, machines, equipment, appliances, or other improvements of property
of any nature whatsoever erected, installed, or maintained by Lessee or levied by reason of
Lessee's activities related to the a Premises, including any licenses or permits.
f) Signs. Lessee shall not erect or display any banners, pennants, flags,
posters, signs, decorations, marquees, awnings, or similar devices or advertising without the
c:\wpwin60\wpda \boys&grNease.agr 7-05/25/99
prior written consent of City. If any such unauthorized item is found on the Premises, Lessee
shall remove the items at its expense within twenty-four(24) hours of written notice thereof
by City, or City may thereupon remove the item at Lessee's cost. All signs located on the
Premises shall comply with the provisions of any City ordinance regulating signs.
Section 9. Ownership of Improvements.
a) Title Ownership. Any and all buildings, facilities, and improvements
placed or erected on the Premises as part of said building project or otherwise under this
Agreement, as well as any and all other alterations, additions, improvements, and fixtures,
except furniture and trade fixtures, made or placed in or on said Premises by Lessee or
another person shall be considered the personal property of the Lessee and on expiration or
sooner termination of this Lease shall remain on said Premises and become, at City's option,
the property of City free of all liens and claims except as otherwise provided for in this
Agreement.
b) Removal of Improvements. If City elects not to assume ownership of all
or any improvements, trade fixtures, structures and installations, City shall so notify Lessee
in writing thirty (30) days prior to termination or one hundred eighty (180) days prior to
expiration, and Lessee shall remove all such improvements, structures and installations as
directed by City at Lessee's sole cost on or before Agreement expiration or termination. If
Lessee fails to remove any improvements, structures, and installations as directed, Lessee
agrees to pay City the full cost of any removal.
c) Repairs. If any removal of such personal property by Lessee results in
damage to the remaining improvements on the Premises, Lessee shall repair all such damage
to the same condition as existed immediately before such removal.
Section 10. No Assignments.
Lessee shall not assign or hypothecate in any manner this Agreement without the
express written consent of City.
Section 11. Force Majeure.
If the performance by any party of its obligations or undertakings under this
Agreement is interrupted or delayed by any occurrence not occasioned by the conduct of
either party to this Agreement, whether that occurrence is an act of God or public enemy, or
whether that occurrence is caused by war, riot, storm, earthquake, or other natural forces, or
by the acts of anyone not a party to this Agreement, then that party shall be excused from any
c:\wpwin60\wpd=\boys&.pll\lease.ap{ 8-05/25/99
fiuther performance for whatever period of time after the occurrence is reasonably necessary
to remedy the effects of that occurrence.
Section 12. General Provisions.
a)Notices. All notices, demands, consents, or other communications required
to be given under this Agreement shall be accomplished by first class mail, postage prepaid,
and deposited in the U.S. mails, or personally served upon the other party at the address
identified below. The address for delivery of notice can be changed by either party by giving
written notice of the new address.
To City:
George Scarborough, City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
To Lessee:
Mr. Jim Williams
Executive Director
Boys & Girls Club of Capistrano Valley
31371 El Camino Real
San Juan Capistrano, CA 92675
b)Attorney's Fees. In the event any legal action or proceeding is commenced
to interpret or enforce the terms of, or obligations arising out of, this Agreement, or to
recover damages for the breach thereof, the party prevailing in any such action or proceeding
shall be entitled to recover from the non-prevailing party all reasonable attorney's fees, costs
and expenses incurred by the prevailing party.
c) Entire Agreement. This Agreement contains the entire agreement of the
parties hereto with respect to the matters covered hereby, and no other previous agreement,
statement or promise made by any party hereto which is not contained herein shall be
binding or valid.
cAwpwin6Mwpda \boys&VrI\I a .aB 9-05/25/99
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first above written.
