14-1118_BLENHEIM FACILITY MANAGEMENT_CC_D14_Agenda ReportTO :
FROM :
City of San Ju
Ag i"""":'!'-H-.u-11
Hans Van Ligten, City
DATE : November 18, 2014
n Capistrano
eport
'"
11/18/2014
D14
SUBJECT: Consideration of a Two-Year Riding Park Management Agreement for
Calendar Years 2015 and 2016 by and between the City of San Juan
Capistrano and Blenheim Facilities Management, LLC
RECOMMENDATION:
By motion, approve the Riding Park Management Agreement for calendar years 2015
and 2016, in the form attached as Attachment 1 to this Report, and authorize the Mayor
to sign the Agreement on behalf of the City.
EXECUTIVE SUMMARY:
The Riding Park consists of 70 acres, which was part of the 2010 Open Space Bond
Measure purchase of 132 acres. The current Riding Park Management Agreement
("Management Agreement") between the City and Blenheim Facility Management, LLC
("BFM") expires on December 31, 2014. The proposed Riding Park Management
Agreement provides (i) a management term of two years commencing on January 1,
2015, and ending December 31, 2016, to conform to IRS rules while generally
maintaining the operational and maintenance requirements of the current Management
Agreement, (ii) and deletes references to compensating Blenheim for providing
additional services to Reata Park, which services are no longer being utilized. Revenue
to the City is reasonably anticipated to be at or above the level received under the
current calendar year 2014 Management Agreement,· which are estimated to be
approximately $240,000. The City has received $232,000 in revenue for the first three
quarters of calendar year 2014.
DISCUSSION/ANALYSIS:
The current Management Agreement (Attachment 2) is a "tax-compliant" management
agreement as required by the Internal Revenue Service Procedure 97-13, which
essentially limits the compensation methods and terms of management agreements for
activities on land acquired by tax-free bonds.
City Council Agenda Report
November 18, 2014
Page 2 of 5
Revenue Procedure 97-13 also lists certain "safe harbor" compensation structures for
management agreements. Our office has determined that a two year management
agreement where the City pays a management fee based on a percentage of gross
revenues is consistent with this safe harbor provision.
The proposed Calendar Years 2015 and 2016 Management Agreement continues the
structure of a tax-compliant management agreement, with some modifications:
• Continue to provide for additional gross revenue amounts to be retained by
the City if gross revenues increase during term: Under the proposed
Calendar Years 2015 and 2016 Management Agreement, the City continues to
retain a portion of all gross revenues, therefore as gross revenues increase, the
amount the City retains also increases.
• Require continuation of BFM responsibility for all expenses in operating
and maintaining the Riding Park parcel: The proposed agreement continues
BFM 's responsibility for all operating expenses which includes maintenance
costs. The City does not incur any costs for the operation of the Riding Park
which remains unchanged.
• Require continuation of the Riding Park equestrian and other sports and
community uses as under the current 2014 Management Agreement: The
proposed Calendar Years 2015 and 2016 Management Agreement maintains
these use requirements. Sports events include various soccer and Ia crosse club
uses . The community events would be similar to those conducted in 2014 , which
included a two-day "Two Steppin" Under the Stars" event and four movie nights.
• Implement additional community access of the Riding Park property: New
Section 2.1.5.3 incorporates on-going discussions that BFM and the City have
been having about increasing public access to the property. The City Manager
and BFM will work together to identify appropriate areas and times for additional
public uses and bring them to the City Council for consideration and approval
within 90 days of approval.
• Restrict the Use of Noise Amplifying Equipment to Certain Hours: The
Calendar Years 2015 and 2016 Management imposes restrictions on use of
sound amplification equipment to address community concerns. Specifically,
amplified speakers systems shall not be utilized in any capacity before 7:00 a.m.
or after 10:00 p.m. Monday through Friday or before 8:00a.m. or after 10:00 p.m.
Saturday and Sunday.
• Continue with substantially and materially the same terms and conditions
as set forth in the 2014 Management Agreement: The proposed Calendar
Years 2015 and 2016 Management Agreement maintains those provisions (e.g.,
termination, insurance, etc.) and the exhibits to the proposed agreement are the
same as the exhibits to the 2014 Management Agreement.
City Council Agenda Report
November 18, 2014
Page 3 of 5
FISCAL IMPACT:
Since the acquisition of the Riding Park property, the City has realized the following
amounts from the operation of the property:
Calendar
Year Amount
$192,148
$200,000
$225,000
2010
2011
2012
2013(1)
2014(2)
$200,000 (plus Reata Park property maintenance)
$240,000 (projected)
(1) Based on BFM providing maintenance services for the Reata Park property valued at $25,000, the annual license fee for
calendar year 2013 was reduced from $225,000 to $200,000, because the City did not actually pay for the service.
(2) Effective January 1, 2014, a tax-compliant management agreement was implemented. The amount listed is the projected
revenue to be retained by the City after payment of the management fee. The amount retained as of September 30, 2014
is $232,040.
The Riding Park property, which is 70 acres of the original 132 acre purchase is
essentially land only; has no potable or non-potable water supply or restroom facilities;
and has minimal improvements. BFM operates the Riding Park property "as-is" and the
Management Agreement requires BFM to provide and pay for all aspects of the
administration, operations and maintenance of the property (including administration
and staffing; utilities; building, restroom and equipment rentals; capital improvements;
grounds maintenance; potable and non-potable water supply; grounds maintenance,
repairs, etc.). Additionally, the Management Agreement requires BFM to provide six (6)
community events at their cost. The City does not incur any costs associated with the
Riding Park property other than the management fee portion of the revenue.
Under the proposed Calendar Years 2015 and 2016 Management Agreement, BFM will
continue to report gross revenues on a quarterly basis to the City's Chief Financial
Officer. Once the gross revenues are confirmed, the City will pay a management fee for
that quarter based on the following percentages of gross revenue generated on an
annual basis, and retain the remainder amount. For administrative simplicity, and as
provided in the agreement, once the gross revenues are confirmed, instead of BFM
paying the gross revenues to the City and the City paying the management fee
percentage shown below, BFM will simply pay the City the City's portion as the City's
retained amount.
CITY MANAGEMENT CITY PERCENTAGE OF
AMOUNT OF FEE PAYMENT GROSS REVENUES
TOTAL GROSS REVENUES PERCENTAGE TO BFM RETAINED
$0.00 to and including $600,000 . 66.66% 33.34%
For each dollar of Gross Revenues over
$600,000 to and including $850,000. 90% 10%
For each dollar of Gross Revenues over
$850,000 to and .including $1,200,000. 97.50% 2.50%
For each dollar of Gross Revenues over
$1,200,000. 95% 5%
City Council Agenda Report
November 18, 2014
Page 4 of 5
For illustration purposes only-based on gross revenues of $1.2 million, the City would
retain $233,790 and pay a management fee to BFM of $966 ,210 to provide and pay for
all aspects of the administration, operations and maintenance of the property. If gross
revenues exceed $1.2 million, the City's retained revenue would increase and the BFM
management fee would increase to cover additional costs. The revenues retained by
the City under the Management Agreement are used to offset the costs of maintaining
the adjacent 12 acre Reata Park and Events Center property.
As a comparison , the maintenance costs (such as utilities; building, restroom and
grounds maintenance; potable and non-potable water supply; repairs, etc.) budgeted for
similar properties are as follows:
Facility
Los Rios Park
Reata Park and Events Center
Sports Park
Acres
4
12
13
Estimated
Cost per Acre
$14,000
$19,000
$28,000
Estimated
Annual Cost
$56,000
$228,000
$364,000
Revenues received for events and activities at these facilities typically cover
administration and operational costs (administration and staffing); however,
maintenance costs (such as utilities ; building, restroom and grounds maintenance;
potable and non-potable water supply; repairs, etc.) are additional costs that are
generally covered by the City's General Fund.
ENVIRONMENTAL IMPACT :
Not applicable .
PRIOR CITY COUNCIL REV IEW :
• November 5, 2013 -City Council approved current 2014 Management
Agreement.
• June 11, 2014 -at the City Council and City Manager Retreat special meeting
(Attachment 1, page 4 & 5), staff received direction to renew the existing Riding
Park Management Agreement with the existing operator, Blenheim Facilities
Management, LLC ; and the City Attorney was requested to explore the option of
extending the Agreement for additional years while remaining compliant with the
applicable tax regulations
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS :
Not applicable.
NOTIFICATION:
Not applicable.
City Council Agenda Report
November 18, 2014
Page 5 of 5
ATIACHMENTS :
Attachment 1 -Proposed Calendar Years 2015 and 2016 Management Agreement
Attachment 2 -Red line Comparison of the Current 2014 Management Agreement to
Calendar Years 2015 and 2015 Proposed Management Agreement
RIDINGPARKMANAGEMENT AGREEMENT
THIS RIDING PARK MANAGEMENT AGREEMENT ("Agreement") is made and
entered into this 18th day ofNovember, 2014 ("Effective Date") by and between the CITY OF SAN
JUAN CAPISTRANO, a municipal corporation ("City"), and BLENHEIM FACILITY
MANAGEMENT, LLC, a Delaware limited liability company ("Company").
RECITALS:
A. City is the owner of that certain real property located in the City commonly known as
"Rancho Mission Viejo Riding Park at San Juan Capistrano" depicted in the attached EXHIBIT A
(the "Property"). A portion of the Property within the bounds of the solid black line shown on
EXHIBIT A consists of approximately seventy (70) acres (the "Riding Park Parcel"). City desires
to utilize the services of Company to manage and maintain the Riding Park Parcel in accordance with
the terms and conditions set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, City and Company hereby agree as follows:
1.0 TERM OF AGREEMENT
1.1 Effective Date; Term. City is contracting with Company, pursuant to this
Agreement, for provision by Company of Riding Park Parcel management services, as set forth in
this Agreement, commencing on a date subsequent to the Effective Date. In recognition of the
foregoing, this Agreement shall be effective on the Effective Date set forth in the preamble, but the
term of Company's management ofthe Riding Park Parcel pursuant to this Agreement shall be the
"Management Term" set forth in Section 1.2. This Agreement shall terminate and be of no further
force or effect as of 11 :59 p.m. on December 31, 2016, unless sooner terminated pursuant to the terms
of this Agreement ("Termination Date").
1.2 Management Term. The Management Term shall commence on January 1,
2015 ("Management Term Commencement Date") and shall end on the Termination Date.
2.0 MANAGEMENT AND OPERATIONS
2.1 Riding Park Parcel Management by Company. City hereby contracts with
Company, during the Management Term, to manage and operate the Riding Park Parcel in
accordance with the terms and provisions of this Agreement ("Riding Park Parcel Management
Services").
2.1.1 Acceptance of Riding Park Parcel. Company accepts the Riding Park
Parcel in its current "AS-IS" "WHERE IS" "WITH ALL FAULTS" condition as of the Effective
Date and that, except as otherwise provided in this Agreement, City shall have no obligation
whatsoever to provide or pay for any alterations, improvements, or work therein.
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2.1.2 Access to Riding Park Parcel. City hereby grants to Company a
non-exclusive revocable license, subject to and in accordance with the terms of this Agreement, to
enter upon and use the roads and other rights of way across the Property as designated by City on
EXHIBIT A to access the Riding Park Parcel, or alternative roads, other rights of way, and portion of
the Property as City may reasonably require Company to use to access the Riding Park Property from
time to time ("Access Roads"). Other than the Access Roads, Company shall not enter upon or use
any other portions of the Property for any purpose without the express written consent of City.
2.1.3 Management of Riding Park Parcel in Accordance with Permitted Uses.
The Riding Park Parcel shall be used solely for the purpose of hosting sporting and equestrian events
and community recreational and sports-related activities, and ancillary activities appropriate to
particular events including. but not limited to, food and beverage service (including serving of
alcoholic beverages in compliance with applicable permit and regulatory requirements of the State of
California Department of Alcoholic Beverage Control) and use of amplified sound equipment
(provided the same does not exceed the City's noise ordinance), so long as such uses, individually
and/or cumulatively, do not increase traffic beyond existing levels and such uses comply with the Use
Restrictions attached as Exhibits C and D of the Grant Deed transferring ownership of the Property to
City, a copy of which Exhibits C and D are attached hereto as EXHIBIT B (collectively, the
"Permitted Use"), and for no other purpose. All other uses of the Riding Park Parcel that Company
may propose shall be subject to the prior review and written consent of the City Manager, which
consent may be given or withheld in the City Manager's sole and absolute discretion. Company
shall request such permission from the City Manager, in writing, not less than thirty (30) days prior to
the proposed commencement of any such event or use. Company shall use its commercially
reasonable efforts to schedule, promote, and use the Riding Park Parcel with Permitted Uses so as to
maximize use of the Riding Park Parcel but within the mandated traffic levels and consistent with
proper management and maintenance of the Riding Park Parcel for equestrian and sports-related uses.
2.1.3 .1 Parking on Riding Park Parcel. Company and the users of
the Riding Park Parcel, may park vehicles, including horse trailers, on the Riding Park Parcel in
conjunction with the Permitted Use; provided, however, that no persons using the Riding Park Parcel
shall be permitted to park, and Company shall prohibit all persons using the Riding Park Parcel from
parking, on any other portion of the Property
2.1.3.2 Sierra Soi!. City and Company acknowledge that prior to
the Effective Date of this Agreement, certain work was performed by Sierra Soil Products, Inc. on a
portion of the Riding Park Parcel. Company shall be responsible and liable for any damage, cleanup,
or liability arising from or attributable to such work.
2.1.4 Identification of Riding Park Parcel. Company shall identify and
advertise the Riding Park Parcel exclusively as the "Rancho Mission Viejo Riding Park at San Juan
Capistrano" at all times when performing or otherwise conducting a Permitted Use upon the Riding
Park Parcel. Company shall adhere to the City's approved sign program for the Riding Park Parcel.
2.1.5 Riding Park Parcel Events. Company shall submit to City Manager, not
less frequently than once per quarter, covering the four quarters of the Management Term, by the
dates set forth below, a written request for the City Manager's approval of the specific proposed
events and uses for each upcoming calendar quarter during the Management Term of this Agreement.
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City Manager's consent shall not be unreasonably withheld provided the proposed events and uses
are a Permitted Use and City Manager or authorized designee shall respond in writing to the request
within fifteen (15) calendar days of receipt of Company's request. Company shall submit such
written requests in accordance with the following schedule:
For 1st Calendar Quarter (January 1 through March 31 ):
For 2nd Calendar Quarter (April 1 through June 30):
For 3rd Calendar Quarter (July 1 through September 30):
For 4th Calendar Quarter (October 1 through December 31):
Not later than preceeding December 15
Not later than preceeding March 1
Not later than preceeding June 1
Not later than preceeding September 1
Company shall continue to provide public use dates and shall develop a calendar to include during the
Management Term: (A) additional sports events, including tournaments, with priority for San Juan
Capistrano-based teams, and (B) community events that shall include a minimum of six (6) days of
community events such as movie nights, a pumpkin patch, winter wonderland, and concerts in the
park [the minimum of six ( 6) days of community events shall not include the additional sports events,
including tournaments, with priority for San Juan Capistrano-based teams described in clause (A)].
Notwithstanding the foregoing, Company acknowledges that City has the right to reserve and use the
Riding Park Parcel for the uses specified in Sections 2.1.5.1 and 2.1.5.2 and Company shall
coordinate with City with respect to same.
. 2.1.5.1 Rancho Mission Viejo Rodeo. Notwithstanding anything in this
Agreement to the contrary, City retains the right to allow use of the Riding Park Parcel for the final
two (2) weeks of August for the purpose of allowing Rancho Mission Viejo, LLC to host the Rancho
Mission Viejo Rodeo or similar event, together with any and all related events and functions
associated therewith as determined by City in its sole and absolute discretion.
2.1.5.2 City Use of Riding Park Parcel for Capital Improvement
Installation. City shall have the right to and it shall not be a breach of this Agreement for City to, at
City's sole discretion and at any time during the Management Term to : (a) install on portions of the
Riding Park Parcel utilities, storm drain facilities , public restrooms, water, sewer, and other
infrastructure; (b) grant easements for the improvement of Ortega Highway and La Pata Road, which
improvements may require use and/or encroachment onto portions of the Riding Park Parcel; (c)
construct on portions of the Riding Park Parcel the Regional Riding and Hiking Trails as shown on
the County of Orange approved Master Plan of Regional Riding and Hiking Trails or other public
trails pursuant to City's plan and specifications, and (d) allow the Reserve at Rancho Mission Viejo, a
California non-profit public benefit corporation, to enter onto the Riding Park Parcel and perform any
activities thereon that may be required by (or are consistent with) the terms and provisions of the
Southern Habitat Conservation plan approved by the U.S. Fish and Wildlife Service on January 10,
2007 (the "SSHCP"). No adjustment in Company's compensation hereunder shall be made due to
any losses, increased expenses, or impacts to Company resulting from or arising from the exercise of
any of the activities set forth in this Section 2.1.5.2.
2.1.5.3 Public Access to Ridi.ru! Park Parcel. Within sixty (60) days of
the Effective Date, City Manager and Company shall identify areas within the Riding Park Parcel and
the times and days where public access and use, over and above those previousy provided, can occur
consistent with the safety of the public and the operations of the Company. A proposed "Public Use
Implementation Plan" shall be shall be prepared setting forth the proposed times and areas of public
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use and access and such other rules or regulations that are deemed appropriate, and such
Implementation Plan shall be presented to the City Council for review and approval no later than
ninety (90) days after the Effective Date.
2.1.6 Impact of County La Pata Project. City and Company acknowledge that
the County of Orange has undertaken expansion of La Pata A venue adjacent to the Riding Park
Parcel. The extent of the impact and its effect on the ability of Company to effect use of the Riding
Park Parcel for the Pennitted Use is not known. Notwithstanding, no adjustment in Company's
compensation hereunder shall be made due to any losses, increased expenses, or impacts to Company
resulting from County's work.
2.1. 7 Riparian Resources Areas.
2.1.7.1 Identification ofRiparian Resource Areas. Portions ofthe
Riding Park Parcel contain riparian resources that are subject to the provisions of the SSHCP and its
Implementation Agreement. These resources areas ("Riparian Resources Areas") are specifically
identified and depicted in EXHIBIT A attached hereto as "Do Not Disturb Areas."
