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12-0605_MICHAEL SCHWARTZ_Site License and Use AgreementSITE LICENSE AND USE AGREEMENT THIS AGREEMENT is made, entered into, and shall become effective this 5"^ day of June, 2012, by and between the CITY OF SAN JUAN CAPISTRANO (hereinafter referred to as the "City") and MICHAEL SCHWARTZ (hereinafter referred to as the "Contractor"). RECITALS: WHEREAS, in 2011 the City entered into a Joint Facility Use Agreement with the Capistrano Unified School District (CUSD) for the use of the Roller Hockey/Muiti Purpose Facility located at 3 Via Positiva, in the City of San Juan Capistrano, County of Orange, State of California (hereinafter referred to as the "Facility"). The Facility is located within the grounds of Marco Forster Middle School and is depicted on Exhibit WHEREAS, City desires to make the Facilities available to Contractor to refurbish, operate, and maintain the Facility as provided for in this Agreement; and WHEREAS, Contractor is qualified by virtue of experience, training, education and expertise to accomplish the services required under this Agreement. NOW, THEREFORE, City and Contractor mutually agree as follows: Section 1. Scope of Work. The scope of work to be performed by the Contractor shall consist of those tasks as set forth in Exhibit "B," attached hereto and incorporated herein by this reference. To the extent that there are any conflicts between the provisions described in Exhibit "B" and those provisions contained within this Agreement, the provisions in this Agreement shall control. Section 2. Grant of License/Site Plan. City hereby grants to Contractor a license granting Contractor the right to refurbish, operate, and maintain the Facility subject to the conditions set forth in this Agreement. Section 3. Refurbishing of the Facility. 3.1. The refurbishing of the Facility shall be performed in strict accordance with the design attached as Exhibit "C." 3.2. Contractor shall coordinate with CUSD and City during the refurbishing phase so as to avoid an interruption in planned CUSD functions at Marco Forster Middle School. 1 3.3. Contractor shall provide a schedule of planned refurbishing activity which shall be reviewed and approved by City prior to the commencement of the work. 3.4. Contractor shall be solely responsible for providing all utilities to the Facilities. Section 4. The Facility Programs Implementation and Review. 4.1. When the Facility becomes operational, Contractor shall develop and provide to the public a program which involves competitive roller hockey leagues for youth and adults, as well as clinics, tournaments and public and private rentals for community use (which may Include birthday parties, corporate events, and other social gatherings). 4.2. The program shall be submitted to City in writing for approval prior to its implementation. 4.3. The program shall be periodically reviewed at City's discretion to ensure that the program is not causing an undue nuisance, including but not limited to, noise impacts, excessive parking demands, or other public health and safety issues. 4.4. In the event that City determines at its discretion that health and safety problems do exist. Contractor agrees to make reasonable changes as needed pursuant to City's direction. Section 5. Term. The term of this Agreement shall be five (5) years and shall expire on June 30, 2017. Contractor shall have the right to exercise an option to renew the Agreement for an additional two (2)' years by giving written notice of renewal to City not later than January 31, 2017. • Section 6. License Fee. 6.1 Amount. City shall receive a license fee from Contractor for the privilege of operating the Facility in the amount of $250 per month, plus 2% of the gross revenue for all activities conducted on the Facilities. 6.2 Method of Payment. Contractor shall remit payment to City within thirty (30) days of the fifth day each month. Contractor shall provide financial documentation of all revenues for the monthly period with the payment remittance. 6.3. All costs for services provided under this Agreement shall be incurred by Contractor with no financial obligation or reimbursement of costs from the City or the CUSD. 2 Section 7. CUSD Exclusive Access to Facility During School Hours. Notwithstanding the rights granted to Contractor under this Agreement, the parties agree that the CUSD shall have the right to control, coordinate, and/or schedule all use the Facility during regular school hours pursuant to the Joint Facility Use Agreement, as more specifically defined in Section 8 below. Contractor hereby acknowledges receipt of a copy of the 2011 Joint Use Agreement. City, Contractor and CUSD shall mutually work together to coordinate use of the Facilities by CUSD and Contractor. Section 8. Operation and Maintenance of Facilities. 8.1 Operation of Facilities. Contractor shall be responsible for the supervision and management of the Facilities pursuant to this Agreement. 