CITY OF SAN AN CAPISTRANO
By: I lw'
Jor Greiner, Mayor
ATTEST:
By:
Cheryl Johns(61, CK Clerk
APPROVED AS TO FORM:
By:qg=
John R. Shaw, Ci Attorney
BOYS & GIRLS CLUB OF
CAISTRANO VALLEY
cAwpwin60\wpdoca\boys&gr1\1 se.agr 10- 05/25/99
18
Exhibit “C”
Amended Lease Agreement
AMENDMENT TO LEASE OF REAL PROPERTY
AGREEMENT BETWEEN THE CITY OF SAN JUAN
CAPISTRANO AND THE BOYS & GIRLS CLUBS OF
CAPISTRANO VALLEY (FORMERLY KNOWN AS THE
BOYS & GIRLS CLUB OF CAPISTRANO VALLEY)
This Amendment to Lease of Real Property Agreement is made this 6th
day of March, 2007, by and between the City of San Juan Capistrano
hereinafter "Lessor"), and The Boys and Girls Clubs of Capistrano Valley
hereinafter "Lessee"), formerly known as the Boys & Girls Club of Capistrano
Valley.
Whereas, On June 1 , 1999, Lessor and Lessee entered into a certain
real property lease ("Real Property Lease") for certain property owned by the
Lessor in the City of San Juan Capistrano for the purpose of allowing Lessee
to construct a Boys & Girls Club center, and
Whereas, Lessor and Lessee desire to further amend the Real Property
Lease for the primary purpose of: (1) adding real property to the demised
premises; and, (2) extending the term of the real property lease, and
NOW, THEREFORE, in consideration of the foregoing, and the
covenants and conditions set forth below, Lessor and Lessee hereby mutually
agree as follows:
Section 1 . Amended Leased Premises. The "Premises" as set forth in
the Real Property lease is amended to include the original leased property
plus that additional property generally depicted Exhibit A, labeled "Proposed
Teen Center," said Exhibit A being attached and incorporated herein by
reference. The parties agree and understand that the additional leased area is
to be developed by Lessee as a teen center.
Lessee agrees to construct the teen center within 12 months following
the City's land use approval for the design and layout of the center, unless
Lessee is otherwise granted additional time by the City Council to complete
project construction.
Section 2. Lease Term. The term of the Real Property Lease will now
be for a term of twenty-five (25) years from effective date of this Amendment
agreement. The option granted by Lessor for an additional twenty-five (25)
year period, as provided for in section 4(a) of the Real Property Lease, shall
remain in full force and effect.
Section 3. Miscellaneous. (a) Section 8(d) of the Real Property Lease
is amended to read as follows:
ATTACHMENP
Lessee may encumber this Lease, its Leasehold estate and
its improvements thereon by deed of trust, mortgage, chattel
mortgage or other security instrument to assure the payment
of a promissory note or notes of Lessee, upon the express
condition that the net proceeds of such loan or loans shall be
devoted exclusively to developing and/or improving the
leased Premises or for operating expenses of the Lessee.
The City allotted $200,000 to the Lessee for the proposed
teen center operations. If the teen center is not constructed
for any reason, the Lessee will return the $200,000
operational funds to the City."
b) All other terms and conditions of the Real Property lease
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date first above written.
CITY OF SAN JUAN CAPISTRANO
ti IV' By:
Ma •r Sam Allevato
Attest:
i 4 P,(i L,--, , _
By: aA
v. garet R. Monahan
Clerk
Approve•I:s to
0 :
By: Ili A 4_,„
Joa
Cit/ Attorney
I
BOYS & GIRLS CLUBS OF
CAPISTRANO VALLEY
By: =,-,:,avv.3:.° =. ^ ' ''.-v
James Littlejohn, Executiverector
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19
Exhibit “D”
Professional Services Agreement
CITY OF SAN JUAN CAPISTRANO
PROFESSIONAL SERVICES AGREEMENT WITH THE
BOYS & GIRLS CLUBS OF CAPISTRANO VALLEY
THIS AGREEMENT is made on the '1-o-A
day of . }e N f 2018, 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. The City wished to engage the Contractor to provide an Afterschool
Recreation Program for youth at the Boys & Girls Clubs of Capistrano Valley.