2.1.7.2 Prohibitions and Obligations. Company shall not (and
shall not authorize, allow, or pennit others to) enter onto, improve, or otherwise use the Riparian
Resources Areas or any portion thereof for the Pennitted Use or any other activity. Moreover,
Company, at its sole cost and expense, shall undertake, perfonn, and complete all actions necessary to
restrict and prevent any person, domestic animal, vehicle, equipment, or other apparatus from
entering onto the Riparian Resource Areas (which actions may include, but are not limited to, the
construction and maintenance of fences or other barriers and placement of signage outside of the
perimeter of the Riparian Resource Areas). The Arizona Crossing between the Property and Reata
Park Parcel may be utilized when a Fish and Game Code § 1602 Agreement has been entered into
allowing such use. Company shall abide by all tenns and conditions of such 1602 Agreement.
2.1. 7.3 Damage to Riparian Resource Areas. In the instance that
the Riparian Resource Areas sustain any damage during the Management Tenn, Company shall
immediately notify City concerning the damage. Within five (5) days following Company's
delivery of said notice of damage to City, Company and City shall meet and confer for purposes of
discussing the damage and addressing restoration of the damaged areas. If the damage is caused by,
or otherwise the result of, the actions-whether of commission or omission-of Company or any
other person entering onto the Riding Park Parcel pursuant to , or under color of, this Agreement,
Company, at its sole cost and expense, shall be responsible for (i) preparing a restoration plan that
addresses and provides for timely and complete remediation of the damage, (ii) submitting the
restoration plan to City for review and approval, (iii) modifying the restoration plan in accordance
with any comments or directions received from City, and (iv) perfonning all restoration work in
accordance with the restoration plan approved by City. All restoration work shall be subject to
oversight by City and shall be perfonned in accordance with time frames and methods approved by
City.
2.1.7.4 Material Breach. In addition to any other rights of City to
tenninate this Agreement , any failure of Company to strictly adhere to the obligations set forth in this
Section 2.1.7.4 shall be deemed a material breach of this Agreement and City may, in its sole and
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absolute discretion, immediately terminate this Agreement upon delivery of notice to Company.
Notwithstanding any such termination of this Agreement, Company shall remain obligated (i) for all
costs and expenses associated with remediating any damage to the Riparian Resource Areas caused
by Company (or any other person entering onto the Riding Park Parcel pursuant to, or under color, of
this Agreement), and (ii) for satisfying all other obligations of Company that survive termination of
this Agreement.
2.1.8 Approvals; Compliance. Company, in performing the Riding Park
Management Services, shall be required to, at its sole cost and expense, do the following:
(a) Maintain all necessary licenses and/or permits from all appropriate
public or governmental agencies with jurisdiction and provide copies of same to City upon any
request therefor;
(b) Comply with each and every federal, state, or local law (including the
City's Municipal Code), regulation, standard, decision of court, ordinance, rule, code, order, decree,
directive, guidelines, permit or permit condition, together any declaration of covenants, conditions,
and restrictions that have been recorded in any official or public records with respect to the Riding
Park Parcel or any portion thereof, each as currently existing and as amended, enacted, issued, or
adopted in the future which become applicable to the Riding Park Parcel;
(c) Not materially interfere with the use and enjoyment of the Riding Park
Parcel by City or any person claiming through or under City, except as may be mandated by this
Agreement;
(d) Not permit any other person or party to enter upon the Property or
Riding Park Parcel under the authority of this Agreement other than as guests or invitees, and
Company shall not authorize any person or entity to operate any commercial use and shall not grant
any sub-agreement, license, or other form of agreement relating to the Property without the prior,
express written consent of the City Manager which consent may be given or withheld in the City
Manager's sole and absolute discretion; provided, however, that notwithstanding the foregoing,
Company's vendors, concessionaires, and similar commercial uses shall be permitted on the Riding
Park Parcel in conjunction with the Permitted Uses.
(e) Cooperate with and provide City staff with information and
recommendations related to where and what types of infrastructure improvements could be
implemented to maximize the use of the Riding Park Parcel, including future restroom facilities,
water access points, irrigation system enhancements, parking strategies, and where to best site any
covered areas; and
2.1.9 Signage. Company shall have the right to install signage upon the Riding
Park Parcel identifying the location of the facility and the activities/events conducted by Company
thereon as Permitted Uses; provided that (i) Company shall provide to City a written description
and/or depiction of the intended signage prior to installation, (ii) all signage shall identify the Riding
Park Parcel as the "Rancho Mission Viejo Riding Park at San Juan Capistrano," (iii) City shall have
the right to approve/disapprove any signage proposed by Company, (iv) all costs and expenses
associated with designing, permitting, constructing, installing, and maintaining the signage shall
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beborne exclusively by Company, (v) Company shall maintain all approved signage in good
condition and repair, (vi) at the conclusion of the Management Term, Company, unless otherwise
directed by City, shall remove the signage from the Riding Park Parcel, and (vii) Company shall
submit sign plans including site plan location and elevations for City's review and approval of any
amendment to the sign program for the Riding Park Parcel as exists on the Effective Date of this
Agreement.
2.1.10 Rules and Regulations. Company shall comply with City's rules and
regulations for the Property ("Rules and Regulations"), a copy of the current edition of which is
attached hereto as EXHIBIT D ; provided, City shall have the right to revise and modify the Rules
and Regulations from time to time in City's sole and absolute discretion and Company shall comply
therewith upon receipt of a copy thereof.
2.1.11 Company Responsible for Riding Park Parcel Operating Expenses.
Company shall be responsible for payment of all costs and expenses of whatever type or nature,
incurred with respect to or otherwise arising from Company's performance of the Riding Park Parcel
Management Services including, but not limited to: (i) all charges for heat, water, gas, electricity,
and any other utilities (and City shall not be responsible or liable for any interruption in or curtailment
of any utility service); (ii) all costs associated with preparing the Riding Park Parcel for, and holding,
the activities/events thereon that are Permitted Uses including, but not limited to, all licenses and
permits; (iii) all taxes, fees, assessments, levies, fines, judgments, claims, charges, costs of defense of
lawsuits, attorney fees, and expert witness fees; (iv) all employee, personnel, and labor costs
including all salaries, wages, benefits, pension contributions, health care costs, and all other such
costs; (v) costs of maintaining the Riding Park Parcel in a manner, and at a level, necessary to insure
the ongoing use of the Riding Park Parcel during and after the Management Term for the Permitted
Uses; (vi) all marketing, advertising, publicity, and related costs to promote the activities and events
that are Permitted Uses on the Riding Park Parcel; (vii) all office management costs to operate the
Riding Park Parcel including but not limited to computers, telephone, software, and accounting and
payroll programs, (viii) the cost to repair improvements on the Riding Park Parcel; (ix) insurance
premiums; and (x) contracts necessary to operate and maintain the Riding Park Parcel (collectively,
the "Riding Park Parcel Operating Expenses"). If City should (but is under no obligation to) pay
for any of the Riding Park Parcel Operating Expenses due to Company's failure to make time
payments thereof, Company shall reimburse City within thirty (30) days of receipt of the invoice for
any such payments made by City on behalf of Company. If such payment is not received within
such thirty (30) day period, interest shall accrue on the outstanding balance due at the maximum legal
rate then in effect.
2.1.12 Riding Park Parcel Management Fee. City and Company acknowledge
and agree that in light of the purpose of this Agreement to provide equestrian, sports, and community
services to third parties, the source of gross revenue derived from operations on the Riding Park
Parcel is fees paid by third party users. Thus, during the Management Term of this Agreement, City
shall pay Company a management fee ("Riding Park Parcel Management Fee") based on
percentage of gross revenues received by Company from the Riding Park Parcel Management
Services including but not limited to: facility rentals and other rental income, vendor fees, stalls, RV
fees, parking fees, food and beverage concessions, horse and equestrian shows, horse events,
tournaments, special events, group events, sports events including but not limited to soccer and
lacrosse, taxable sales, nontaxable sales , proceeds of insurance covering loss of gross revenues
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including but not limited to business interruption insurance or similar types of insurance, and any
amount received by Company in connection with any claim, demand, or lawsuit to replace or
augment Gross Revenues, with all gross revenues identified and recorded in accordance with
generally accepted accounting principles ("Gross Revenues"). Gross Revenues shall not include
sales taxes, excise taxes, gross receipts taxes, and other similar taxes imposed upon the sale of food,
beverages, merchandise, or services and paid to the appropriate taxing authority, whether added to or
included in the selling price. The percentage of Gross Revenues to be paid by City to Company
("City Management Fee Payment Percentage") shall be as follows:
AMOUNT OF TOTAL GROSS CITY RIDING PARK PARCEL
REVENUES MANAGEMENT FEE PAYMENT
PERCENTAGE
$0.00 to and including $600,000. 66.66%
For each dollar of Gross Revenues over 90%
$600,000 to and including $850,000.
For each dollar of Gross Revenues over 97.5%
$850,000 to and including $1,200,000.
For each dollar of Gross Revenues over 95%
$1,200,000.
2.1.12.1 Quarterly Payment of Riding Park Parcel Management
Fee. Within ten (1 0) days after the end of each quarter during the Management Term, Company
shall report the Gross Revenues for the quarter just ended to the City's Chief Financial Officer. The
City's Chief Financial Officer shall review and reasonably verify the amount reported and shall notify
Company of acceptance or rejection of the information provided. The City's Chief Financial Officer
may request additional information. If the information is rejected, Company, City Manager, and
City's Chief Financial Officer shall meet and confer in good faith to resolve any objections or
concerns. Once the information is accepted by the City's Chief Financial Officer, City shall make a
payment toward the Riding Park Parcel Management Fee by applying the above City Management
Fee Payment Percentage to the total Gross Revenues for the year to date through the end of the
reporting quarter. For illustration purposes only, if the Gross Revenues achieved during Quarter #1
were $500,000, the payment made to Company by the City after the end of Quarter #1 would be
$333,300, and if the Gross Revenues achieved during Quarter #2 were $400,000 (i.e., total Gross
Revenues through Quarter #2 of $900,000), the payment made to Company by the City after the end
of Quarter #2 would be $340,410. At the end of Quarter #4, which corresponds to the end of the
Management Term, and notwithstanding any other term or provision in this Agreement to the
contrary, this Agreement shall remain in effect for the purpose of the final quarterly payment
following the end of Quarter #4 and for purposes of any necessary or required reconciliation and
accounting to "true up" the final payment so that the total Riding Park Management Fee for the
Management Term has been accurately determined, reconciled, and paid.
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2.1.12.2 Method of Payment of Riding Park Management Fee. In
lieu of Company transferring all Gross Revenues to the City and then receiving the quarterly Riding
Park Parcel Management Fee payments, City shall effect payment of the quarterly Riding Park Parcel
Management Fee amount by an offset against the Gross Revenues and Company shall pay City the
remainder by check in good and immediate funds no later than seven (7) days after receipt of
notification from the City Manager or City's Chief Financial Officer or authorized designee that the
report of Gross Revenues for the applicable calendar quarter has been accepted. Using the same
example for illustration purposes only as set forth in Section 2.1.12.1, if the Gross Revenues for
Quarter #1 are $500,000, the City's Riding Park Parcel Management Fee payment to Company
would be $333,300 and thus, pursuant to this Section 2.1.12.2, Company shall pay the difference to
City which, in this example would be the amount of$166,700.
2.1.13 Ownership of Improvements and Personal Prooertv. All
non-permanent structures and improvements on the Riding Park Parcel installed by Company
during the term of this Agreement and all fixtures, furnishings, and equipment and operating
inventory purchased by Company during the term of this Agreement shall be considered property
owned by Company and shall be removed by Company at the Termination Date unless other
arrangements are made with City.
3.0 TERMINATION
3.1 Company's Right to Terminate Agreement. In addition to any other rights of
termination afforded to Company in this Agreement, Company shall have the right to terminate this
Agreement prior to the end of the Management Term upon any of the following events:
(a) A material breach by City and only upon not less than thirty (30) days' prior
written notice to the City which notice shall specifY the material default. Upon receipt of such
notice, City may, but shall not be obligated to, effect to remedy of such default within such thirty (30)
day period; provided, however, that such cure period shall be extended for such material defaults that
cannot reasonably be cured within such thirty (30) day period provided City has commenced such
cure within the thirty (30) day period and diligently prosecutes such cure to completion.
(b) Loss of currently available water supply to the Riding Park Parcel from
adjoining Blenheim Farms which water supply is not readily replaceable at comparable cost, and only
upon not less than thirty (30) days' prior written notice to the City. Upon receipt of such notice, City
may, but shall not be obligated to, remedy the loss of water supply within such thirty (30) day period,
which may include providing water to the Riding Park Parcel from another source, in which case the
Parties agree to meet and confer in good faith to adjust the Riding Park Parcel Management Fee to
address any increased costs associated with an alternative water supply.
(c) Loss of Company facilities located on the Riding Park Parcel due to
environmental or other property constraints including but not limited to natural disasters, and only
upon not less than thirty (30) days' prior written notice to the City of Company decision to terminate
specifYing the environmental or other property constraint. Upon receipt of such notice, City may,
but shall not be obligated to, effect to remedy of the environmental or other property constraint within
such thirty (30) day period, in which case the Parties agree to meet and confer in good faith to adjust
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the Riding Park Parcel Management Fee to address any increased costs associated with City's
remedy.
3.2 Citv's Right to Terminate Agreement. In addition to any other rights of
termination afforded to City in this Agreement, City shall have the right to terminate this Agreement
prior to the end of the Management Term upon any of the following events:
(a) A material breach by Company and only upon not less than thirty (30) days'
prior written notice to the Company which notice shall specifY the material default. Upon receipt of
such notice, Company may, but shall not be obligated to, effect to remedy of such default within such
thirty (30) day period; provided, however, that such cure period shall be extended for such material
defaults that cannot reasonably be cured within such thirty (30) day period provided City has
commenced such cure within the thirty (30) day period and diligently prosecutes such cure to
completion. Failure to timely take corrective action as provided in Section 6.1 shall constitute a
material breach.
(b) The insolvency of Company or if Company is adjudicated a bankrupt or
Company institutes any proceedings under any law relating to bankruptcy wherein Company seeks to
be adjudicated a bankrupt or to be discharged of its debts or to effect a plan of reorganization, or the
filing of an involuntary petition by any of Company's creditors seeking the rehabilitation, liquidation,
or reorganization of Company under any law related to bankruptcy, insolvency, or other relief of
debtors, and, in the case of involuntary actions, the failure to remove or discharge the same within
sixty (60) days of such filing.
(c) City and Company acknowledge and agree that the Property was acquired
with the proceeds of tax-exempt bonds and this Agreement is required to be compliant with
applicable provision of the Internal Revenue Code and implementation IRS Regulations, including
but not limited to Revenue Procedure 97-13. If, and upon, City's receipt of a determination from a
qualified bond counsel, the Trustee for such bonds, the Internal Revenue Service, or other qualified
person or entity, that this Agreement is not a compliant management agreement, City shall have the
unqualified and unilateral right to terminate this Agreement prior to the end of the Management Term
upon thirty (30) days prior written notice to Company. City shall incur no liability due to such
termination except that upon such termination, City shall be obligated to pay Company the Riding
Park Parcel Management Fee, computed as provided in this Agreement, earned by Company through
the date Company ceases performance under this Agreement pursuant to such notice of termination.
City and Company agree to meet and confer in good faith to determine such final payment amounts.
(d) City sells or transfers the Riding Park Parcel and a condition of such sale or
transfer is the termination of this Agreement with respect to the applicable parcel prior to the end of
the Management Term; provided that City provides Company at least ninety (90) days prior written
notice of the termination of this Agreement (or portion thereof affecting the applicable parcel) due to
the sale or transfer, and upon such termination City shall pay Company the pro-rata amount of Riding
Park Parcel Management Fee earned by Company to the date of termination.
(e) If all of the Riding Park Parcel (or a sufficient portion thereof so as to make
infeasible, in the City's reasonable judgment, the continued operation of the Riding Park Parcel for
the purposes for which Company is performing the Riding Park Parcel Management Services ), shall
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be taken through the exercise (or by agreement in lieu of the exercise) of the power of eminent
domain, then upon the earlier of (i) the date that City shall be required to surrender possession of the
Riding Park Parcel or of that substantial portion of the Riding Park Parcel or (ii) the date when the
Riding Park Parcel is no longer open and available for operations, this Agreement with respect to the
Riding Park Parcel shall terminate and neither Party shall have any further obligation to the other
Party with respect to the applicable parcel, except with respect to liabilities accruing, or based upon
events occurring, prior to the effective date of such termination, including but not limited to payment
of the Riding Park Parcel Management Fee earned by Company to the date of such termination, as
applicable.
(f) If the Riding Park Parcel should be destroyed or substantially damaged by
fire, flood, acts, or God, or other casualty, City, by written notice to Company within sixty (60) days
following the occurrence of such event, shall have the right to terminate this Agreement with respect
to the Riding Park Parcel on the basis that City does not choose to rebuild or restore the applicable
parcel, and in such event neither Party shall have any further obligation to the other Party under this
Agreement with respect to the applicable Parcel, except with respect to liabilities accruing, or based
upon events occurring, prior to the effective date of such termination, including but not limited to
payment of the Riding Park Parcel Management Fee earned by Company to the date of such
termination.
(g) Ifthere is a disruption in Company's operation of the Riding Park Parcel due
to war, sabotage, riot or acts of civil disobedience, acts or omissions of governmental agencies
(except acts of governmental agencies including, but not limited to, the City taken in accordance with
this Agreement), accidents, fires, explosions, floods, earthquakes, other acts of God, strikes, labor
disputes, shortages of materials, or any other event not within the control of Company, City, by
written notice to Company within thirty (30) days following the occurrence of such event, shall have
the right to terminate this Agreement with respect to the Riding Park Parcel, and in such event neither
Party shall have any further obligation to the other Party under this Agreement with respect to the
applicable Parcel, except with respect to liabilities accruing, or based upon events occurring, prior to
the effective date of such termination, including but not limited to payment of the Riding Park Parcel
Management Fee earned by Company to the date of such termination.