'Contractor shall perform all operations in a competent manner, consistent with the standards of the industry and in accordance with all applicable Federal, State and local regulations, including the City's Municipal Code. Contractor shall obtain, at its sole cost and expense, all governmental permits and authorizations of whatever nature required by any governmental agencies having jurisdiction over Contractor's use of the Facilities. 8.2 Hours of Operation. The hours of operation are within the hours of 4:00 p.m. to 9:30 p.m., Monday through Friday, 8:00 a.m. to 9:30 p.m. on Saturdays, and 9:00 a.m. to 9:30 p.m. on Sundays, and subject to the hours for which the CUSD has exclusive use of the Facilities. 8.3 Exclusive Use by School District. The CUSD shall have exclusive use of the Facilities during normal school hours for Marco Forster Middle School, from 8:00 a.m. to 3:30 p.m., Monday through Friday, for each day that school is in session, including the lunch hour. CUSD may extend the scope of school hours by as much as- 30 minutes before the start time of classes or after the end time of classes, or both, in order to allow sufficient time for students to arrive at or leave the School before Contractor commences its use of the Facilities. 8.4 Condition of Facilities. Contractor accepts the Facility in its present condition, "as is", upon execution of this Agreement. City makes no warranty of the suitability of the Facility for Contractor's operations or other use of the Facility by Contractor and expressly disclaims any warranty or representation with regard to the condition, safety, security or suitability for Contractor's intended use of the Facility. The duly authorized 3 representative of City may enter upon the Facility and all structures and buildings thereon, or any portion thereof, at any time, and from time to time. 8.5 Maintenance of Facility. Contractor shall maintain, at Contractor's expense, the Facilities, including all existing structures and all equipment owned and furnished by Contractor, in a . reasonable state of repair and working order. Contractor agrees, at Contractor's expense, to keep the Facilities clean of trash, debris and rubbish; and to keep fences, and borders of the Premises in good condition and repair at all times, reasonable wear and tear excepted. 8.6 Liens. Contractor will fully and promptly pay for all materials joined or affixed to the Facilities under the authority or direction of Contractor, and fully and promptly pay all persons who perform labor upon the Facilities. Contractor shall not allow or permit to be filed or enforced against the Facilities, or any part thereof, any mechanics', materialmen's, contractors', or subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or construction work, or out of any other claim or demand of any kind. Contractor shall pay or cause to be paid all such liens, claims or demands, including sums due with respect to stop notices, together with attorney's fees incurred by the City or CUSD with respect thereto, within ten (10) business days after notice thereof and shall indemnify, hold harmless and defend the City and CUSD from all obligations and claims made against City or CUSD for the above described work, including attorney's fees. Contractor shall furnish evidence of payment upon request of the City. Contractor may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop notices to the City in compliance with applicable California law. If Contractor does not discharge any mechanic's liens or stop notice for works performed for Contractor, the City shall have the right to discharge same (including by paying the claimant), and the Contractor shall reimburse the City for the cost of such discharge within ten (10) business days after billing. The provisions of this subsection shall survive the termination of this Agreement. 8.7 Third Party Liability. The Contractor shall be responsible and liable for all acts and omissions of all of Contractor's contractors, agents, employees, representatives and any other person or party entering upon the Facilities under the authority or color of this Agreement. 8.8 Surrender Upon Termination. The Contractor shall, at the termination of this Agreement, vacate the Facilities in as good condition as they are in at the time of entry thereon by the 4 Contractor, and shall leave the Facilities free and clear of all rubbish and debris. 8.9 Taxes. Pursuant to Revenue & Taxation Code §107.7, should a property interest be created herein, it may be subject to property taxation and the Contractor may be subject to property taxes levied on such interest. In no event shall the City or CUSD be liable for any taxes owed as a result of this Agreement or the Contractor's use of the Facilities. 