B. Contractor is duly licensed and has the necessary qualifications to provide
such services.
C. The Parties desire by this Agreement to establish the terms for City to
retain Contractor to provide the services described herein.
AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1.Services.
Contractor shall provide a high quality, comprehensive Afterschool
Recreation Program ("Program") for school age children, subject to annual
membership fees, that shall include the following:
a. Contractor shall provide transportation services to and from the
Program for children residing in the San Juan Elementary
School/Capistrano Villas neighborhoods.
b. The Program will be conducted Monday through Friday,
immediately after school for children ages seven (7) through eighteen
18).
C.The hours of operations of the Program shall be from 2:OOpm to
6:OOpm during the school year with modifications for holiday and minimum
day school schedules. Friday hours shall be extended for teens (ages
thirteen (13) to eighteen (18)) until 10:00 p.m.
d. The Program activities shall be advertised through media releases.
e. A monthly calendar of daily and special events shall be provided to
participants.
f.Contractor shall obtain and maintain a release of liability/waiver
form for each participant in the Program in a form approved of by the City.
g. The Program shall participate in City wide events which include
San Juan Summer Nites, the 4th of July Celebration and the Tree Lighting
Ceremony.
h. Contractor to provide and fund transportation, at no cost to the City,
to and from local attractions and events for Program participants.
i. Contractor shall supply all equipment and supplies need to conduct
the Program. All equipment and supplies shall be in good, operable and
safe condition.
j. Contractor shall keep City property free from damage, and shall
notify City of damage in accordance with section 3(d) herein.
2. Compensation.
a. The City shall pay Contractor for Program, in an amount not to
exceed the sum of $78,058 annually. Contractor shall invoice City on a
monthly basis for services rendered ("Monthly Invoice").
b. Contractor shall maintain sufficient accounting records, timecards,
and other documentation as deemed necessary in order to adequately
document costs for the provisions of services under this Agreement.
C.Within 30 days of receipt of the Monthly Report (section 3(b)
herein) and Monthly Invoice, City shall pay Contractor. Payments begin in
September of each year and the final payment is in June of each year. No
payments shall be due in July or August.
3. Reports.
a. Accident/Incident Reports. Contractor shall report to the City any
accident or incident during Afterschool Recreation Program activities.
Official reports must be completed and submitted to the City within twenty-
four (24) hours of the occurrence, Monday through Friday, and the
following Monday for occurrences on Friday night through Sunday.
b. Monthly_ Reports. Contractor shall provide City with Monthly
Reports, which shall be due to the City by the fifth working day of each
month. Monthly Reports shall include the following:
1) Daily Afterschool Recreation Program attendance records.
2) A monthly financial Pro Forma spreadsheet.
3) A monthly calendar of events and special activities.
C.Year-end Report. Contactor shall provide a year-end summary to
City by January 15 of each year of this Agreement. The year-end
summary shall include, but is not limited to, the following data for the
previous year broken down by City:
1) The average daily attendance.
2) The number of registered members.
3) The amount spent per member.
4) The cost of membership per member.
d. Facility damage report. Contractor shall report to City any damage
to the facility within twenty-four(24) hours of occurrence of damage.
4. Site Visits.
The City shall have the right to visit a program site at any time during the
term of this Agreement, without prior notice to Contractor. City shall not hinder
the normal operation of Contractor's services.
5.Inspection of Records.
Books, documents, papers, accounting records, and other evidence
pertaining to costs incurred shall be maintained by Contractor and made
available at all reasonable times during the contract period and for four (4) years
from the date of final payment under the contract for inspection by City.