4.0 DAMAGE; LIENS
4.1 Company to Repair Property. Company shall repair and restore any damage,
destruction, or casualty to any structures, improvements, fixtures and/or installations, soil , plants,
crops, fences, timber, habitat, livestock and/or any other natural resources on or about the Property
arising from Company's performance ofthe Riding Park Parcel Management Services including by
any other user of the Riding Park Parcel with Company's consent. All repair and restoration work
shall be subject to (i) the preparation by Company, and approval by City, or a restoration plan for the
Riding Park Parcel and (ii) oversight by City of any restoration work completed on the Riding Park
Parcel. The obligations of this Section shall survive termination of this Agreement.
4.2 No Liens. Company shall not permit to exist or otherwise to be enforced against the
Riding Park Parcel, or any portion thereof, any mechanics', materialmen's, contractors', or other
liens ("Liens") arising out of the acts or omissions of Company hereunder. Company hereby
indemnifies and agrees to City and any affected portion of the Riding Park Parcel free and harmless
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from all liability for any and all such Liens, together with all costs and expenses, including, but not
limited to, attorneys' fees, expert witness fees, and court costs reasonably incurred by City in
connection therewith. If any such Lien shall at any time be recorded against the Riding Park Parcel
(or any other portion of the Property) as a result of the foregoing, and Company shall fail, within
twenty (20) days after such recording, to either (i) pay and discharge the underlying claim and cause a
lien release to be recorded, or (ii) furnish to City a surety bond or other security reasonably
satisfactory to City protecting City against liability for such Lien and holding the affected property
free from the effect of such Lien, the City may, but not be obligated to, take such action or pay such
amounts as may be necessary to remove such Lien, and Licensee shall inunediately pay City the
amount so expended by City, together with interest thereon at the rate often percent (10%) per annum
accruing from the date of such payment by City until paid in full by Company, or in the alternative
City may offset the amount due from one or more Riding Park Parcel Management Fees. The
obligations of this Section shall survive termination of this Agreement.
4.3 Company Responsible for Acts of Employees, Agents, and Invitees. Company
shall be responsible for and liable for all acts and omissions of all of Company's agents, employees,
representatives, and any other person or party entering on the Property under the authority or color of
this Agreement. In addition to any indemnification by Company in favor of City in this Agreement,
Company shall indemnify, defend, and hold harmless City and all of its elected and appointed
officials, officers, directors, agents, representatives, managers, and employees from and against all
claims arising out of or related to the foregoing described acts and omissions for which Company is
responsible and liable, and including any costs and expenses, including, but not limited to, attorneys'
fees, expert witness fees, and court costs reasonably incurred by City in connection therewith. The
obligations of this Section shall survive termination of this Agreement.
4.4 Company Responsible for Hazardous Substances and Remediation. Company
shall not use, store, or transport any hazardous substances on or onto the Property. Company shall
repair, remediate and/or restore any condition attributable to or arising from same. All such work
shall be performed in accordance with permits obtained from applicable governmental agencies.
Upon the expiration of the Management Term or earlier termination of this Agreement, Company
shall direct, and pay for, the preparation of a Phase I environmental assessment report for the
Property, and for a Phase II environmental assessment if such be required. Company shall be
responsible for all cleanup and remediation work which work shall be subject to the review and
verification of City's environmental consulting firm. The obligations of this Section shall survive
termination ofthis Agreement.
5.0 INDEMNIFICATION; INSURANCE; CLAIMS
5.1 Indemnification. Company shall indemnify, defend, and hold harmless City and all
of its elected and appointed officials, officers, directors, agents, representatives, managers, and
employees, from and against all liabilities, claims, damages, losses, and expenses of any nature
whatsoever (including, but not limited to any costs or expenses for attorneys' fees, expert witness
fees, court costs, and all incidental, consequential, economic, or punitive damages) arising out of
Company's use of the Property or otherwise arising out of the acts or omissions of Company
hereunder. As a material part of the consideration for this Agreement, Company waives any and all
claims and demands against Company for any and all such injury or damages and all other claims of
any nature whatsoever. The obligations ofthis section shall survive termination of this Agreement.
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5.2 Insurance. Company shall maintain from and after the Effective Date and through
the Termination Date comprehensive general commercial liability insurance including automobile
coverage and blanket contractual liability coverage, with respect to the Property and ingress to and
egress from the Riding Park Parcel, the performance of the Riding Park Parcel Management Services,
including personal injury and property damages for not less than Two Million Dollars ($2,000,000)
combined single limit bodily injury, death, and property liability per occurrence, or the current limit
of liability carried, which is greater, and workers' compensation insurance to protect Company and
City from any claim made or action brought by any person or entity arising out of or related to
Company's use of the Property or arising out of or connected in any way with the acts of Company
undertaken pursuant to this Agreement. Company shall provide that the policy or policies or
insurance shall be primary and shall name City as an additional insured, with the provision that any
other insurance carried by City shall be noncontributing, and shall waive all rights of subrogation.
Company shall furnish City with a Certificate of Insurance and Additional Insured Endorsement as
evidence of such policy or policies. Both the Certificate of Insurance and Additional Insured
Endorsement shall name City as additional insured and contain language that specifically states that
each policy or policies of Comprehensive or General Commercial Liability Insurance shall be
primary and noncontributing with any insurance carried by City. All certificates of insurance and
endorsements shall be signed by a person authorized by the insurance company to bind coverage on
its behalf. The insurance companies providing the policies shall be qualified to do business and in
good standing in California. Neither the procuring of insurance by Company pursuant to this
Section, nor the delivery by Company to City of certificates of insurance and endorsements
evidencing such insurance coverages, shall be construed as a limitation of Company's indemnity
obligations as set forth in this Agreement. Company shall insure that all contractors and/or
subcontractors performing any work on the Property shall comply with the above-referenced
insurance requirements prior to entry or work upon the Riding Park Parcel.
5.3 Claims. Company shall notify City of any claims or lawsuits relating to the Riding
Park Parcel within three (3) days after Company receives notice of such claims or lawsuits. Any
legal fees paid by Company and charged as a Riding Park Parcel Operating Expense shall be for legal
services directly related to the Riding Park Parcel and shall not include any Company corporate
overhead or administrative fee or charge. The City Manager shall have the right to pre-approve any
legal counsel retained by Company to defend the City, and to approve all legal bills incurred in such
defense.
6.0 CITY REVIEW AND EVALUATION
6.1 Riding Park Parcel Operations and Maintenance Evaluation. City shall be
permitted to periodically, in its sole discretion, to evaluate Company's performance of the Riding
Park Parcel Management Services to determine conformance to the requirements ofthis Agreement.
In the event of any deficiency in Company's performance, City shall provide Company with a written
notice of deficiency identifying the deficient items or issues. Upon receipt, Company shall
promptly, but in no event more than five (5) days, notify City in writing of the corrective actions to be
taken and shall correct such deficiency within fifteen (15) days thereafter, or for such deficiencies
which are not reasonably capable of being corrected within such fifteen (15) day period (which shall
not include delay merely due to an unwillingness to expend money), Company shall commence the
correction within such fifteen (15) day period and shall diligently prosecute the correction to
completion. The cost of all corrective actions shall be a Riding Park Parcel Operating Expense.
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6.2 Citv Access to Riding Park Parcel. City shall have the right to enter upon the
Riding Park Parcel at any time to inspect the premises and conduct the review and evaluation
described in Section 6.1; provided, however, that City shall not (except for any public safety or health
emergencies) disrupt Company's operations or any events or activities occurring at that time on the
Riding Park Parcel.
7.0 NOTICES
Any notices which either Party may desire to give or may be required to give to the other
Party under this Agreement must be in writing and may be given either by (a) personal service, or
(b) delivery by a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery, or (c) mailing in the United States
Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party
as set forth below or at any other address as that party may later designate by notice:
If to Company (if by mail):
If to Company (ifby personal delivery
or document delivery service):
lfto City:
8.0 BOOKS AND RECORDS; INSPECTION
Mr. Robert Ridland
P. 0. Box 609
San Juan Capistrano, CA 92693
Mr. Robert Ridland
Blenheim Facility Management, LLC
30753 La Pata Road
San Juan Capistrano, CA 92675
City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
8.1 Books and Records. Company shall keep full and accurate books of account and
such other records as are necessary to reflect the results of the Riding Park Parcel Management
Services. All books and records of Company for the Riding Park Parcel shall be located either at
Company's offices on the Riding Park Parcel or at another location in the City disclosed in writing
to the City Manager. All accounting records shall be maintained in accordance with generally
accepted accounting principles. All such books, records, and reports shall be maintained
separately from other facilities operated by Company. Company agrees to maintain reasonable
and necessary accounting, operating, and administrative controls relating to the financial aspects
of the Riding Park Parcel and such controls shall provide checks and balances designed to protect
the Riding Park Parcel, Company, and City. Company shall maintain all financial and accounting
books and records for a period of at least four (4) years after the Termination Date of this
Agreement, and City shall have the right to inspect and audit such books and records during such
period as provided in Section 8.2 below.
8.2 Inspection. Upon seven (7) days prior written notice to Company, which notice
shall set forth the date and time that City desires to inspect Company's books and records as
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pertains to this Agreement, City or its authorized agents, auditors, or representatives shall have the
right during normal business hours to review, inspect, audit, and copy the books, records, invoices,
deposit receipts, canceled checks, and other accounting and financial information maintained by
Company in connection with the Riding Park Parcel Management Services. All such books and
records shall be made available to City at the Riding Park Parcel unless City and Company agree
upon another location. City, at its own expense, shall have the right to retain an independent
accounting firm to audit the books and records of the Company as it pertains to this Agreement on
an annual basis.
8.3 Disclosure. City agrees to treat all books, records, financial reports, and, financial
documents, including the Gross Revenues reports provided to the City's Chief Financial Officer
pursuant to Section 2.1.12.1, as proprietary corporate financial records not subject to disclosure
under the California Public Records Act pursuant to Government Code Section 6254.15, except as
may be required to be disclosed by court order. Company and City agree that, notwithstanding
the foregoing, this Agreement and all books, records, reports, and documents provided by
Company to City under this Agreement are not subject to that certain Confidentiality Agreement
between Company and City dated November 2, 2011. City shall notify Company within three (3)
business days of notice to City that a third party has threatened to seek or is seeking a court order to
compel disclosure of such corporate financial records and Company shall have the right, at its cost,
to seek a court order barring such disclosure. Company shall indemnify , defend, and hold City
harmless from any claim, action, demand, or judgment, including but not limited to City's actual
attorney fees, arising out of or related to the refusal by the City to disclose to a third party a
corporate financial record submitted by Company to City. The defense of any action seeking
disclosure of Company's corporate financial records shall be at Company's expense and handled,
at Company's option, either by legal counsel acceptable to the City Attorney or by the City
Attorney's Office at the rate of $375 per hour.
9.0 MISCELLANEOUS
9.1 Contract Administration. City has designated the City Manager as the
individual who is responsible for administering this Agreement on behalf of City. The City
Manager may designate a member of his or her staff to serve as the City Manager's designee to
carry out the City Mana get's responsibilities in administering this Agreement. Company has
designated Melissa Brandes as the individual who is responsible for administering this
Agreement on behalf of Company. Company shall notify the City Manager in writing if another
individual has replaced the foregoing designated person as the person responsible for
administering this Agreement on behalf of Company. The Parties acknowledge that except as
otherwise expressly provided herein (a) the City Manager has the authority to approve or consent
to those matters identified in this Agreement as requiring City's approval or consent and to make
all other decisions on behalf of City regarding the administration of this Agreement (except where
City Council approval is expressly required herein), and (b) Company's foregoing designated
person or such other individual designated by Company in writing to City has the authority to
approve or consent to those matters identified in this Agreement as requiring Company's approval
or consent and to make all other decisions on behalf of Company regarding the administration of
this Agreement. City's management direction to Company shall be given by the City Manager or
City Manager's authorized designee. In addition to such other authorizations granted the City
Manager in this Agreement to act on behalf of City, the City Manager shall have the authority, in the
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event of a dispute involving the interpretation of the terms and provisions of this Agreement, to
reasonably interpret the terms and provisions of this Agreement on behalf of City.
9.2 Company Is Independent Contractor. Company is and shall at all times remain as
to the City a wholly independent contractor. Nothing contained in this Agreement shall be
construed to be or create a partnership or joint venture between City and its successors and assigns,
on the one part, and Company and its successors and assigns, on the other part. The personnel
performing the services under this Agreement on behalf of Company shall at all times be under
Company's exclusive direction and control. Neither City nor any of its officers, officials,
employees, or agents shall have control over the conduct of Company or any of Company's officers,
employees, or agents. Company shall not at any time or in any manner represent that it or any of its
officers, employees, or agents is in any manner officers, officials, employees, or agents of the City.
Company shall not incur or have the power to incur any debt, obligation, or liability whatever against
Company, or bind City in any manner. No City employee benefits shall be available to Company in
connection with the performance of this Agreement. Except for the Riding Park Parcel Management
Fee paid to Company as provided in this Agreement, City shall not pay compensation to Company
and shall not be liable for any salaries, wages, or other compensation to Company for performing
services hereunder for City. City shall not be liable for compensation or indemnification to
Company for injury or sickness arising out of performing services hereunder.
9.3 Contracts and Agreements. Except as provided below, contracts and agreements
entered into by Company from and after the Effective Date of this Agreement that in any manner
relates to Company's performance of the Riding Park Parcel Management Services (including
without limitation professional contracts, contracts for maintenance and repair services, pest control,
supplies, and landscaping services, and agreements for tournaments, and group functions), shall not,
with respect to the Riding Park Parcel Management Services, extend beyond the Termination Date of
this Agreement, or if the date for performance under such contract is, with respect to the Riding Park
Parcel Management Services, after the Termination Date of this Agreement, then Company shall
obtain the prior written approval of the City Manager for such agreements and City agrees, upon
expiration or earlier termination of this Agreement, to assume all such agreements it has so approved.
9.4 Citv Financing. In the event City desires to obtain bond financing or other
financing or to refinance existing bond or other financing ("City Financing") which this Agreement
affects, Company agrees to amend this Agreement at any time and from time to time, if, in the
opinion of the City's legal counsel, this Agreement must be amended to comply with laws,
regulations, rules, or procedures applicable to the City Financing, and any refinancing or refunding
thereto, including but not limited to those laws, regulations, rules, and procedures applicable to or
promulgated by the Internal Revenue Service. City and Company shall meet and confer in good
faith to effect such written amendment to this Agreement as necessary to insure the Agreement is in
compliance as required by the preceding sentence, which amendment(s) shall be affixed as an
attachment to this Agreement; provided, however, that in the event City and Company disagree on
the nature or scope of the required amendment(s), either party shall have the right to terminate this
Agreement upon thirty (30) days written notice to the other party and upon such termination neither
Company nor City shall have any further rights or obligations hereunder, except with respect to
liabilities accruing, or based upon events occurring, prior to the effective date of such termination,
including but not limited to payment of the Riding Park Parcel Management Fee earned by Company
to the date of such termination.
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9.5 No Assignment Without Citv Consent. Company shall not assign this
Agreement without the prior written consent of the City Manager which may be given or withheld
in the City Manager's sole and absolute discretion. Any assignment by Company, whether or not
requiring the prior consent of City Manager, shall not be effective unless and until Company and
such assignee execute an assignment and assumption in a form acceptable to the City Attorney. It
is understood and agreed that any consent granted by the City Manager to any such assignment by
Company shall not be deemed a waiver of any consent required under this Section as to any future
assignment. Any assignment by Company of this Agreement in violation of the provisions of this
Agreement shall be null and void and shall result in the termination of this Agreement. In
addition to any other remedies available to the parties, the provisions of this Section shall be
enforceable by injunctive proceeding or by suit for specific performance.
9.6 Compliance With Law; Licenses and Permits . Company shall comply with all
applicable laws of governmental bodies having jurisdiction with respect to the Riding Park Parcel and
Company's performance of this Agreement. Company shall, at its expense, procure and maintain all
licenses, permits, and approvals required to be obtained by it to perform the work under this
Agreement. Company hereby expressly acknowledges and agrees that City has not previously
affirmatively represented to Company, in writing or otherwise, in a call for bids or otherwise, that
any work covered by this Agreement is not a "public work," as defined in Section 1720 of the
Labor Code. Company shall indemnify, protect, defend and hold harmless the City and its elected
and appointed officials, officers, employees, agents, and representatives, with counsel reasonably
acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense and/or
"increased costs" as defined in Labor Code Section 1 781, as amended from time to time, including
reasonable attorney fees , court and litigation costs, and fees of expert witnesses, which results or
arises in any way from (1) the noncompliance by Company of any applicable local, state and/or
federal law, including, without limitation, any applicable federal and/or state labor laws
(including, without limitation, if applicable, the requirement to pay state prevailing wages and hire
apprentices); (2) the implementation of Labor Code Section 1781, as the same may be amended
from time to time, or any other similar law; and/or (3) failure by Company to provide any required
disclosure or identification as required by Labor Code Section 1781, as may be amended from time
to time, or any other similar law. Company shall bear all risks of payment or non-payment of
prevailing wages under California law and/or the implementation of Labor Code Section 1781, as
the same may be amended from time to time, and/or any other similar law. "Increased costs," as
used in this Section, shall have the meaning ascribed to it in Labor Code Section 1781, as the same
may be amended from time to time. The foregoing indemnity shall survive termination of this
Agreement.
9.7 No Undue Influence. Company declares, represents, and warrants that no undue
influence or pressure was used against or in concert with any officer or employee of the City in
connection with the award, terms, or implementation of this Agreement, including any method of
coercion, confidential financial arrangement, or financial inducement. No officer or employee of
the City shall receive compensation, directly or indirectly, from Company, or from any officer,
employee, or agent of Company, in connection with the award of this Agreement or any work to be
conducted as a result of this Agreement.
9.8 Covenant Against Discrimination. Company covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that in the performance of
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this Agreement there shall be no discrimination against or segregation of, any person or group of
persons on account of any impermissible classification including, but not limited to, race, color,
creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
9.9 Nonliability of City Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of the City shall be personally liable to the Company, or any
successor in interest, in the event of any default or breach by the City or for any amount which may
become due to the Company or to any successor-in-interest, or for breach of any obligation of the
terms of this Agreement.