8.10 No Relocation Benefits. This Agreement is not intended to convey a property interest but to permit the Contractor to use the Facilities as provided for herein. Contractor acknowledges the rights granted by State and/or Federal Relocation Assistance Laws and regulations and, notwithstanding any other provision of this Agreement, expressly waives all such past, present and future rights, if any, to which the Contractor might otherwise be entitled from the City or CUSD with regard to this Agreement and the operations on the Facilities. Contractor shall not be entitled to relocation assistance, relocation benefits, or compensation for loss of goodwill upon the termination of this Agreement. Section 9. Time of Essence. Time is of the essence in the performance of this Agreement. Section 10. Default. 10.1. If Contractor defaults in the payment of the license fee due to the City, or any additional applicable payments, or defaults in the performance of any of the other covenants or conditions hereof, City may give Contractor notice of such default and if Contractor does not cure any such default within three (3) days, or such other time period as specified in the notice of default, after the giving of such notice, then City may terminate this Agreement on not less than ten (10) days' notice to Contractor. On the date specified in such notice the term of this Agreement shall terminate, and Contractor shall then quit and surrender the Facility to City, but Contractor shall remain liable as hereinafter provided. If this Agreement shall have been so terminated by City, City may at any time thereafter resume possession of the Facility by any lawful means and remove Contractor or other occupants and their effects. 10.2. If the Contractor breaches any covenant or condition of this Agreement, the City may, on reasonable notice to the Contractor (except that no notice need be given in case of emergency), cure such breach at the expense of the Contractor. The reasonable amount of all expenses, including attorney's fees, incurred by the City in so doing shall be deemed additional fees payable on demand. 5 Section 11. Termination Due to Bankruptcy or Insolvency. In the event proceedings in bankruptcy are commenced by the Contractor, or the Contractor is found to be in a state of insolvency, then in such event, the City shall have the right to terminate this Agreement and all further rights and obligations thereunder, by ten (10) days' notice in writing to Contractor, in which event, on the expiration of the ten (10) days from mailing of the notice, this Agreement shall automatically terminate. Section 12. Termination for Convenience. This Agreement may be terminated for any reasons by the City following thirty (30) days written notice. City incurs no liability whatsoever for termination of this Agreement at any time. Section 13. No Assignments. Contractor may not assign, sublet or otherwise transfer its interest under this Agreement without the prior written consent of the City. Any attempted assignment, sublet or transfer made in violation of this provision shall be null and void. Section 14. Independent Contractor. It is agreed that Contractor shall act and be an independent contractor and not an agent or employee of City. Section 15. Limitations Upon Subcontracting. The experience, knowledge, capability and reputation of Contractor were a substantial inducement for City to enter into this Agreement. Contractor shall not contract with any other entity to perform the services required without written approval of the City. If Contractor is permitted to subcontract any part of this Agreement by City, Contractor shall be responsible to City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the work will be considered employees of Contractor. Section 16. Maintenance Cost Records. Contractor shall maintain all books, documents, papers, employee time facility sheet, accounting records, and other evidence pertaining to fees and revenues generated in the operations of the Facility by Contractor, and shall make such records and materials available at its offices for inspection by City at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement. Contractor shall furnish copies of all such materials to City upon request. 6 Section 17. Indemnity. To the fullest extent permitted by law, Contractor agrees to protect, defend, and hold harmless the City and its elective or appointive'boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Contractor, Contractor's agents, officers, employees, subcontractors, or independent contractors hired by Contractor in the performance of the Agreement. The only exception to Contractor's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Contractor. Section 18. Insurance. On or before beginning any of the work called for by any term of this Agreement or use of the Facilities, Contractor, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to the City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Contractor shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Contractor has also been obtained for the subcontractor. Insurance required herein shall be provided by Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A- Class VII or better. 