6. Term.
a. This agreement shall be in effect for a period of three (3) ten (10)
months terms as follows: September 1, 2018 through June 30, 2019,
September 1, 2019 through June 30, 2020, and September 1, 2021
through June 30, 2021. The City Manager and the Contractor may agree
in writing to two (2) additional ten (10) month extensions (September 1,
2022 to June 30, 2022, and September 1, 2023 to June 30, 2023)
b. City reserves the right to terminate all services of Contractor at any
time upon sixty (60) days written notice, or immediately upon breach of the
Agreement.
7.Facilitv Use.
a. Contractor may use City facilities for implementation of Program
activities, as agreed upon in writing by the parties. However, City
programs have priority use of City facilities. Programs hosted by
Contractor in City facilities may be canceled on occasion in the event of
conflict with a City program. City will make every effort to provide
Contractor with sufficient notice of such cancellation. In case of
emergency, advance notice may not be possible.
b. As part of this Agreement, the Contractor may use the gymnasium
from 2:00 p.m. to 6:00 p.m. each weekday to provide a youth sports
program, provided the City is not using the facility for a City program. For
each hour, or any part thereof, Contractor shall pay the City $14.00 per
hour for use of the gymnasium.
C.In accordance with Administrative Policy No. 61, Contractor shall
only use the City's gymnasium for basketball, volleyball, indoor soccer,
and badminton. Any other proposed uses much receive prior written
approval from the Community Services Department
8. Designated Representatives
a. City and Contractor shall each designate one (1) person to be the
designated representative who shall serve as the primary contact for each
Party ("designative representative"). If either party makes a change to the
designative representative, that party shall notify the other party of said
change within five (5) working days.
b. The Contractor or his/her designee will attend staff, community,
Commission, or City Council meetings as requested by the City.
9,Independent Contractor.
Contractor and its officials, agent and employees shall act and be
independent contractors and not agents or employees of City and shall obtain no
rights to any benefits which accrue to City's employees.
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; (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) Contractor certifies that he/she is aware of the provisions of
Section 3700 of the California Labor Code which requires every
employer to be insured against liability for workers' compensation
or to undertake self-insurance in accordance with the provisions of
that code, and he/she will comply with such provisions before
commencing work under this Agreement.
2) To the extent Contractor has employees at any time during
the term of this Agreement, at all times during the performance of
the work under this Agreement, the Contractor shall maintain full
compensation insurance for all persons employed directly by
him/her to carry out the work contemplated under this Agreement,
all in accordance with the "Workers' Compensation and Insurance
Act," Division IV of the Labor Code of the State of California and
any acts amendatory thereof, and Employer's Liability Coverage in
amounts indicated herein.Contractor shall require all
subcontractors to obtain and maintain, for the period required by
this Agreement, workers' compensation coverage of the same type
and limits as specified in this section.
d.Minimum Policy Limits Required
The following insurance limits are required for the Agreement:
Combined Single Limit
Commercial General Liability 1,000,000 per occurrence/ $2,000,000
aggregate for bodily injury, personal
injury, and property damage
Automobile Liability 5,000,000 per occurrence for bodily
injury and property damage
Employer's Liability 1,000,000 per occurrence
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.
e.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.
f.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 Liability Additional
Insured Endorsement to the City at least ten (10) days prior to the
effective date of cancellation or expiration
g. 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.
h. The retroactive date (if any) of each policy is to be no later than the
effective date of this Agreement. Contractor shall maintain 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.
i.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.
j.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.
k.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.
I.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 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 cancel this
Agreement.
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.