9.10 Governing Law; Attorney Fees; Litigation Matters. The internal laws of the
State of California, without regard to principles of conflicts of laws, shall govern the interpretation
of this Agreement. In addition to any other rights or remedies, either party may take legal action, in
law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any
other remedy consistent with the purposes of this Agreement. Notwithstanding anything in this
Agreement to the contrary, Company's monetary damages shall be limited to the Riding Park Parcel
Management Fee and in no event shall Company be entitled to economic or consequential damages
or to punitive damages. In the event of any litigation arising from or related to this Agreement, the
prevailing party shall be entitled to recover all reasonable costs incurred , including court costs,
reasonable attorney fees, expert witness fees, and other related expenses. The Superior Court of
the County of Orange shall have exclusive jurisdiction over any litigation between the parties
hereto concerning this Agreement. Service of process on City shall be made in the manner required
by law for service on a public entity. Service of process on Company shall be made in any manner
permitted by law and shall be effective whether served inside or outside of California.
9.11 Right and Remedies Cumulative; Waiver. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties
are cumulative and the exercise by either Party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the same
default or any other default by the other Party. No delay or omission in the exercise of any right or
remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a
waiver. A Party's consent to or approval of any act by the other Party requiring the Party's consent
or approval shall not be deemed to waive or render unnecessary the other Party's consent to or
approval of any subsequent act. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other provision of this
Agreement.
9.12 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a
valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall
not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement
which are hereby declared as severable and shall be interpreted to carry out the intent of the parties
hereunder unless the invalid provision is so material that its invalidity deprives either party of the
basic benefit of their bargain or renders this Agreement meaningless.
-17-
9.13 Interpretation. The terms of this Agreement shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.14 No Relocation Rights. Company shall have no rights under this Agreement for any
relocation assistance or benefits whatsoever upon termination of this Agreement, whether by
condemnation or otherwise, and Company expressly waives any right to such relocation benefits or
assistance it may have under any applicable laws, including but not limited to California Government
Code Section 7260 et seq., the Relocation Assistance and Real Property Acquisition Guidelines set
forth at Title 25 California Code of Regulations Section 6000 et seq., the Uniform Relocation
Assistance and Real Property Acquisition Act set forth at 41 United States Code Section 4601 et seq.
and federal regulations set forth at 49 Code of Federal Regulations Part 24.
9.15 Survival of Covenants. Any covenant, term, or provision ofthis Agreement which
in order to be effective must survive the termination of this Agreement shall survive any such
termination.
9.16 Consents. Each party agrees that it will not unreasonably withhold any consent or
approval requested by the other party pursuant to the terms of the Agreement, and that any such
consent or approval shall not be unreasonably delayed or qualified, except where such consent is
expressly stated as within the party's sole and absolute discretion.
9.17 Possessory Interest. Pursuant to California Revenue and Taxation Code Section
107.6, City hereby informs Company that this Agreement may create a possessory interest subject to
property taxation, and in such event Company may be subject to the payment of property taxes levied
on such interest. Any property taxes so levied shall be solely a liability of Company not a liability of
City.
9.18 Representations and Warranties. The persons executing this Agreement on
behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and
existing, (ii) he or she are duly authorized to execute and deliver this Agreement on behalf of said
Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this
Agreement, and (iv) that entering into this Agreement does not violate any provision of any other
Agreement to which said Party is bound.
9.19 Headings. The Article, Section, and Subsection headings contained in this
Agreement are for convenience and reference only and are not intended to define, limit or describe
the scope or intent of any provision of this Agreement.
9.20 Entire Agreement; Amendments. This Agreement contains the entire
understanding between the parties relating to the obligations of the parties described in this
Agreement. All prior or contemporaneous agreements, understandings, representations, and
statements, oral or written, are merged into this Agreement and shall be of no further force or
effect. This Agreement may be amended only by an instrument in writing approved by each of
the Parties hereto.
-18-
9.21 No Third Party Beneficiaries .. No person or entity that is not a Party hereto shall
have no rights in or to this Agreement. This Agreement is strictly for the benefit of the Parties
hereto.
9.22 Time of the Essence. Time is of the essence of this Agreement. The parties
understand that the time for performance of each obligation has been the subject of negotiation by the
parties.
9.23 Exhibits Incorporated. All exhibits and attachments to this Agreement are
incorporated herein and made a part hereof.
9.24 Counterparts. This Agreement may be executed in counterparts which, when all
the Parties hereto have signed this Agreement, shall constitute one and same instrument.
9.25 Effective Date. The Effective Date of this Agreement shall be the latest of the dates
set next to the signature of the Parties hereto, which date shall be inserted into the preamble of this
Agreement.
[END-SIGNATURE PAGE FOLLOWS]
-19-
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the day and year first written above.
Date
ATTEST:
Maria Morris, CMC
City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Hans Van Ligten
City Attorney
Date
"CITY"
CITY OF SAN JUAN CAPISTRANO
Sam Allevato, Mayor
"COMPANY"
BLENHEIM FACILITY MANAGEMENT, LLC
By: ________________________ __
Robert Ridland
President
[END OF SIGNATURES-EXHIBITS FOLLOW]
394/028428-0019
6143924.9 a11/12/14 -20-
394/028428-0019
6143924 .9 a11/12/14
EXHIBIT A
[SEE FOLLOWING PAGE]
EXHIBIT A
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Rldllfl Park Acoea ami Use Uoenee • Exhibit A
IDWJQITB
EXHIBJT "C" 4ND "D" QF GRANT DEEP TO THE PROPEBTX QUTLINING USE
BESTRICTIQNS AND PERMIITED U§t(S
(See AUqch8d)
12
082121183021.2
gxi;IU!II Q
Y§!£ B§IBJm:IQtJ§ -eARqELS 7 A~Q§
(C·1: Exhibit~. 1-3 of Ranch Plan EIR
C.2: Seetton III·H of PC Toxt
C·3: Suction III·J af PC Text)
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ThB Ranch Plan + 8
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t 1. /\GJ-<It;UL ·nJRAL AND cHf·IF.~ ~){l~rrJNG AND tJN.GOIN(; USE$ .
'l'he pvrpoue Bind intent of this Section Is to F.tllow for uses r.ompF.JiiiJie with the
existing ~grlcvltural and. low Intensity nature or the F~ench l'l<:1n PC areal and
consl~tent with the A 1 "Genrmil Agricultural" Olsttict Regulation$ of Zoning Code
Section 7-9·55. These uses Include non-agricultural uses consistent with tha open
space nature of agricultural u~es. It s also Intended tl1at these uses (ag1ioultural
ond non-e~grloulturiill) m~y be QIIOwed as Interim uses within Ranch Plan PC
Planning Areas designated for future develo_pment.
1. Agricultural u~e~: The following exlstlng, relocateo and future farming and
ranchIng uses shell be allowed within any Plann ing Area, In addltlor'l to use~:~
allo~ed by the A 1 "General Agr\culturel" District Regulations per Zoning Code
s~ction 7 ·9·55, subject to mltlgaflon measures Identified In the Ranch Plan Final
Program EIR 569, perth~ procedures described In Sectlonlll.l-1.3 lwraof:
a) Grazing (CElttle, horses, sheep, goats, etc .),
b) Farming (citrus fanning, (Jry farming, and ·row crops) .
c) C£Jret<~ker housing 9nd related facilities In relation to on-going agricultural and
ranohi'og operations, Including tile "Ranch House" reslclence located aoL!ltl of
Ortega Hig~way in Planning Area 10 and the "Horsa Hanch" residrmce at
33101 Ortaga Highway In Planning Area 4.
ci) Employee quarters related to agrlCLiltvralllses.
e) Livestock feeding rancl"'tas In compliance with' applie€1ble health and safety
regulations. · ,
f) Pacldng plants for agricultural products .
g} Permanent facilities for sale of agricultural products grown within the Ranch
Plan PC Area.
h) Apiari.es (if 150 feel from a street or highway, 40 feet from any property line
· · -..... -.. tll'tlt' more than 400 ·re·erfrorrrarrm:cuple&dwetling)":·--·--··· .... •··· ...... ~. ··
f~Mch PIM f'lC ~rogram Texl ps Approve(! November ll, :i!004 by Ordinance No. 04..014 Pooe ee
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2. l!xlstfng U.eH~s: The following existing uses shall ~ Hllowad in spproprlr:~te
. locations throughout U"ie r~anr.h Plan PC Area, per the proc;edur~~ In Se<..11on
III.H.3 heu·eof;
~;~) Rancho Mission VieJo hfle~dquart~rs ("Oflclna")' at .21>811 Ortega Highway,
Including a· helipol't.
I)) J.adera construction offices at 28811-A Ortegs Highway.
c) HancM Mission VIeJo maintenance yard at 2!3672 Ortega Highway .
d) Ranching fac!llties also used periodically ror recreatlone~l purposes (Including
"Cow Camp• at 31471 Ortega Highway, and "Ami'lntes camp" and •campo
Portola" within Planning Area 10),
e) Communication transmitting, reception or relay .racilit~es (lnciLiding
AlrTouch/PacBell Wlrele5s, B~ll South, Saddleback KSBR, f;OG&E, and
SCE) and RMV Telecom antenna sites.
~ Public/private utility buildings and structures.
g) Existing infrastructure ·facilities Including bL1t·. not lhniled to all t:!XIstlng ranch
roS~ds, pipelines and utilities. Of particular note, reconstruction of the San
Juan Creek crossing of roodwElys and utilities connectlf.lg Planning Area 3 to
Ortega Highway shaH be allowed In the event of storm damage .
h) Wholesale nurseries (including Tree of l.ife Nursery, Color Spot Nursery, DM
Color Express Nurseries, TI'\J-Green Wholesale Nurseries and O'Connell
Landscaping yard).
I) Cornmercle~l stables (Including Otitks/Bienhelm/Ra(loho Mission VieJo Riding
Park, Oaks Corral!J. Irvine Smith, RJO Horsa Ranch, St. Augustine's Training
Center and Stables.
J) Research and deve~lopment testing facilities and ~tlvltles (Including TRW,
·····~·--'~~~---..... -· ... Northrop ·Srummari·Spacer'fechnology-and Propulsion-Testing Site);·· · .... --...
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k)' WE~ste disposal operations and related uses (including Solag Disposal, Tierra
Verqe Industries and 'La Peta Greenwaste ).
f) Storage of recreational vehicles, campers, trailera and boats.
Hi} Recycling and transfGr/materials recovery facilities per Zoning Code Section
7-9-146.12 (Including Elwes Materials Asphalt Recycling}. ·
n) SL1rface mining emd qut:'lrrylng of I'O<;k, sand, gravel, aggl·egate, earth, cloy
and almHar materials per· Zoning Code Section 7-9·'1 04 (including Ca(ffornla
Rnnch Plun PC Program Tctxl as Approvo(J Novembfir !1, ~004 by Ordln~ncA No. 011.{)14
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1·1 ortlund Cerncmt/Catalinfl Plll<:ifi<.: C9nmate South, Ctllifoml~ !.:lilic~/Ogle::by
No~lon, Transit Mixed Goncmte Company/City Conc~rete, OlstJn l::~i:lvingstorH:l,
Inn. ond Sierra Soils).
o) ·Resource mltlgallon sites for the preservation or replac'Clment of native,
l'i parion or other biologica l habitat, as ~pproved by the appropriate regulatory
agency (~.g., Army· Co rps of E1)9lneers , U.S. Fish & Wildlife Service California
Depertment ot Fish and Game and/or the Coun ty).
3. Procedures:
fl, Contimratlon of Existing UseB
'I) /\gricullural ~nd ~xiBting u~es listed in $ectionl:l iii.H.'I arld III.H.2,
raspe<:tively, may continue In their present location(s) In perpetuity without
nead for subsequent perrnilt lng or approval.
2) Any buil dings, strut."t ures or ot her fac ili t ies ut ilized In connection with an
establlshed/exts'tlng use may be repa ired , repiaced or mod ified without
ubtolning new permits ·or approval~; prov ided , however, that any and all
const ruction ~cllvltlae performed in furt herance of the repair, replacement
andfor modification of said bu il dings, structures ·and racllittes shall comply
wlth aP,plicable building and safety codes.
:}) In Instances where a use fisted in Sections JII.H.1 and III .H.2 le allowed
per a Use Permit, and that particular Use Permit is subject to a· Ume
limitation, the Use Permit may be renewed administratively per approval of
the Director, PDS.
b. txpanslon ofExl~tfng Uses
1) AgricL tllu ral Uses -An:Y agr lcttllural use listed In Seoti Gn III.H.1 may be
expanded wit hou t the need to obtain a prior perm it or other app roval from
the County . Notwithstanding, expansion of an agricultural use may
tequlra the Issuance IZ!I a pemllt or other forma l author lzet lon rrom a
.. ·· -.. .... , ... f-ed era r-or· srate· e~rency· prtor rc commence ment ·ar ·.usB" ·af ·ltle·:expanded .... ·--·-·
facility . Add itionally , any construction activities pe rrorrned In rurtherance.
of the expan ded use shall comply with applicable build ing and safety
codes.
2) Existing Uaes -Any existing use identified In Section JII.H.2 may be
~xpanded without the Issuance of new County approvels or pennits,
provided that:
(a) Any expansion shall fully comply with F.tll ~xlstin(J development ancJ
permlttlno standar·ds for the pa!1iClllar use;
R~ncl1 Plqn PC Pmuram Texl u~ Appruvad Novernber 6, 2004 by OrulnRnce No, <M -014
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(b) A.lf construction actlvfties perfonned in ~wlheronce of th~ expansion are
conducttid ill klccordance with ~;~ppllc~ble building and sat~lty liOdtJs;
a~ . .
(o) All necessary permits anct/or authorizations from applicable _federal am1
!;tate agencies are obtained prior to commencement or use of the
~xpanded facility.
o. Relocf~Uon of Existing Uses
'I) Agrlcvltural Uses -Any exls~ng use Identified in Section 111.1-1.1 rTray be
relocated within or throughout tM Ranch Plan PC Area withoiJt the need
For Issuance of a new permit or other pr1or approval from the County.
Notwithstanding, relocation of an existing agricultural ua~ may require the
Issuance of r:~ permit or other rormal ·euthorizatlon from a 5tate or federal
ag·ency prior to the desired relocation.
2) Existing Uaes -Any existing use Identified In Section llf.H.2 may be
relocaten within or throughotJt the Rancl1 Plan PC Area, provided that:
(a) A Site Development Permit shall be roqulred, per Zoning Administrator
l:lpprovol, in accordance w!th the provisions of Zoning Coda Section 7-
9-150.3(d);
(b) All ner.essary parmlta and/or authorizations from applicable federal and
state agencies shall be obtained prtor to relocation.
d. New Agr lculturel Uses: Co nsis tent with' lhe provisions of Section lll.H:I,
above, new agricultural uses (as well as any authonzed uses Identified within
th e A1 ~General Agricu ltural" District) may be conducted within eny Planning
Area without the Issuance of any County approvals or permits, provided that:
·1} All new facilities, structures and buildings shall comply with existing
t1evelopment flnd design standards;
2r All' cO'r~·~tru·etrotr actrvltlM ·perlorrrnkf twconnijctlort ·witt!· the-e~;tab'll~nmenr ·· ...
of the new use(s) shaH compl~ with appllc.ab!e building and safety codes:
£lrld .
~) All necessary permits and/or authorizations from applicable fedaral anli
stota agencies shall be obtained prior to commencement of the new use.
'~"ncn Pkm 1~c Prownm Text ns A~pr:uv~~ Nov0ml)er 8, 2004 by OrcJinRnc8 No, Otl .(!14 P~~go 69
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·rh~ pL1rpuse ~nd iF1tent of this Tempori:lry Uses F"tmnitted uhaptar of the~ f~<lnc:l1 t'>tan
PC Text is to llst all temporary useu that stlall ba allow~d wtthlr'l i:'llf Plallnin~ Arc~'m
and ul:)e r:Atagori~ffl (with tha exception of the Opan Spac~ (S~ction 1\1.1) catC3!lory,
Lmless ott1erwr::>e restriGtl')d b~low. Said temrorary uSI:)S lnclu,le, t'>ut are not llmlten
to :
·t, r-onstruction activities (lnGluding the lnetallotion of constru0t lon offices ond 111~
otorage of equlprnant end materials),
?.. Construction offfc;e. The temporery use of a constru'-ltJon offic:a diJring · the
f')Om~tn.lcticm of a main building on the s13me stte shall be nermitted upon the
following conditions:
a . A temporary con~>tructlon office shall be removed or shall be converted to ~
permitted use prior to ths lssllanee of a certificate of use and occ;upan(;y for
1M mr~irt building or buildings. If oo11:1tructlon Is phal3ed over l;l length or Ume,
the pflnnit may provide tnat certificates of vse e:~ncl occupancy may be Issued
f<'r cornpltlted buildings, except the last buildings to be c:omp)etad, prior to
removal or conversion or the temporary use.
3. Continued use of an exi~tlng building during conslrLictlon. The use of tW axistlng,
lawfully established building may continue durjng constrLJGtlon or relocation of
~1nother building on the same building si!A, in compliance with tha fo llowin9
rrovlsions: .
a. Conformity with regulations. Prior to ·occupancy of a new building, the ex!stlr1g
builtling will be brought into conformity with any additional regulation l'endered
appliqable by tha placament of any new building on the site. Conformity will be
accomplished by removal, reconstruction, relocation, conversion, r.hange of
use or finy combination thereof.
b. Gw~rantae of completion . The Director, PDS, ~hall require the le:mdowner to
provid~ a gu~wantae, which mmy include a boncl, to ensure full compliemce with
Elppflcabl~;~ regulations upon completion of the new building o1· sooner if, In tbe
opinion of the Director, PDS. work pertaining to the completion of all fac111tles
required by laW ts not being dil\gently purs1.1ed .
4. Temporary excavation/eXtraction of construction l:lggregate or construction
r.e.lata.d .r.uatedals..extractlon.shallbe..allowed .UUrlng. cor.1s tr.uction .g r.adlr.Jg .anci.orh ....... .
site · earthmoving acUvltles to promote project construction efficiencies and rlmlt
long ·range transportEitfon of construction aggregate snd construction reltlted
rn£1ter i!il subject to all of the following condition$; .
