23-0620_BOYS & GIRLS CLUB OF CAPISTRANO VALLEY_Memorandum of UnderstandingMEMORANDUM 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 __30_____ day
of ____June______, 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
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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
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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,
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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.
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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
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Exhibit “B”
Master Leasehold Agreement
18
Exhibit “C”
Amended Lease Agreement
19
Exhibit “D”
Professional Services Agreement
20
Exhibit “E”
First Amendment to the Professional Services Agreement
21
Exhibit “F”
Second Amendment to the Professional Services Agreement
24th June
22
Exhibit “G”
Third Amendment to the Professional Services Agreement