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.
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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.
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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
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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
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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.
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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.
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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).
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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
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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]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
CITY OF SAN JUAN CAPISTRANO
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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.
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