1:1. Such temporary excEJvstion/extre~ctlon use would ba Included in appllc~;~bie
grading or Site Development PElrmits far a dev~loprnen\ project am1
c.:onsistent with the R~nch Pt1:1J1 PC and Final Program EIR !;>US.
b. i!xporteticm ol' any surplus excavated/extracted construction aggregate or
Gonstruction·related rnateriEils !.l~lt111 be limited lo prlv~te or P~lbllc constt·lwtion
projects within the bou11darlft$ of t'he Ranch Plan PC Area .
o. l:Kportatl.on of any surpll.ts axcaveted/extracted construction aggreg~te or
construcUon related materials within the project sJte shall be allowed only
1-\tU\Ch 1"1111\ ~C PrQgrarn T~xl 1111 Jl..pprQved Novfll'l)ber !1, 2004 by t)r~1lr1 1111~fl No. 1)4-1)11\ Pr~,e f)fl
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Wilen rlCIUFJI ~:onstruct!on IJradtng and t~arthmoving ar.tlvHies have
oommenc~d and Sht!ll caase wl1en It ts detennlnecl that construc!lon grading
t:lnd eartllrnovlng activities have terminated, have been lndl\innltely
BLitlpElnded, or ma no longer being actively pursued for the develol)ment
projm;t.
5. Gornmerctal coaches. A temporary commerc/CII r.oach may be permitted subject
to ~pproval of~ Site Development Permit In accordance with Section 1/.C , "Site
Dev~loprnent Perrnlts," emd subject to tha following:
C:l. Time limltEltion .. A Site Development Perrn!t ap!Jiic~tion for a ternpor~ry
uomrnerclat coach rn~y be i:lpproved lor a maximum of two (2) Yt:lelrs from the
date Qf approval.
b. Cash bond. A cash bond In lhe amount of tivB hllndred dollars ($500 .00) for
each comrm~rclal coach unil shell he posted with the Dire~tor, PDS. to
Qllarantee the removal of each comrnerciel coach unit upon t~le expir~;~lion u"f
the Site l)l:lvelopment Permit.
6. Christmas tree sales ·facility . A temporary Christmas tree safes facility shall be
parmittecJ sullject to the fofhMing requirements:
7 .
""· Oats of opening. A Christmas tree sales raclllly 1:1hail not be opf;ln for business
during any calend~r year prior to the day attar Thanl<sglving. However,
ministerial penTllte n.ecesse1ry to establish the bus iness may be issued by ·
November 'IS.
b. Mercl1~ndlse to be sold. A permitted Chri5tmus tree s<;~les facility shull not
engafire In the sale of any merchandise nol directly associated with Cl1ristrnas
trees and Christmas decorations.
c. Electrical permit. The appllr;ant shall secure an eleclrlcal permit frorn t11e
Director, PDS if tl1e facility is to be energized .
d. Removal of racllity. The f~lGfllty S'leJI be re1 :nqved ~nd the premh;es shall be
cleareCI of all debris and restored to the condition prior to the establishment of
the facility within fourte~tn (14) days arter Chrletmas.
f'l . Fire prevention standards . Eech Christmas tree sales f'lcllity ~hall comply with
fire prevention standards as approved and enforced by !he County Fire Chief.
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1'-lf.llloweer"! pumpl~ln sales facility. A temporary Halloween pumpkin sales facility
sht:lll be permitted subject to the following requirements:
Cl. Date of opening. A Halloween pumpKin s~l~a facility shall not be oprm tor
bueiness during any calendar year prior lo October 4.
b. Merchendise to be sold. A permitted Hallow~en purnpkln sales fac ility rnay
not sell lterna not directly a:3soc:1ated with purnpl~ins and Helloween
decor1:11tions. ·
c. Electriciill permit. The appllcemt shall set:w·e ~n eleGlrit:al pennit from t11e
Director, PDS if the facility Is to be en~ryized.
F!PJnr:h PIM PC.:. P~Q~rorn Text as Approved November 8, 2004 .by OrcllnoncG N[>. 04-014
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.1. Hc-1moval of facility. The ff.lcility shall ba rernuved and the pr(:)rrtl~at~ cle~;wed ol
all d~bris and restorsd to U1e condition prior to the establishmenl of 1t1e fac;iiity
by November 14.
e. fim prevention ~tandsrds. The facility shall cornply with fire prevention
stnnrlnrds aa approved ~nd enforced by lh~ Coun.ty Fire Chief.
a. Special outdoor gatherings. T.he _temporary use of property tor aper..:lal outdoor
gatherings Including, but not limited to, pageants, fairs, carnival$, rodeos and.
olhflr athletic, religious or entertainment events. Such activities are permitted,
wftholJI l'egard ror other land use regulations to the contrary, in any open spaci:J
Planning Ar~Cl in compliance with the following provisions:
a. ActiviHes on property owned by or lease.d to the County and public road right~~
of-way may require an encroacl1ment petmlt issued by the t?irector, PDS.
b. Private outdoor gatherings conducted within open space sreas (including
those open space areas regufatHd by Section Hl.l} stu~U not be subject to ~1e
restrictions and requirements established In Zoning Code s~ctlon 7·9·136.11,
"Special Outdoor Gathering;:;". ·
c. The temporary use rna y be permitted for a period not to exceed ten ('I 0)
consecutive d~ys. Eyents rec1ming more than rour (4) times in a calendar year
-me not ~.:onsidered temporary. ·
d. The Director, PDS may require a cosh bom'l or other ~Juarantee for removal of
tha temporary wee, cleanup and restoration or the activity site withtn s+Jven (7)
r.IElys of the !'lctivity conclu~ion.
e. Applications ror permlts/certiflce~tes required by subsections ''a." and "b."
t~bove, shall be referred by the Director, PDS, to other ~trect~d caunty
agencies as may be appropriate for review and comment.
f. Related Issues Including, but nol limited to, pollee/security, food and water
supply, use of tents and canopies, sanitation facilities, medloaf services, noise,
signage, fire protection and traffic control shall be sat\sfac\orlly addressed S$
may b~ required by the Director, PDS, Sheriff, Fire Chief, or Health Officer in
their ~dmlnlstration or other County ooqes. Such othei codes may rec;wtre the
~ppllcant to obtain permits such as building, elsctrical, health and tent permits.
9. Farmerl:i' Markets and off~slte sa,le of agricultural products. A temporary stand for
.. · · · ·--·--· tHe"'S"iilte: of· Stf9sonat· agr.toultcrral "prodocts-not grown .. wlthtn· the · Ranctr-Pian F'C
Area shall be permitted subject to the following requirement~:
a, Establishment of use/time limit. Prior to beginning sale of any product, the
eppl\cant shall obtain a temporary Cenificata of Use ano Occupancy for land
from the County, The Certificate shell be good for a period time of not to
exr;eed eo days from datt;! ot is~ue ,
b. Merc.hsndlse to be sold. The stand shall be limited to the sale of ~gricultural
products ..
(), Elec;trlct~l permit, The appJlcent shall ::Jecure M ~!ftctricsl permit from l'f1e
Director, POS If the facility is to be energized.
R~m:n P1un PC Progrt~m iex1 as Approveo Novrsmbet 6, 2004 tJy OrdiMncs Nu . 04 ·014
• --·· ........... --·· ... -...... ,_. --··· ........... ~· •••• -~·· ""·-~·-··~· ....... , ___ , ____ ··-··-··---...... ' .... ~-·-·-· .. ' h, .. ---.... ·--··~ ............ -... ··-· •• --·-. -:-... -.. ... , .• __ ,_ .. _ .............. ,_!"'_ •. __ ............. ~ ....... , ..... ,:-·-· .... ·: -··--........ .. :. . .· . ' ; ' ,. '' . ' ' .
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ti. Removal of facility. The facllll'y shall l'>e removed aml the pm111ise~ (;leE:II'~)d ot'
all debris and restored lo trw condition prior to the e~tsblishrnanl of the facUlty
will! In fourteen ( 14) c.Jays of the expiration of the timEt limit .
r.'l. r~lre r>r~vention standards. Tha facility stt~ll r.omply with lire prevention
strindards as approved and enforc;ed by the County F'ire Chief.
f. Site Development Permit. In addition to the above requirements, an opprovecl
Site Development Permit in accordance wHh Section II.C, "Site Davelopment
Permits,·• sha II be required. ·
1 o. Firaworl<s c1fspl~ys, as E~llowed by the Or~nge County Pire Authority.
1 ·J. Subject to the approval of the Director, PDS, a landowner may conduct such
othar temporary ~1ses upon ~1ls property as are consistent with the purpose and ·
Intent of this Section.
-··---·--··-··---~··-........... -·· ...... _ ...... -· .. . ... .. .
l~ancn Pl<lll PC Prognun Tt'l<t ~$Approved Nove/ll~r 8, 2004 by Ordlnol'lr.u No. 04-014. PtJ~ 99
........... ····-~· ~··..;~ ............ ~---··--.. ---·-·,-·_ ... .
Maximum Allowed Traffic
Sut>jec\ lo all ~ppllcable governmental laws, rules and restrictions, Saller plac&e no res\liCtlon on
City relatrns to the maximum number of trl\)6 to end fro~n the Froperty on weekends end th'a follow!ng
holidays: New Years, Memonal Day, Four1h of July, LaiX.lr Oay, Thanksgrvlng and Christma~.
The maximum number of trips during tha weekday P.M. peak hou~ from the equestrian faoHitres,
sports field complex"s l;jnd other allowed uses on the Property shall not exceed a total of 203 trip'
(comblnedlnoound and outbound trlps). The City may allocate these trips among the e~llowed usee In Ita
discretion eo long a& t~e maximum number of tnps specified above Is not exceeded.
For purPQses of calculating the number of lrlp~i from equestrian am! :!ports fleld uses, a trip
ge11eration factor of i .o P.M. peak hour trip for tlaQh permanent equesb'lan stall, and a faGtor of 20.67
P.M. peak hour trips per sports field/soccer neld shall be applied .
...... -. .............. ....,_ ..... ~_...-___,.~------------..-
Exe,lsnat!Q,n Ql ~nd GuiQ'e to APe!Js;«tion of the "MaxlmiJlll MQYf8d Tratflc" Rl1§f[lct{On
Based on proj~ctiQns or Mure hfflc associated with Plttnnlng Area 1 of lne Rench Plan, wntcn
lnclvdes th~~t Propflrty, SefltJr'$ prfmary oonaem Is tire traffic to oo gen11rFJted rJurlng the weekday P.M.
prJeX hour (/Jt., 4:45p.m. to 5:4' p.m.) .. For that reeson, th11 m9xlmum allowed ~fffo restrictiOn set forlJr
ebove Is J<eyerJ to the weekday P.M. pflek hour. In short, th11 re;strlctlon rfK!ulres the City to m~nege Its
()Pf'rtJtfons fmd QVfmts to ensur11 that tr9fflc generot11d from U!Jfl$ on thl1 Proporty during tttet tim~ piJriod
wovld no( rtKceed 203 trips (combined lnbQund ana ourbouna trrps), A-7 noted abovs, tM City may
allocate thPJSI1 tr/p;s among thfJ ~1/oMJ'd uses In Its dlscretlen so long cs the maxlmvm number of~
spt~o/ffed /# not fl xceedt:Jd.
D62/211ij3021.2
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Given thfl natu~ ofthfi1J61JSIO be conducted on the s/C6, whloh ere expeoted to be primarily a
conrlnuatlon of u"s conrJPJcteri tm tht~ Propt~rty ovw thfl pas/ ~vt~ml ye~s, It Is not fJXper;tod th~t the
t~fflc limitation would unduly restrict the City's use of thtJ Propt~rty. For exampkl, most of the horse
shows typically occur over 2 or more day:J anrJ are low 3peclator &'ronls, wfth traffic lo and from tho:,r~
actlvftfes b*Jing spre8fi moro or less 11vonfy over those porlocis. Fttrfhermorl'l, horse trsllm uo nor
gr:mar!tlly oper~'~ clurtng the peak f!Qurs.
It shoula IJf1 nott~d thtit the fiOOvrNtsted trip ge-Mratlon rate of one (1) P.M. PIJ"K hour trip per
horw stall do&s nof pMain lo the temponJry ~tails IJSJJd In r;on)unctkm with the horo11 shows-. The I ratFJ
pertains to permarnml stalls axpeoleel to be assocltittJd wnh the om (1) elloWfld commtrcktl stab/11 on the
Property, Thus, frJr examplr~, If th6re were CO occupied horse stalls at the comfTiflrolal slt~ble, they would
be fJKPeoted to generate 50 lrip!J during ths P.M. pfiBk hour.
WNh regard lo sports fllJidi~KXcer fleJrJ us~s on lllrt Property, a fsr:tor of 20.67 P.M. pet~k hour trips
WJ:Juld b(} appJt~d as steted abo~. Thus, for eJ«Jrnplt~, If thfl~ war$ 4 sport$ f/IJ/d$/$Oooer fletcis In
o(Jfretlon durfrv m~ekaay flftemoonlfJVf1nlng hours, a total of 83 P.M. pftalt hour trips woulrJ 1)(1 flxpeolt~ci,
In :1ummary, the oumu!rltlve trips assoclatcr.i with fht~ horse shoW$, tM permtJnent nors, stBIIs
{lncf ofhf!lr alloWfld tJ~~s such es sportrJ flelri ust~s (sf1e ®low), wov,ta be conqi(!erFJd In detwmtnlng
wheth~r th~ maximum ~floWtJd t~ffic /Imitation wes ~lng compl/9d with. Using thfl afx)ve examples, with
60 psrman~nt horse stalls and 4 sports fields, a Iota/ of 133 P.M. peek hOur trips would bfl generated,
lesvlng 70 P.M. peek hour trips evelleble for any horsl! shows or atfter evrtnts takinfJ plsr;e at th9 sttme
time.
rr should b6 tJmpha$/ze.ri that trips to ami from the Property on W6ekend days (J..b Sflturday encl
Sunday) and the holidays described above arfJ not f'fl~rrfct~Ci. Thus, If would bfl eKptlr::ltfd that m~r
t~VFJnts on ih6. (>ropt~rlY woufd [)q hrJid ~n these r;teyll. In ~ct, given the maximum rtllowed trefflo flmitat~n,
any evflnt rhBI woulrJ ~vlt In more than 203 P.~. Ffflak. hour trlps, when tfiiJ trafflc from thai ~vent Is
addfld to traffic from other flffowt1d uses on the Propt~rty, would be rtJqrJir~Jd to be Wild on thfl vvflekend,
rrr any 11vent, thiJ· OJty i$ flKliJirfld to rvgvla~ fillY proposlfid major mt~krmd trr:(/v/ty sucfl mat II
would not r;nJata significant 8dvt1rse lmp{lats on the oirou/5tlon systt~m ~nd not advtf!Jflly atfflor ex/sling
01121211 a:,o21 .2
................... -................ -. .. .._ ·····-·-... ·~··----~··---·-..
I!Jild future re~~nts In lhe eree due 1c FHlfklng, dust, noise, light and glert or ofh'lr lmpaefl. To help
r~duc'l the.potentl~l for light find glflrt lmpttets, RMV h~ts prohlfJitfJd th1 u~e of perrrllJMnt lighting onlht
sit&.
The app/lc~Jtlon of norrnsHy requlrsli conditio~/ ~.me or olhtr psrmlt requlromt~n/5 of the Couflly
(or th, Cfty, after tmMxatfon of the Property), and CEQA f'fvfew ossoclat~ with such pt~rmlttlng, would
bfJ exp'Jeted to fldPqutJifl/y rtgul~:~ti1 such 'IVtnla ana to 'Insure 11ppropr/atf1 mit/get/on meMUN~r are
sppllea wnerelndlcetsrJ.
082121 1 83021 .2
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394/028428-0019
6143924.9 all/12114
EXHIBITC
INTENTIONALLY DELETED
EXHIBIT C
EXHIBITD
RULES AND REGULATIONS
1. No keys to locks, gates, fences and/or other structures shall be made or otherwise
installed without the consent of the City of San Juan Capistrano ("City") and a copy of each key to
any such lock, gate, fence, or structure which is not installed by the City shall be delivered to the City
prior to its utilization thereof
2. All gates, doors, and similar access and control points shall be closed immediately
upon passage through the same.
3. All trash and debris shall be removed from the Property.
4. Vehicle speed shall not exceed 15 miles per hour.
5. None of the following shall be permitted on the property: drugs or narcotics (except
subject to a written medical prescription therefor and which is evidenced thereon); hunting; fishing;
and firearms.
6. Transit to and from the Riding Park Parcel or use shall be limited to City delineated
roads; and no off-road travel and/or use is permitted except in accordance with the written consent or
written use agreement issued by the City.
7. No removal off anything (e.g., plants, artifacts, etc.) found or located on the Property
except in accordance with the written consent or written agreement executed by the City.
8. No storage or dumping of anything upon the Property except in accordance with the
written consent or written agreement executed by the City.
9. Amplified speakers systems shall not be utilized in any capacity before 7:00a.m. or
after 10:00 p.m. Monday through Friday or before 8:00a.m. or after 10:00 p.m. Saturday and Sunday.
10. Any and all use is limited to "official" (and not "personal") purposes.
394/028428-0019
6143924.9 all/12/14 EXHIBIT D
RIDING PARK MANAGEMENT AGREEMENT
BY AND BETWEEN
CITY OF SAN JUAN CAPISTRANO
AND
BLENHEIM FACILITY MANAGEMENT, LLC
394/028428-0019
6143924.9 a11113114a19'3G/14a1G'28'14
RIDING PARK MANAGEMENT AGREEMENT
THIS RIDING PARK MANAGEMENT AGREEMENT ("Agreement") is made and
entered into this -1 ~day of November, 2014 ("Effective Date") by and between the CITY OF
SAN JUAN CAPISTRANO, a municipal corporation ("City"), and BLENHEIM FACILITY
MANAGEMENT, LLC, a Delaware limited liability company ("Company").