18.1 Comprehensive General Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than three million dollars per occurrence ($3,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 18.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Contractor shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non-owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 7 18.3 Worker's Compensation. If Contractor intends to employ employees to perform services under this Agreement, Contractor shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 18.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement or use of the Facilities, Contractor shall submit the insurance certificates, including the deductible or self- retention amount, and an additional insured endorsement naming City and CUSD, their officers, employees, agents, and volunteers as additional insured as respects each of the following: Liability arising out of activities performed by or on behalf of Contractor, including the insured's general supervision of Contractor; products and completed operations of Contractor premises owned, occupied or used by Contractor; or automobiles owned, leased, hired, or borrowed by Contractor. The coverage shall contain no special limitations on the scope of protection afforded City and CUSD, their officers, employees, agents, or volunteers. 18.5 Notice of Cancellation/Termination of Insurance. The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage's reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. Section 19. Notices. Any notice required to be given under this Agreement shall be in writing and shall be deemed to have been duly given and received if and when personally served, or forty-eight (48) hours after being deposited in the United States mail, first class, postage prepaid, addressed to the intended party at: To City: City of San Juan Capistrano 25925 Camino del Avion San Juan Capistrano, CA 92675 Attn: Cynthia Alexander To Contractor: Michael Schwartz 31831 Peppertree Bend San Juan Capistrano, CA 92675 Section 20. Attorneys' Fees. If any action at law or in equity is necessary to enforce or interpret the terms of 8 this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. Section 21. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). Section 22. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. Section 23. Miscellaneous. a. This Agreement may be modified only by written instrument executed by both parties hereto. b. Any failure by the City to insist upon a strict performance by the Contractor of any of the terms and provisions hereof shall not be deemed to be a waiver of any of the terms and provisions hereof. d. This Agreement shall be governed by the construed in accordance - with the laws of the State of California. e. The parties executing this Agreement warrant that they have authority to bind the respective parties thereto. [SIGNATURE PAGE FOLLOWS] 9 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO 10 THE CITY OF SAN JUAN CAPISTRANO Marco Forster Middle School Roller Hockey/Multipurpose Facility 3 Via Positiva San Juan Capistrano, CA 92675 900D Feet Exhibit A EXHIBIT "B" CITY OF SAN JUAN CAPISTRANO COMMUNITY SERVICES DEPARTMENT ROLLER HOCKEY/MULTIPURPOSE FACILITY OPERATOR SCOPE OF WORK The Operator's services will require a multi-disciplinary team to maintain, operate, coordinate, and schedule public use for the Roller Hockey/Muitlpurpose Facility located on the grounds of the Marco Forster Middle School located at 3 Via Positiva in the City of San Juan Capistrano, The agreement between the Operator and the City will be a four-year term; therefore, since this a relative longstanding partnership, it is Imperative for the Operatorto precisely express through this RFP process its uniquely qualified team that will define policy, ability, experience, competency and accountability, L OPERATIOM OF FACIUTY A. Operator shall incur all expenses associated with managing, operating and maintaining the Roller Hockey/Multipurpose Facility at 3 Via Positiva as a public facility for conducting adult and youth roller hockey-related activities to include league play, practices, tournaments, clinics, and open sport recreational programs. B. Operator shall provide roller hockey-related activities to include league play, practices, toumaments, clinics and open sport recreational programs for youth and adults as agreed upon by Operator and City. C. Operator shall maintain the Roller Hockey/Multipurpose Facility in a clean and safe condition for the operation of athletic activities, including inspecting all surface play to insure the safety of the court. Any deficiencies are to be corrected by the Operator. D. Provide for routine maintenance of the court and surrounding area at the Operator's expense. E- Operator shall submit monthly revenue reports showing monthly gross receipts from the operation. Operator will submit monthly revenue payments to the Community Services Department. 