11. Indemnification.
To the fullest extent permitted by law, Contractor shall defend (with
counsel of City's choosing), indemnify and hold the City, its officials, officers,
employees, volunteers, and agents free and harmless from any and all claims,
demands, causes of action, costs, expenses, liability, loss, damage or injury of
any kind, in law or equity, to property or persons, including wrongful death, in
any manner arising out of, pertaining to, or incident to any acts, errors or
omissions, or willful misconduct of Contractor, its officials, officers, employees,
subcontractors, Contractors or agents in connection with the performance of the
Contractor's services, the Project or this Agreement, including without limitation
the payment of all damages, expert witness fees and attorney's fees and other
related costs and expenses. Contractor's obligation to indemnify shall not be
restricted to insurance proceeds, if any, received by Contractor, the City, its
officials, officers, employees, agents, or volunteers.
12. Notice.
All notices shall be personally delivered or mailed to the below listed addresses,
or to such other addresses as may be designated by written notice. These addresses
shall be used for delivery of service of process:
To City: City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Community Services Director
To Contractor: James Littlejohn, Executive Director
Boys & Girls Clubs of Capistrano Valley
1 Via Positiva
San Juan Capistrano, CA 92675
13. Compliance with Law.
Contractor shall comply with all applicable laws, ordinances, codes and
regulations of federal, state and local government.
14. Laws and Venue.
This Agreement shall be interpreted in accordance with the laws of the State of
California. If any action is brought to interpret or enforce any term of this Agreement,
the action shall be brought in a state or federal court situated in the County of Orange,
State of California.
15. Third Party Rights.
Nothing in this Agreement shall be construed to give any rights or benefits to
anyone other than the City and the Contractor.
16. Equal Opportunity, Employment.
Contractor represents that it is an equal opportunity employer and that it shall not
discriminate against any employee or applicant for employment because of race,
religion, color, national origin, ancestry, sex, age or other interests protected by the
State or Federal Constitutions. Such non-discrimination shall include, but not be limited
to, all activities related to initial employment, upgrading, demotion, transfer, recruitment
or recruitment advertising, layoff or termination.
17. Entire Agreement.
This Agreement, with its exhibits, represents the entire understanding of City and
Contractor as to those matters contained herein, and supersedes and cancels any prior
or contemporaneous oral or written understanding, promises or representations with
respect to those matters covered hereunder. Each party acknowledges that no
representations, inducements, promises or agreements have been made by any person
which are not incorporated herein, and that any other agreements shall be void. This
Agreement may not be modified or altered except in writing signed by both Parties
hereto.
18. Severability.
Theunenforceability, invalidity or illegality of any provision(s) of this Agreement
shall not render the provisions unenforceable, invalid or illegal.
19. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of the
successors in interest, executors, administrators and assigns of each party to this
Agreement. However, Contractor shall not assign or transfer by operation of law or
otherwise any or all of its rights, burdens, duties or obligations without the prior written
consent of City. Any attempted assignment without such consent shall be invalid and
void.
20. Non-Waiver.
None of the provisions of this Agreement shall be considered waived by either
party, unless such waiver is specifically specified in writing.
21. Counterparts and Facsimile signatures.
This Agreement may be executed by the Parties in counterparts, which
counterparts shall be construed together and have the same effect as if all the Parties
had executed the same instrument. Counterpart signatures may be transmitted by
facsimile, email, or other electronic means and have the same force and effect as if they
were original signatures.
SIGNATURES ON FOLLOWING PAGE]
SIGNATURE PAGE FOR PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND THE BOYS& GIRLS CLUBS OF CAPISTRANO VALLEY
IN WITNESS WHEREOF, the Parties have executed this Agreement as of thedatefirstwrittenabove.
City of San Juan Capistrano The Boys & Girls Clubs of CapistranoACaliforniamunicipalcorporationValley.
jBy- . 8Y
B J MiN
ity Manag
ATTEST:
ey:
i
RRI
APPROVED AS To FORM'
B '
JE 8 LINGER,
City Attorney
20
Exhibit “E”
First Amendment to the Professional Services Agreement
21
Exhibit “F”
Second Amendment to the Professional Services Agreement
24th June
(signing as Acting CM)
22
Exhibit “G”
Third Amendment to the Professional Services Agreement