RECITALS:
A. City is the owner of that certain real property located in the City commonly known as
"Rancho Mission Viejo Riding Park at San Juan Capistrano" depicted in the attached EXHIBIT A
(the "Property"). A portion of the Property within the bounds of the solid black line shown on
EXHIBIT A consists of approximately seventy (70) acres (the "Riding Park Parcel"). City desires
to utilize the services of Company to manage and maintain the Riding Park Parcel in accordance with
the terms and conditions set forth in this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for good and valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, City and Company hereby agree as follows:
1.0 TERM OF AGREEMENT
1.1 Effective Date; Term. City is contracting with Company, pursuant to this
Agreement, for provision by Company of Riding Park Parcel management services , as set forth in
this Agreement, commencing on a date subsequent to the Effective Date. In recognition of the
foregoing, t.J,.is Agreement shall be effective on t.~e Effective Date set forth i:1 the preamble, but the
term of Company's management of the Riding Park Parcel pursuant to this Agreement shall be the
"Management Term" set forth in Section 1.2. This Agreement shall terminate and be of no further
force or effect as of 11 :59 p.m on December 31. ~(:)++20 16, unless sooner terminated pursuant to the
terms of this Agreement ("Termination Date").
1.2 Management Term. The Management Term shall commence on Januarv 1.
2015 ("Management Term Commencement Date") and shall end on the Termination Date.
2.0 MANAGEMENT AND OPERATIONS
2.1 Riding Park Parcel Management by Company. City hereby contracts with
Company, during the Management Term, to manage and operate the Riding Park Parcel in
accordance with the terms and provisions of this Agreement ("Riding Park Parcel Management
Services").
2.1.1 Acceptance of Riding Park Parcel. Company accepts the Riding Park
Parcel in its current "AS-IS" "WHERE IS" "WITH ALL FAULTS" condition as of the Effective
Date and that, except as otherwise provided in this Agreement, City shall have no obligation
whatsoever to provide or pay for any alterations, improvements, or work therein.
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2.1 .2 Access to Riding Park Parcel. City hereby grants to Company a
non-exclusive revocable license, subject to and in accordance with the terms of this Agreement, to
enter upon and use the roads and other rights of way across the Property as designated by City on
EXHIBIT A to access the Riding Park Parcel, or alternative roads, other rights of way, and portion of
the Property as City may reasonably require Company to use to access the Riding Park Property from
time to time ("Access Roads"). Other than the Access Roads , Company shall not enter upon or use
any other portions of the Property for any purpose without the express written consent of City.
2.1.3 Management of Riding Park Parcel in Accordance with Permitted Uses.
The Riding Park Parcel shall be used solely for the purpose of hosting sporting and equestrian events
and community recreational and sports-related activities, and ancillary activities appropriate to
particular events including. but not limited to, food and beverage service (including serving of
alcoholic beverages in compliance with applicable permit and regulatory requirements of the State of
California Department of Alcoholic Beverage Control) and use of amplified sound equipment
(provided the same does not exceed the City's noise ordinance), so long as such uses, individually
and/or cumulatively, do not increase traffic beyond existing levels and such uses comply with the Use
Restrictions attached as Exhibits C and D of the Grant Deed transferring ownership of the Property to
City, a copy of which Exhibits C and D are attached hereto as EXHIBIT B (collectively, the
"Permitted Use"), and for no other purpose. All other uses of the Riding Park Parcel that Company
may propose shall be subject to the prior review and written consent of the City Manager, which
consent may be given or withheld in the City Manager's sole and absolute discretion. Company
shall request such permission from the City Manager, in writing, not less than thirty (30) days prior to
the proposed commencement of any such event or use. Company shall use its commercially
reasonable efforts to schedule, promote, and use the Riding Park Parcel with Permitted Uses so as to
maximize use of the Riding Park Parcel but within the mandated traffic levels and consistent with
proper management and maintenance of the Riding Park Parcel for equestrian and sports-related uses.
2.1 .3.1 Parking on Riding Park Parcel. Company and the users of
the Riding Park Parcel, may park vehicles, including horse trailers, on the Riding Park Parcel in
conjunction with the Permitted Use; provided, however, that no persons using the Riding Park Parcel
shall be permitted to park, and Company shall prohibit all persons using the Riding Park Parcel from
parking, on any other portion of the Property
2.1.3.2 Sierra Soil. City and Company acknowledge that prior to
the Effective Date of this Agreement, certain work was performed by Sierra Soil Products, Inc. on a
portion of the Riding Park Parcel. Company shall be responsible and liable for any damage, cleanup,
or liability arising from or attributable to such work.
2.1.4 Identification of Riding Park Parcel. Company shall identify and
advertise the Riding Park Parcel exclusively as the "Rancho Mission Viejo Riding Park at San Juan
Capistrano" at all times when performing or otherwise conducting a Permitted Use upon the Riding
Park Parcel. Company shall adhere to the City's approved sign program for the Riding Park Parcel.
2.1.5 Riding Park Parcel Events. Company shall submit to City Manager, not
less frequently than once per quarter, covering the four quarters of the Management Tenn, by the
dates set forth below, a written request for the City Manager's approval of the specific proposed
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events and uses for ea c h upcoming calendar quarter during the Management Term of this Agreement.
City Manager's consent shall not be unreasonably withheld provided the proposed events and uses
are a Permitted Use and City Manager or authorized designee shall respond in writing to the request
within fifteen (15) calendar days of receipt of Company's request. Company shall submit such
written requests in accordance with the following schedule :
For 1" Calendar Quarter (January 1 through March 31):
For 2nd Calendar Quarter (April1 through June 30):
For 3'd Calendar Quarter (July 1 through September 30):
For 4th Calendar Quarter (October 1 through December 31 ):
Not later than preceedi ng December 15
Not later than precceding March 1
Not later than pre ceeding June 1
Not later than preceeding September 1
Company shall continue to provide public use dates and shall develop a calendar to include during the
Management Term: (A) additional sports events, including tournaments , with priority for San Juan
Capistrano-based teams, and (B) community events that shall include a minimum of six (6) days of
community events such as movie nights, a pumpkin patch,' winter wonderland, and concerts in the
park (the minimum of six (6) days of community events shall not include the additional sports events,
including tournaments, with priority for San Juan Capistrano-based teams described in clause (A)].
Notwithstanding the foregoing, Company acknowledges that City has the right to reserve and use lhe
Riding Park Parcel for the uses specified in Sections 2.1.5.1 and 2.1.5 .2 and Company shall
coordinate with City with respect to same.
2 .1.5.1 Rancho Mission Viejo Rodeo. Notwithstanding anything in this
Agreement to the contrary, City retains the right to allow use of the Riding Park Parcel for the fmal
two (2) weeks of August for the purpose of allowing Rancho Mission Viejo, LLC to host the Rancho
Mission Viejo Rodeo or similar event, together with any and all related events and functions
associated therewith as determined by City in its sole and absolute discretion.
2 .1.5 .2 ity Use of Riding .Park Parcel or Capital improvement
Installation. City shall have the right to and it shall not be a breach ofthis Agreement for City to, at
City's sole discretion and at any time during the Management Term to : (a) install on portions of the
Riding Park Parcel utilities, storm drain facilities, public restrooms, water, sewer, and other
infrastructure; (b) grant easements for the improvement of Ortega Highway and La Pata Road, which
improvements may require use and/or encroachment onto portions of the Riding Park Parcel; (c)
construct on portions of the Riding Park Parcel the Regional Riding and Hiking Trails as shown on
the County of Orange approved Master Plan of Regional Riding and Hiking Trails or other public
trails pursuant to City 's plan and specifications, and (d) allow the Reserve at Rancho Mission Viejo, a
California non-profit public benefit corporation, to enter onto the Riding Park Parcel and perform any
activities thereon that may be required by (or are consistent with) the terms and provisions of the
Southern Habitat Conservation plan approved by the U.S . Fish and Wildlife Service on January 10,
2007 (the "SSHCP"). No adjustment in Company's compensation hereunder shall be made due to
any losses, increased expenses, or impacts to Company resulting from or arising from the exercise of
any of the activities set forth in this Section 2.1.5.2 .
2.1.5.3 Public Access to Riding Park ParceL Within ix.tv (60) days of
the Effective Date. Citv Manager and Company s hall identify areas within the Riding Park Parcel and __ . -{Formatted: Font: Not Bold
the time and day where pub lic acces · and use. over and above those previousy provided. can occur
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consistent with !:he safety of the publi c and the operations of the Company. A proposed ··Public Use
Implementation Plan'" hall be ball be prepared setting forth the proposed times and areas of public
use and acces and ucb other rules or regulations that arc deemed appropriate. and s uch
Implementation Plan shall be presented to the City Counci l for review and appro a l no later than
ninety (90) days after the Effective Date.,
2.1.6 Impact of County La Pata Project. City and Company acknowledge that
the County of Orange has undertaken expansion of La Pata Avenue adjacent to the Riding Park
ParceL The extent of the impact and its effect on the ability of Company to effect use of the Riding
Park Parcel for the Permitted Use is not known. Notwithstanding, no adjustment in Company's
compensation hereunder shall be made due to any losses, increased expenses, or impacts to Company
resulting from County's work.
2.1.7 Riparian Resources Areas.
2.1. 7 .l Identification of Riparian Resource Areas. Portions of the
Riding Park Parcel contain riparian resources that are subject to the provisions of the SSHCP and its
Implementation Agreement. These resources areas ("Riparian Resources Areas") are specifically
identified and depicted in EXHIBIT A attached hereto as "Do Not Disturb Areas."
2.1.7.2 Prohibitions and Obligations. Company shall not (and
shall not authorize, allow, or permit others to) enter onto, improve, or otherwise use the Riparian
Resources Areas or any portion thereof for the Permitted Use or any other activity. Moreover,
Company, at its sole cost and expense, shall undertake, perform, and complete all actions necessary to
restrict and prevent any person, domestic animal, vehicle, equipment, or other apparatus from
entering onto the Riparian Resource Areas (which actions may include, but are not limited to, the
construction and maintenance of fences or other barriers and placement of signage outside of the
perimeter of the Riparian Resource Areas). The Arizona Crossing between the Property and Reata
Park Parcel may be utilized when a Fish and Game Code §1602 Agreement has been entered into
allowing such use. Company shall abide by all terms and conditions of such 1602 Agreement.
2.1.7.3 Damage to Riparian Resource Areas. In the instance that
the Riparian Resource Areas sustain any damage during the Management Term, Company shall
immediately notify City concerning the damage. Within five (5) days following Company's
delivery of said notice of damage to City, Company and City shall meet and confer for purposes of
discussing the damage and addressing restoration of the damagegs areas. lif the damage is caused
by, or otherwise the result of, the actions-whether of commission or omission--of Company or any
other person entering onto the Riding Park Parcel pursuant to, or under color of, this Agreement,
Company, at its sole cost and expense, shall be responsible for (i) preparing a restoration plan that
addresses and provides for timely and complete remediation of the damage, (ii) submitting the
restoration plan to City for review and approval, (iii) modifying the restoration plan in accordance
with any comments or directions received from City, and (iv) performing all restoration work in
accordance with the restoration plan approved by City. All restoration work shall be subject to
oversight by City and shall be performed in accordance with time frames and methods approved by
City.
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2.1. 7.4 Material Breach . In addition to any other rights of City to
terminate this Agreement, any failure of Company to strictly adhere to the obligations set forth in this
Section 2.1.7.4 shall be deemed a material breach of this Agreement and City may, in its sole and
absolute discretion, immediately terminate this Agreement upon delivery of notice to Company.
Notwithstanding any such termination of this Agreement, Company shall remain obligated (i) for all
costs and expenses associated with remediating any damage to the Riparian Resource Areas caused
by Company (or any other person entering onto the Riding Park Parcel pursuant to, or under color, of
this Agreement), and (ii) for satisfying all other obligations of Company that survive termination of
this Agreement.
2.1.8 Approvals; Compliance. Company, in performing the Riding Park
Management Services, shall be required to, at its sole cost and expense, do the following:
(a) Maintain all necessary licenses and/or permits from all appropriate
public or governmental agencies with jurisdiction and provide copies of same to City upon any
request therefor;
(b) Comply with each and every federal , state, or local law (including the
City's Municipal Code), regulation, standard, decision of court, ordinance, rule, code, order, decree,
directive, guidelines, permit or permit condition, together any declaration of covenants, conditions,
and restrictions that have been recorded in any official or public records with respect to the Riding
Park Parcel or any portion thereof, each as currently existing and as amended, enacted, issued, or
adopted in the future which are-become applicable to the Riding Park Parcel;
(c) Not materially interfere with the use and enjoyment of the Riding Park
Parcel by City or any person claiming through or under City, except as may be mandated by this
Agreement;
(d) Not permit any other person or party to enter upon the Property or
Riding Park Parcel under the authority of this Agreement other than as guests or invitees, and
Company shall not authorize any person or entity to operate any commercial use and shall not grant
any sub-agreement, license, or other form of agreement relating to the Property without the prior,
express written consent of the City Manager which consent may be given or withheld in the City
Manager's sole and absolute discretion; provided, however, that notwithstanding the foregoing,
Company's vendors, concessionaires, and similar commercial uses shall be permitted on the Riding
Park Parcel in conjunction with the Permitted Uses.
(e) Cooperate with and provide City staff with information and
recommendations related to where and what types of infrastructure improvements could be
implemented to maximize the use of the Riding Park Parcel, including future restroom facilities,
water access points, irrigation system enhancements, parking strategies, and where to best site any
covered areas; and
I ~f) lfre~ested by City, assist City staffte llesl-facima!e-l:htHie¥e lef3meRl
emi-iH·te!tal-i A-ef.Gt~n grt!l'le pareel (maApowef};
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2.1.9 Signage . Company shall have the right to install signage upon the Riding
Park Parcel identifying the location of the facility and the activities/events conducted by Company
thereon as Permitted Uses; provided that (i) Company shall provide to City a written description
and/or depiction of the intended signage prior to installation, (ii) all signage shall identify the Riding
Park Parcel as the "Rancho Mission Viejo Riding Park at San Juan Capistrano," (iii) City shall be
have the right to approve/disapprove any signage proposed by Company, (iv) all costs and expenses
associated with designing, permitting, constructing, installing, and maintaining the signage shall be
borne exclusively by Company, (v) Company shall maintain all approved signage in good condition
and repair, (vi) at the conclusion of the Management Term, Company, unless otherwise directed by
City, shall remove the signage from the Riding Park Parcel, and (vii) Company shall submit sign
plans including site plan location and elevations for City's review and approval of any amendment to
the sign program for the Riding Park Parcel as exists on the Effective Date of this Agreement.
2.1.10 Rules and Regulations . Company shall comply with City's rules and
regulations for the Property ("Rules and Regulations"), a copy of the current edition of which is
attached hereto as EXHIBIT D ; provided, City shall have the right to revise and modify the Rules
and Regulations from time to time in City's sole and absolute discretion and Company shall comply
therewith upon receipt of a copy thereof
2.1.11 Company Responsible for Riding Park Parcel Operating Expenses.
Company shall be responsible for payment of all costs and expenses of whatever type or nature,
incurred with respect to or otherwise arising from Company's performance of the Riding Park Parcel
Management Services including, but not limited to: (i) all charges for heat, water, gas, electricity,
and any other utilities (and City shall not be responsible or liable for any interruption in or curtailment
of any utility service); (ii) all costs associated with preparing the Riding Park Parcel for, and holding,
the activities/events thereon that are Permitted Uses including, but not limited to, all licenses and
permits ; (iii) all taxes, fees, assessments, levies, fmes, judgments, claims, charges , costs of defense of
lawsuits, attorney fees, and expert witness fees; (iv) all employee, personnel, and labor costs
including all salaries, wages, benefits, pension contributions, health care costs, and all other such
costs; (v) costs of maintaining the Riding Park Parcel in a marmer, and at a level, necessary to insure
the ongoing use of the Riding Park Parcel during and after the Management Term for the Permitted
Uses; (vi) all marketing, advertising, publicity, and related costs to promote the activities and events
that are Permitted Uses on the Riding Park Parcel; (vii) all office management costs to operate the
Riding Park Parcel including but not limited to computers, telephone, software, and accounting and
payroll programs, (viii) the cost to repair improvements on the Riding Park Parcel; (ix) insurance
premiums; and (x) contracts necessary to operate and maintain the Riding Park Parcel (collectively,
the "Riding Park Parcel Operating Expenses"). If City should (but is under no obligation to) pay
for any of the Riding Park Parcel Operating Expenses due to Company's failure to make time
payments thereof, Company shall reimburse City within thirty (30) days of receipt of the invoice for
any such payments made by City on behalf of Company. If such payment is not received within
such thirty (30) day period, interest shall accrue on the outstanding balance due at the maximum legal
rate then in effect.
2.1.12 Riding Park Parcel Management Fee. City and Company acknowledge
and agree that in light of the purpose of this Agreement to provide equestrian, sports, and community
services to third parties, the source of gross revenue derived from operations on the Riding Park
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Parcel is fees paid by third party users. Thus, during the ooe year Management Term of this
Agreement, City shall pay Company a management fee ("Riding Park Parcel Management Fee")
based on percentage of gross revenues received by Company from the Riding Park Parcel
Management Services including but not limited to: facility rentals and other rental income, vendor
fees, stalls, RV fees, parking fees, food and beverage concessions, horse and equestrian shows, horse
events, tournaments, special events, group events, sports. events including but not limited to soccer
and lacrosse, taxable sales, nontaxable sales, proceeds of insurance covering loss of gross revenues
including but not limited to business interruption insurance or similar types of insurance, and any
amount received by Company in connection with any claim, demand, or lawsuit to replace or
augment Gross Revenues, with all gross revenues identified and recorded in accordance with
generally accepted accounting principles ("Gross Revenues"). Gross Revenues shall not include
sales taxes , excise taxes, gross receipts taxes, and other similar taxes imposed upon the sale of food,
beverages , merchandise, or services and paid to the appropriate taxing authority, whether added to or
included in the selling price. The percentage of Gross Revenues to be paid by City to Company
("City Management Fee Payment Percentage") shall be as follows:
AMOUNT OF 1U1AL GROSS l-ITY RIDING PARK PARCEL
REVENUES MANAGEMENT FEE PAYMENT
PERCENTAGE
$0.00 to and including $600,000. 66.66%
For each dollar of Gross Revenues over 90%
$600,000 to and including $850,000.
For each dollar of Gross Revenues over 9 7.5 %
$850,000 to and including $1,200,000.
For each dollar of Gross Revenues over 95%
$1,200,000.