11. MAINTENANCE OF IMPROVEMENTS AND EQUIPMENT A. Operator shall provide ail maintenance (including major repair and replacement) of ail equipment and structures used in the operations of their programs. City shall have the right to direct Operator to perform necessary repairs and maintenance to equipment and structures owned by the Operator or by the City. The construction of temporary or permanent buildings on the area 797092.1 Cily of San Juan Capistrano EXHIBIT"B" RFP'for Roller Hockey/Multipurpose Facility Operator Page 2 used for the Roller Hockey/Multipurpose Facility is subject to design review and approval by City, CUSD and the Division of the State Architect. B. Operator shall staff the Roller Hockey/Multipurpose Facility with trained and competent staff on site to provide for one (1) officiai per game for league and tournament activities and other additional personnel, including the site manager, at all times when the Facility is in use by Operator. C. Operator shall provide trained, competent staff to manage and operate,the facility in a professional and safe manner. Operator shall provide trained and competent officials for the conducting of leagues, tournaments, and other sport activities. Hockey officials shall wear a prescribed uniform, as mutually agreed, while officiating hockey/other sport activities. Hockey officials shall also be required to wear safety equipment to include helmet, and eye protection and shall sign a release form stating that they are aware of the possible hazards and release City, CUSD and Operator of all liability. D. At any time when the Roller Hockey/Multlpurpose Facility Is in operation by Operator, Operator shall provide for the site supervision during that time period. This supervised coverage during non-school hours includes team practices. E. Operator shall appoint a site manager under its direction and control, who shall devote the greater part of his/her time and attention to the operations permitted on the facilities and shall promote, increase, and convenience to the public. Such mangers shall have full authority for the operations under their control. In employing of managers, Operator shall seek individuals with previous roller hockey experience. F. All personnel employed by Operator having supervisory or disciplinary authority over minors shall pass a background check In compliance with California Public Resources Code § 5164. 111. SCHEDULE OF OPERATIONS A. Operator will have access to the facility for operations and will have the authority to control, coordinate, and/or schedule all use of the Roller Hockey/Multipurpose Facility during non-school hours from 3:30 p.m. to 9:00 p.m. Monday through Thursday; Friday 3:30 p.m.to 9:30 p.m., and Saturday through Sun.day from 9:00 a.m. to 9:30 p.m. CUSD shall have the exclusive use of the Roller Hockey/Multipurpose Facility during school hours scheduled between 8:00 a.m. to 3:00 p.m. Scheduled use hours may be changed with CUSD school schedules and a written approval by the City. 797092.1 Cily of San Juan Capistrano EXHIBIT "B" RFP for Roller Hockey/Multipurpose Facility Operator Page 2 IV. CLEANLINESS OF THE AREA SURROUMDING THE ROLLER HOCKEY/MULTtPURPOSE FACIUTY AND PARKiNG LOT A. Operator shall keep the area surrounding the Roller Hockey/Multipurpose Facility in a clean and sanitary condition satisfactory to City/CUSD at ail times. No offensive or refuse matter, nor any substance constituting an unnecessary, unreasonable, or unlawful fire hazard or material detrirnental to the public health shall be permitted or remain thereon, and Operator shall prevent any such matter of material from being or accumulating in the area. The City shall provide appropriate disposal, available at all times, to allow Operator to properly maintain the surrounding area. V. ifEALTH AND SAFETY A. Operator shall correct safety deficiencies and violations of safety practices Immediately and shall cooperate fully with the City/CUSD in the investigation of accidents occurring at the Roller Hockey/Multipurpose Facility, in the event of an injury to a patron or customer, Operator shall ensure that the injured person receives prompt and qualified medical attention and shail summit an Injury report to the City within fourteen (14) days. If Operator falls to correct hazardous conditions which have led to or, in the opinion of the City, could lead to injury, CRy may immediately suspend and/or terminate the Agreement. Vi. PLAYER RELEASE FORMS A. Operator shall not permit any individual to participate in any activity on the Roller Hockey/Multipurpose Facility without first having completed a release form. Such release forms shall be approved by the City of San Juan Capistrano in advance. 797092.! uO.. ligiHX3