2.1.12.1 Quarterly Payment of Riding Park Parcel Management
Fee. Within ten (10) days after the end of each quarter during the Management Term, Company
shall report the Gross Revenues for the quarter just ended to the City's Chief Financial Officer. The
City's Chief Financial Officer shall review and reasonably verify the amount reported and shall notify
Company of acceptance or rejection of the information provided . The City's Chief Financial Officer
may request additional information. If the information is rejected, Company, City Manager, and
City's Chief Financial Officer shall meet and confer in good faith to resolve any objections or
concerns. Once the information is accepted by the City's Chief Financial Officer, City shall make a
payment toward the Riding Park Parcel Management Fee by applying the above City Management
Fee Payment Percentage to the total Gross Revenues for the year to date through the end of the
reporting quarter. For illustration purposes only, if the Gross Revenues achieved during Quarter #1
were $500,000, the payment made to Company by the City after the end of Quarter #1 would be
$333,300, and if the Gross Revenues achieved during Quarter #2 were $400,000 (i .e., total Gross
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Revenues through Quarter #2 of $900,000), the payment made to Company by the City after the end
of Quarter #2 would be $340,410. At the end of Quarter #4, which corresponds to the end of the
Management Term, and notwithstanding any other term or provision in this Agreement to the
contrary, this Agreement shall remain in effect for the purpose of the fmal quarterly payment
following the end of Quarter #4 and for purposes of any necessary or required reconciliation and
accounting to "true up" the fmal payment so that the total Riding Park Management Fee for the
Management Term has been accurately determined, reconciled, and paid.
2 .1.12.2 Method of Payment of Riding Park Management Fee. In
lieu of Company transferring all Gross Revenues to the City and then receiving the quarterly Riding
Park Parcel Management Fee payments, City shall effect payment ofthe quarterly Riding Park Parcel
Management Fee amount by an offset against the Gross Revenues and Company shall pay City the
remainder by check in good and immediate funds no later than seven (7) days after receipt of
notification from the City Manager or City's Chief Financial Officer or authorized designee that the
report of Gross Revenues for the applicable calendar quarter has been accepted. Using the same
example for illustration purposes only as set forth in Section 2.1.12.1, if the Gross Revenues for
Quarter #1 are $500,000, the City's Riding Park Parcel Management Fee payment to Company
would be $333,300 and thus, pursuant to this Section 2.1.12 .2, Company shall pay the difference to
City which, in this example would be the amount of$166,700.
2.1.13 Ownership of Improvements and Personal Propertv. All
non-permanent structures and improvements on the Riding Park Parcel installed by Company
during the term of this Agreement and all fixtures, furnishings, and equipment and operating
inventory purchased by Company during the term of this Agreement shall be considered property
owned by Company and shall be removed by Company at the Termination Date unless other
arrangements are made with City.
2.1 R es to Pllrlc Paceei--C itrus-MahMena n ee bv C ame&n 'l. City keteay eaRtFBels w ith
Cempany, during tfle pertieR ef the MaRagemenl Term speeifieel aelow ami in aecorelmee wit!'!: tlie
tenf!S of this Agreemen t, lo pFt>Y'iele !:Re Reata Par k "Parce l 8 (C ilfli5 Maintef\anee)" as set ferth in ilie
Mtaeked-EXI/IBJT C ("R e at:a P1u ·l• Pftre el Citrus Mnintenu Et(!e!!). sllirting with ~e date of
oomme~l-&f:4e-NitmagemeRt--l=efm.ftRG-endiRg en the-Eiate-speei-Rt*Hil-ft-wrilteft netiee-lfem
C ily ~al eerresp end s with tke antieipated date ef OJ~f:...R.e&la Park fo r puelie tJSe foYewiag
eafflp letim1 of Ream Pat'k eenstruetion, tul:!e:1 s Cefflp&Fly 's 13re o'is ien of the Reata Park Parcel CilflJs
Maintemmee is ear lie r term iaa!eEl e)' City RS :;et forth in SectiaA 2.2.4 ("Rila ta Parle Pa rcel Citrus
Ma:interumee TeFflliAalien Da~
3.0 TERMINATION
3.1 Company's Right to Terminate Agreement. Tn addition to any other rights of
termination afforded to Company in this Agreement, Company shall have the right to terminate this
Agreement prior to the end of the Management Term upon any of the following events:
~rro;:t..U n known fiCKu enf.prop Fl:y num•.cEH..u
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(a) A material breach by City and only upon not less than thirty (30) days' prior
written notice to the City which notice shall specify the material default. Upon receipt of such
notice, City may, but shall not be obligated to, effect to remedy of such default within such thirty (30)
day period; provided, however, that such cure period shall be extended for such material defaults that
cannot reasonably be cured within such thirty (30) day period provided City has commenced such
cure within the thirty (30) day period and diligently prosecutes such cure to completion.
(b) Loss of currently available water supply to the Riding Park Parcel from
adjoining Blenheim Farms which water supply is not readily available replaceable at comparable
cost, and only upon not less than thirty (30) days' prior written notice to the City. Upon receipt of
such notice, City may, but shall not be obligated to, remedy the loss of water supply within such thirty
(30) day period, which may include providing water to the Riding Park Parcel from another source, in
which case the Parties agree to meet and confer in good faith to adjust the Riding Park Parcel
Management Fee to address any increased costs associated with an alternative water supply.
(c) Loss of Company facilities located on the Riding Park Parcel due to
environmental or other property constraints including but not limited to natural disasters, and only
upon not less than thirty (30) days' prior written notice to the City of Company decision to terminate
specifying the environmental or other property constraint. Upon receipt of such notice, City may,
but shall not be obligated to, effect to remedy of the environmental or other property constraint within
such thirty (30) day period, in which case the Parties agree to meet and confer in good faith to adjust
the Riding Park Parcel Management Fee to address any increased costs associated with City's
remedy.
3.2 City's Right to Terminate Agreement. In addition to any other rights of
termination afforded to City in this Agreement, City shall have the right to terminate this Agreement
prior to the end of the Management Term upon any of the following events:
(a) A material breach by Company and only upon not less than thirty (30) days'
prior written notice to the Company which notice shall specifY the material default. Upon receipt of
such notice, Company may, but shall not be obligated to, effect to remedy of such default within such
thirty (30) day period; provided, however, that such cure period shall be extended for such material
defaults that cannot reasonably be cured within such thirty (30) day period provided City has
commenced such cure within the thirty (30) day period and diligently prosecutes such cure to
completion. Failure to timely take corrective action as provided in Section 6.1 shall constitute a
material breach.
(b) The insolvency of Company or if Company is adjudicated a bankrupt or
Company institutes any proceedings under any law relating to bankruptcy wherein Company seeks to
be adjudicated a bankrupt or to be discharged of its debts or to effect a plan of reorganization, or the
filing of an involuntary petition by any of Company's creditors seeking the rehabilitation, liquidation,
or reorganization of Company under any law related to bankruptcy, insolvency, or other relief of
debtors, and, in the case of involuntary actions, the failure to remove or discharge the same within
· sixty (60) days of such filing.
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(c) City and Company acknowledge and agree that the Property was acquired
with the proceeds of tax-exempt bonds and this Agreement is required to be compliant with
applicable provision of the Internal Revenue Code and implementation IRS Regulations, including
but not limited to Revenue Procedure 97-13. If, and upon, City's receipt of a determination from a
qualified bond counsel, the Trustee for such bonds, the Internal Revenue Service, or other qualified
person or entity, that this Agreement is not a compliant management agreemen ts , City shall have the
unqualified and unilateral right to terminate this Agreement prior to the end of the Management Term
upon thirty (30) days prior written notice to Company. City shall incur no liability due to such
termination except that upon such termination, City shall be obligated to pay Company the Riding
Park Parcel Management Fee, computed as provided in this Agreement, earned by Company through
the date Company ceases performance under this Agreement pursuant to such notice of termination.
City and Company agree to meet and confer in good faith to determine such fmal payment amounts.
(d) City sells or transfers the Riding Park Parcel-and a condition of such sale or
transfer is the termination of this Agreement with respect to the applicable parcel prior to the end of
the Management Term; provided that City provides Company at least ninety (90) days prior written
notice of the termination of this Agreement (or portion thereof affecting the applicable parcel) due to
the sale or transfer, and upon such termination City shall pay Company the pro-rata amount of Riding
Park Parcel Management Fee-earned by Company to the date of termination.
(e) If all of the Riding Park Parcel (or a sufficient portion thereof so as to make
infeasible, in the City's reasonable judgment, the continued operation of the Riding Park Parcel for
the purposes for which Company is performing the Riding Park Parcel Management Services ), shall
be taken through the exercise (or by agreement in lieu of the exercise) of the power of eminent
domain, then upon the earlier of (i) the date that City shall be required to surrender possession of the
Riding Park Parcel or of that substantial portion of the Riding Park Parcel or (ii) the date when the
Riding Park Parcel is no longer open and available for operations, this Agreement with respect to the
Riding Park Parcel shall terminate and neither Party shall have any further obligation to the other
Party with respect to the applicable parcel, except with respect to liabilities accruing, or based upon
events occurring, prior to the effective date of such termination, including but not limited to payment
of the Riding Park Parcel Management Fee earned by Company to the date of such termination
~y.:te-the-cla~l-efm:in&aefl , as applicable.
(f) If the Riding Park Parcel should be destroyed or substantially damaged by
fire, flood, acts, or God, or other casualty, City, by written notice to Company within sixty (60) days
following the occurrence of such event, shall have the right to terminate this Agreement with respect
to the Riding Park Parcel-on the basis that City does not choose to rebui lgt or restore the applicable
parcel, and in such event neither Party shall have any further obligation to the other Party under this
Agreement with respect to the applicable Parcel, except with respect to liabilities accruing, or based
upon events occurring, prior to the effective date of such termination, including but not limited to
payment of the Riding Park Parcel Management Fee earned by Company to the date of such
termination.
(g) If there is a disruption in Company's operation of the Riding Park Parcel-due
to war, sabotage, riot or acts of civil disobedience, acts or omissions of governmental agencies
(except acts of governmental agencies including, but not limited to, the City taken in accordance with
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this Agreement), accidents, fires, explosions, floods , earthquakes, other acts of God, strikes, labor
disputes, shortages of materials, or any other event not within the control of Company, City, by
written notice to Company within thirty (30) days following the occurrence of such event, shall have
the right to terminate this Agreement with respect to the Riding Park Parcel, and in such event neither
Party shall have any further obligation to the other Party under this Agreement with respect to the
applicable Parcel, except with respect to liabilities accruing, or based upon events occurring, prior to
the effective date of such termination, including but not limited to payment of the Riding Park Parcel
Management Fee earned by Company to the date of such termination.
4.0 DAMAGE; LIENS
4 .1 Company to Repair Property . Company shall repair and restore any damage,
destructi ons , or casualty to any structures, improvements, fixtures and/or installations, soil, plants,
crops, fences, timber, habitat, livestock and/or any other natural resources on or about the Property
arising from Company's performance of the Riding Park Parcel Management Services -including
by any other user of the Riding Park Parcel with Company's consent. All repair and restoration
work shall be subject to (i) the preparation by Company, and approval by City, or a restoration plan
for the Riding Park Parcel and (ii) oversight by City of any restoration work completed on the Riding
Park Parcel-. The obligations of this Section shall survive termination of this Agreement.
4.2 No Liens . Company shall not permit to exist or otherwise to be enforced against the
Riding Park Parcel, or any portion thereof, any mechanics', materialmen's, contractors', or other
liens ("Liens") arising out of the acts or omissions of Company hereunder. Company hereby
indemnifies and agrees to City and any affected portion of the Riding Park Parcel-free and hannless
from all liability for any and all such Liens, together with all costs and expenses, including, but not
limited to, attorneys' fees, expert witness fees, and court costs reasonably incurred by City in
connection therewith. If any such Lien shall at any time be recorded against the Riding Park Parcel
(or any other portion of the Property) as a result of the foregoing, and Company shall fail, within
twenty (20) days after such recording, to either (i) pay and discharge the underlying claim and cause a
lien release to be recorded, or (ii) furnish to City a surety bond or other security reasonably
satisfactory to City protecting City against liability for such Lien and holding the affected property
free from the effect of such Lien, the City may, but not be obligated to, take such action or pay such
amounts as may be necessary to remove such Lien, and Licensee shall immediately pay City the
amount so expended by City, together with interest thereon at the rate often percent (10%) per annum
accruing from the date of such payment by City until paid in full by Company, or in the alternative
City may offset the amount due from one or more Riding Park Parcel Management Fee~. The
obligations of this Section shall survive termination of this Agreement.
4 .3 Company Responsible for Acts of Employees, Agents, and Invitees. Company
shall be responsible for and liable for all acts and omissions of all of Company's agents, employees,
representatives, and any other person or party entering on the Property under the authority or color of
this Agreement. In addition to any ef...indernnification by Company in favor of City in this
Agreement, Company shall indemnify, defend, and hold hannless City and all of its elected and
appointed officials, officers, directors, agents, representatives, managers, and employees from and
against all claims arising out of or related to the foregoing described acts and omissions for which
Company is responsible and liable, and including any costs and expenses, including, but not limited
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to, attorneys' fees, expert witness fees, and court costs reasonably incurred by City in connection
therewith. The obligations of this Section shall survive termination of this Agreement.
4.4 Company Responsible for Hazardous Substances and Remediation. Company
shall not use, store, or transport any hazardous substances on or onto the Property. Company shall
repair, remediate and/or restore any condition attributable to or arising from same. All such work
shall be performed in accordance with permits obtained from applicable governmental agencies.
Upon the expiration of the Management Term or earlier termination of this Agreement, Company
shall direct, and pay for, the preparation of a Phase I environmental assessment report for the
Property, and for a Phase II environmental assessment if such be required. Company shall be
responsible for all cleanup and remediation work which work shall be subject to the review and
verification of City's environmental consulting firm. The obligations of this Section shall survive
termination of this Agreement.
5.0 INDEMNIFICATION; INSURANCE; CLAIMS
5.1 Indemnification. Company shall indemnifY, defend, and hold harmless City and all
of its elected and appointed officials, officers, directors, agents, representatives, managers, and
employees, from and against all liabilities, claims, damages, losses, and expenses of any nature
whatsoever (including, but not limited to any costs or expenses for attorneys' fees, expert witness
fees, court costs, and all incidental, consequential, economic, or punitive damages) arising out of
Company's use of the Property or otherwise arising out of the acts or omissions of Company
hereunder. As a material part of the consideration for this Agreement, Company waives any and all
claims and demands against Company for any and all such injury or damages and all other claims of
any nature whatsoever. The obligations of this section shall survive termination of this Agreement.
5.2 Insurance. Company shall maintain from and after the Effective Date and through
the Termination Date comprehensive general commercial liability insurance including automobile
coverage and blanket contractual liability coverage, with respect to the Property and ingress to and
egress from the Riding Park Parcel-, the performance of the Riding Park Parcel Management
Services, including personal injury and property damages for not less than Two Million Dollars
($2,000,000) combined single limit bodily injury, death, and property liability per occurrence, or the
current limit ofliability carried, which is greater, and worker's workers' compensation insurance to
protect Company and City from any claim made or action brought by any person or entity arising out
of or related to Company's use of the Property or arising out of or connected in any way with the acts
of Company undertaken pursuant to this Agreement. Company shall provide that the policy or
policies or insurance shall be primary and shall name City as an additional insured, with the provision
that any other insurance carried by City shall...lli; noncontributing, and shall waive all rights of
subrogation. Company shall furnish City with a Certificate of Insurance and Additional Insured
Endorsement as evidence of such policy or policies. Both the Certificate of Insurance and
Additional Insured Endorsement shall name City as additional insured and contain language that
specifically states that each policy or policies of Comprehensive or General Commercial Liability
Insurance shall be primary and noncontributing with any insurance carried by City. All certificates
of insurance and endorsements shall be signed by a person authorized by the insurance company to
bind coverage on its behalf. The insurance companies providing the policies shall be qualified to do
business and in good standing in California. Neither the procuring of insurance by Company
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pursuant to this Section-, nor the delivery by Company to City of certificates of insurance and
endorsements evidencing such insurance coverages, shall be construed as a limitation of Company's
indemnity obligations as set forth in this Agreement. Company shall insure that all contractors
and/or subcontractors performing any work on the Property shall comply with the above-referenced
insurance requirements prior to entry or work upon the Riding Park Parcel.
5.3 Claims. Company shall notify City of any claims or lawsuits relating to the Riding
Park Parcel within three (3) days after Company receives notice of such claims or lawsuits. Any
legal fees paid by Company and charged as a Riding Park Parcel Operating Expense shall be for legal
services directly related to the Riding Park Parcel and shall not include any Company corporate
overhead or administrative fee or charge. The City Manager shall have the right to pre-approve any
legal counsel retained by Company to defend the City, and to approve all legal bills incurred in such
defense.
6.0 CITY REVIEW AND EVALUATION
6.1 Riding Park Parcel Operations and Maintenance Evaluation. City shall be
permitted to periodically, in its sole discretion, to evaluate Company's performance of the Riding
Park Parcel Management Services to determine conformance to the requirements of this Agreement.
In the event of any deficiency in Company's performance, City shall provide Company with a written
notice of deficiency identifying the deficient items or issues. Upon receipt, Company shall
promptly, but in no event more than five (5) days, notify City in writing of the corrective actions to be
taken and shall correct such deficiency within fifteen (15) days thereafter, or for such deficiencies
which are not reasonably capable of being corrected within such fifteen (15) day period (which shall
not include delay merely due to an unwillingness to expend money), Company shall commence the
correction within such fifteen (15) day period and shall diligently prosecute the correction to
completion. The cost of all corrective actions shall be a Riding Park Parcel Operating Expense.
6.2 City Access to Riding Park Parcel. City shall have the right !Q_enter upon the
Riding Park Parcel at any time to inspect the premises and conduct the review and evaluation
described in Section 6.1; provided, however, that City shall not (except for any public safety or health
emergencies) shall Hot disrupt Company's operations or any events or activities occurring at that time
on the Riding Park Parcel.
7.0 NOTICES
Any notices which either Party may desire to give or may be required to give to the other
Party under this Agreement must be in writing and may be given either by (a) personal service, or
(b) delivery by a reputable document delivery service, such as but not limited to, Federal Express,
which provides a receipt showing date and time of delivery, or (c) mailing in the United States
Mail, certified mail, postage prepaid, return receipt requested, addressed to the address of the party
as set forth below or at any other address as that party may later designate by notice:
If to Company (if by mail):
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Mr. R. J. BnmdesRobert Ridland
P. 0. Box 609
San Juan Capistrano, CA 92693
If to Company (if by personal delivery
or document delivery service):
If to City:
8.0 BOOKS AND RECORDS; INSPECTION
Mr. R. J. BrandesRobert Ridland
Blenheim Facility Management, LLC
28801 8Bil: JuB!l: Creek R~ad
30753 La Pata Road
San Juan Capistrano, CA 92675
City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
8.1 Books and Records. Company shall keep full and accurate books of account and
such other records as are necessary to reflect the results of the Riding Park Parcel Management
Services. All books and records of Company for the Riding Park Parcel shall be located either at
Company's offices on the Riding Park Parcel or at another location in the City disclosed in writing
to the City Manager. All accounting records shall be maintained in accordance with generally
accepted accounting principles. All such books, records, and reports shall be maintained
separately from other facilities operated by Company. Company agrees to maintain reasonable
and necessary accounting, operating, and administrative controls relating to the fmancial aspects
of the Riding Park Parcel and such controls shall provide checks and balances designed to protect
the Riding Park Parcel, Company, and City. Company shall maintain all fmancial and accounting
books and records for a period of at least four (4) years after the Termination Date of this
Agreement, and City shall have the right to inspect and audit such books and records during such
period as provided in Section 8.2 below.
8.2 Inspection. Upon seven (7) days prior written notice to Company, which notice
shall set forth the date and time that City desires to inspect Company's books and records as
pertains to this Agreement, City or its authorized agents, auditors, or representatives shall have the
right during normal business hours to review, inspect, audit, and copy the books, records, invoices,
deposit receipts, canceled checks, and other accounting and fmancial information maintained by
Company in connection with the Riding Park Parcel Management Services. All such books and
records shall be made available to City at the Riding Park Parcel unless City and Company agree
upon another location. City, at its own expense, shall have the right to retain an independent
accounting firm to audit the books and records of the Company as it pertains to this Agreement on
an armual basis.
8.3 Disclosure. City agrees to treat all books, records, financial reports, and, financial
documents, including the Gross Revenues reports provided to the City's Chief Financial Officer
pursuant to Section 2.1.12.1, as proprietary corporate financial records not subject to disclosure
under the California Public Records Act pursuant to Government Code Section 6254.15, except as
may be required to be disclosed by court order. Company and City agree that, notwithstanding
the foregoing, this Agreement and all books, records, reports, and documents provided by
Company to City under this Agreement are not subject to that certain Confidentiality Agreement
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between Company and City dated November 2, 2011. City shall notify Company within three (3)
business days of notice to City that a third party has threatened to seek or is seeking a court order to
compel disclosure of such corporate fmancial records and Company shall have the right, at its cost,
to seek a court order barring such disclosure. Company shall indemnify, defend, and hold City
harmless from any claim, action, demand, or judgment, including but not limited to City's actual
attorney fees, arising out of or related to the refusal by the City to disclose to a third party a
corporate financial record submitted by Company to City. The defense of any action seeking
disclosure of Company's corporate fmancial records shall be at Company's expense and handled,
at Company's option, either by legal counsel acceptable to the City Attorney or by the City
Attorney's Office at the rate of$375 per hour.
9.0 MISCELLANEOUS
9.1 Contract Administration. City has designated the City Manager as the
individual who is responsible for administering this Agreement on behalf of City. The City
Manager may designate a member of his or her staff to serve as the City Manager's designee to
carry out the City Manager's responsibilities in administering this Agreement. Company has
designated Melissa Brandes as the individual who is responsible for administering Lhis
Agreement on behalf of Company. Company shall notify the City Manager in writing if another
individual has replaced the foregoing designated person as the person responsible for
administering this Agreement on behalf of Company. The Parties acknowledge that except as
otherwise expressly provided herein (a) the City Manager has the authority to approve or consent
to those matters identified in this Agreement as requiring City's approval or consent and to make
all other decisions on behalf of City regarding the administration of this Agreement (except where
City Council approval is expressly required herein), and (b) Company's foregoing designated
person or such other individual designated by Company in writing to City has the authority to
approve or consent to those matters identified in this Agreement as requiring Company's approval
or consent and to make all other decisions on behalf of Company regarding the administration of
this Agreement. City's management direction to Company shall be given by the City Manager or
City Manager's authorized designee. In addition to such other authorizations granted the City
Manager in this Agreement to act on behalf of City, the City Manager shall have the authority, in the
event of a dispute involving the interpretation of the terms and provisions of this Agreement, to
reasonably interpret the terms and provisions of this Agreement on behalf of City.
9.2 Company Is Independent Contractor. Company is and shall at all times remain as
to the City a wholly independent contractor. Nothing contained in this Agreement shall be
construed to be or create a partnership or joint venture between City and its successors and assigns,
on the one part, and Company and its successors and assigns, on the other part. The personnel
performing the services under this Agreement on behalf of Company shall at all times be under
Company's exclusive direction and control. Neither City nor any of its officers, officials,
employees, or agents shall have control over the conduct of Company or any of Company's officers,
employees, or agents . Company shall not at any time or in any manner represent that it or any of its
officers, employees, or agents is in any manner officers, officials, employees, or agents of the City.
Company shall not incur or have the power to incur any debt, obligation, or liability whatever against
Company, or bind City in any manner. No City employee benefits shall be available to Company in
connection with the performance of this Agreement. Except for the Riding Park Parcel Management
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Fee -paid to Company as provided in this Agreement, City shall not pay compensation to Company
and shall not be liable for any salaries, wages, or other compensation to Company for performing
services hereunder for City. City shall not be liable for compensation or indemnification to
Company for injury or sickness arising out of perfonning services hereunder.
9.3 Contracts and Agreements . Except as provided below, contracts and agreements
entered into by Company from and after the Effective Date of this Agreement that in any manner
relates to Company's performance of the Riding Park Parcel Management Services (including
without limitation professional contracts, contracts for maintenance and repair services, pest control,
supplies, and landscaping services, and agreements for tournaments, and group functions), shall not,
with respect to the Riding Park Parcel Management Services, extend beyond the Termination Date of
this Agreement,-or if the date for performance under such contract is, with respect to the Riding Park
Parcel Management Services, after the Tennination Date of this Agreement,-then Company shall
obtain the prior written approval of the City Manager for such agreements and City agrees, upon
expiration or earlier termination of this Agreement, to assume all such agreements it has so approved.
9.4 Citv Financing. In the event City desires to obtain bond fmancing or other
fmancing or to refmance existing bond or other financing ("City Financing") which this Agreement
affects, Company agrees to amend this Agreement at any time and from time to time, if, in the
opinion of the City's legal counsel, this Agreement must be amended to comply with laws,
regulations, rules, or procedures applicable to the City Financing, and any refmancing or refunding
thereto, including but not limited to those laws , regulations, rules , and procedures applicable to or
promulgated by the Internal Revenue Service. City and Company shall meet and confer in good
faith to effect such written amendment to this Agreement as necessary to insure the Agreement is in
compliance as required by the preceding sentence, which amendment(s) shall be affixed as an
attachment to this Agreement; provided, however, that in the event City and Company disagree on
the nature or scope of the required amendment(s), either party shall have the right to terminate this
Agreement upon thirty (30) days written notice to the other party and upon such termination neither
Company nor City shall have any further rights or obligations hereunder, except with respect to
liabilities accruing, or based upon events occurring, prior to the effective date of such termination,
including but not limited to payment of the Riding Park Parcel Management Fee earned by Company
to the date of such termination.
9.5 No Assignment Without City Consent. Company shall not assign this
Agreement without the prior written consent of the City Manager which may be given or withheld
in the City Manager's sole and absolute discretion . Any assignment by Company, whether or not
requiring the prior consent of City Manager, shall not be effective unless and until Company and
such assignee execute an assignment and assumption in a form acceptable to the City Attorney. It
is understood and agreed that any consent granted by the City Manager to any such assignment by
Company shall not be deemed a waiver of any consent required under this Section as to any future
assignment. Any assignment by Company ofthis Agreement in violation of the provisions of this
Agreement shall be null and void and shall result in the tennination of this Agreement. In
addition to any other remedies available to the parties, the provisions of this Section shall be
enforceable by injunctive proceeding or by suit for specific performance.
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9.6 CompUance With Law; Licenses and Permits. Company shall comply with all
applicable laws of governmental bodies having jurisdiction with respect to the Riding Park Parcel and
Company's performance of this Agreement. Company shall, at its expense, procure and maintain all
licenses, permits, and approvals required to be obtained by it to perform the work under this
Agreement. Company hereby expressly acknowledges and agrees that City has not previously
affirmatively represented to Company, in writing or otherwise, in a call for bids or otherwise, that
any work covered by this Agreement is not a "public work," as defined in Section 1720 of the
Labor Code. Company shall indemnify, protect, defend and hold harmless the City and its elected
and appointed officials, officers, employees, agents, and representatives, with counsel reasonably
acceptable to City, from and against any and all loss, liability, damage, claim, cost, expense and/or
"increased costs" as defmed in Labor Code Section 1781, as amended from time to time, including
reasonable attorney fees, court and litigation costs, and fees of expert witnesses, which results or
arises in any way from (1) the noncompliance by Company of any applicable local, state and/or
federal law, including, without limitation, any applicable federal and/or state labor laws
(including, without limitation, if applicable, the requirement to pay state prevailing wages and hire
apprentices); (2) the implementation of Labor Code Section 1781, as the same may be amended
from time to time, or any other similar law; and/or (3) failure by Company to provide any required
disclosure or identification as required by Labor Code Section 1781, as may be amended from time
to time, or any other similar law. Company shall bear all risks of payment or non-payment of
prevailing wages under California law and/or the implementation of Labor Code Section 1781, as
the same may be amended from time to time, and/or any other similar law. "Increased costs," as
used in this Section, shall have the meaning ascribed to it in Labor Code Section 1781, as the same
may be amended from time to time. The foregoing indemnity shall survive termination of this
Agreement.
9.7 No Undue Influence. Company declares, represents, and warrants that no undue
influence or pressure was used against or in concert with any officer or employee of the City in
connection with the award, terms, or implementation of this Agreement, including any method of
coercion, confidential fmancial arrangement, or financial inducement. No officer or employee of
the City shall receive compensation, directly or indirectly, from Company, or from any officer,
employee, or agent of Company, in connection with the award of this Agreement or any work to be
conducted as a result of this Agreement.
9.8 Covenant Against Discrimination. Company covenants that, by and for itself, its
heirs, executors, assigns, and all persons claiming under or through them, that in the performance of
this Agreement there shall be no discrimination against or segregation of, any person or group of
persons on account of any impermissible classification including, but not limited to, race, color,
creed, religion, sex, marital status, sexual orientation, national origin, or ancestry.
9.9 Nonliability of City Officers and Employees. No officer, official, employee,
agent, representative, or volunteer of the City shall be personally liable to the Company, or any
successor in interest, in the event of any default or breach by the City or for any amount which may
become due to the Company or to any successor-in-interest, or for breach of any obligation of the
terms of this Agreement.
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9.10 Governing Law; Attorney Fees; Litigation Matters. The internal laws of the
State of California, without regard to principles of conflicts oflaws, shall govern the interpretation
of this Agreement. In addition to any other rights or remedies, either party may take legal action, in
law or in equity, to cure, correct or remedy any default, to recover damages for any default, to compel
specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any
other remedy consistent with the purposes of this Agreement. Notwithstanding anything in this
Agreement to the contrary, Company's monetary damages shall be limited to the Riding Park Parcel
Management Fee and in no event shall Company be entitled to economic or consequential damages
or to punitive damages. In the event of any litigation arising from or related to this Agreement, the
prevailing party shall be entitled to recover all reasonable costs incurred, including court costs,
reasonable attorney fees, expert witness fees, and other related expenses. The Superior Court of
the County of Orange shall have exclusive jurisdiction over any litigation between the parties
hereto concerning this Agreement. Service of process on City shall be made in the manner required
by law for service on a public entity. Service of process on Company shall be made in any manner
permitted by law and shall be effective whether served inside or outside of California.
9.11 Right and Remedies Cumulative; Waiver. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties
are cumulative and the exercise by either Party of one or more of such rights or remedies shall not
preclude the exercise by it, at the same or different times, of any other rights or remedies for the same
default or any other default by the other Party. No delay or omission in the exercise of any right or
remedy by a nondefaulting party on any default shall impair such right or remedy or be construed as a
waiver. A Party's consent to or approval of any act by the other Party requiring the Party's consent
or approval shall not be deemed to waive or render unnecessary the other Party's consent to or
approval of any subsequent act. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other provision of this
Agreement.
9.12 Severability. In the event that any one or more of the phrases, sentences, clauses,
paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a
valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall
not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement
which are hereby declared as severable and shall be interpreted to carry out the intent of the parties
hereunder unless the invalid provision is so material that its invalidity deprives either party of the
basic benefit of their bargain or renders this Agreement meaningless.
9.13 Interpretation. The terms of this Agreement shall be construed in accordance with
the meaning of the language used and shall not be construed for or against either party by reason of
the authorship of this Agreement or any other rule of construction which might otherwise apply.
9.14 No Relocation Rights. Company shall have no rights under this Agreement for any
relocation assistance or benefits whatsoever upon termination of this Agreement, whether by
condemnation or otherwise, and Company expressly waives any right to such relocation benefits or
assistance it may have under any applicable laws, including but not limited to California Government
Code Section 7260 et seq., the Relocation Assistance and Real Property Acquisition Guidelines set
forth at Title 25 California Code of Regulations Section 6000 et seq., the Uniform Relocation
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Assistance and Real Property Acquisition Act set forth at 41 United States Code Section 4601 et seq.
and federal regulations set forth at 49 Code of Federal Regulations Part 24 .
9 .15 Survival of Covenants. Any covenant, term, or provision of this Agreement which
in order to be effective must survive the termination of this Agreement shall survive any such
termination.
9.16 Consents. Each party agrees that it will not unreasonably withhold any consent or
approval requested by the other party pursuant to the terms of the Agreement, and that any such
consent or approval shall not be unreasonably delayed or qualified, except where such consent is
expressly stated as within the party's sole and absolute discretion.
9.17 Possessory Interest. Pursuant to California Revenue and Taxation Code Section
107.6, City hereby informs Company that this Agreement may create a possessory interest subject to
property taxation, and in such event Company may be subject to the payment of property taxes levied
on such interest. Any property taxes so levied shall be solely a liability of Company not a liability of
City .
9.18 Representations and Warranties. The persons executing this Agreement on
behalf of each of the Parties hereto represent and warrant that (i) such Party is duly organized and
existing, (ii) he or she are duly authorized to execute and deliver this Agreement on behalf of said
Party, (iii) by so executing this Agreement, such Party is formally bound to the provisions of this
Agreement, and (iv) that entering into this Agreement does not violate any provision of any other
Agreement to which said Party is bound.
9.19 Headings. The Article, Section, and Subsection headings contained in this
Agreement are for convenience and reference only and are not intended to defme, limit or describe
the scope or intent ot any provision of th1s Agreement.
9.20 Entire Agreement; Amendments. This Agreement contains the entire
understanding between the parties relating to the obligations of the parties described in this
Agreement. All prior or contemporaneous agreements, understandings, representations, and
statements, oral or written, are merged into this Agreement and shall be of no further force or
effect. This Agreement may be amended only by an instrument in writing approved by each of
the Parties hereto.
9 .21 No Third Partv Beneficiaries. No person or entity that is not a Party hereto shall
have no rights in or to this Agreement. This Agreement is strictly for the benefit of the Parties
hereto.
9 .22 Time of the Essence. Time is of the essence of this Agreement. The parties
understand that the time for performance of each obligation has been the subject of negotiation by the
parties.
9 .23 Exhibits Incorporated. All exhibits and attachments to this Agreement are
incorporated herein and made a part hereof.
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9.24 Countemarts. This Agreement may be executed in counterparts which, when all
the Parties hereto have signed this Agreement, shall constitute one and same instrument.
9.25 Effective Date. The Effective Date of this Agreement shall be the latest of the dates
set next to the signature of the Parties hereto, which date shall be inserted into the preamble of this
Agreement.
[END-SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the day and year first written above.
Date
ATTEST:
Maria Morris, CMC
City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
Hans Van Ligten
City Attorney
Date
"CITY"
CITY OF SAN JUAN CAPISTRANO
Sam Allevato, Mayor
"COMPANY"
BLENHEIM FACILITY MANAGEMENT, LLC
By: __ ~-------------------
Robert Ridland
President
[END OF SIGNATURES-EXHIBITS FOLLOW]
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RULES AND REGULATIONS
1. No keys to locks, gates, fences and/or other structures shall be made or otherwise
installed without the consent of the City of San Juan Capistrano ("City2_~) and a copy of each key to
any such lock, gate, fence, or structure which is not installed by the City shall be delivered to the City
prior to its utilization thereof
2. All gates, doors, and similar access and control points shall be closed immediately
upon passage through the same.
3. All trash and debris shall be removed from the Property.
4. Vehicle speed shall not exceed 15 miles per hour.
5. None of the following shall be permitted on the property: drugs or narcotics (except
subject to a written medical prescription therefor and which is evidenced thereon); hunting; fishing;
and firearms.
6. Transit to and from the Riding Park Parcel or use shall be limited to City delineated
roads; and no off-road travel and/or use is permitted except in accordance with the written consent or
written use agreement issued by the City.
7. No removal off anything (e.g., plants, artifacts, etc.) found or located on the Property
except in accordance with the written consent or written agreement executed by the City.
8. No storage or dumping of anything upon the Property except in accordance with the
written consent or written agreement executed by the City.
9. Amplified speakers systems shall not be utilized in any capacity before 7:00a.m. or
after 10:00 p.m. Monday through Friday or before 8:00 a.m. or after 10:00 p.m. Saturday and Sunday.
10. Any and all use is limited to "official" (and not "personal") purposes.
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