Loading...
14-1216_VICTORY SPORTS_Site License and Use AgreementSITE LICENSE AND USE AGREEMENT This License Agreement ("License") is made this 16th day of December 2014, ("Effective Date"), by and between the City of San ,Juan Capistrano "City", and Victory Sports ("Operator"). RECITALS: WHEREAS, in 2011, the City entered into a ,Joint Facility Use Agreement with the Capistrano Unified School District (CUSD) for the use of the Multipurpose Facility, located at 3 Via Positiva, in the City of San ,Tuan Capistrano, County of Orange, State of California ("Facility"). The Facility is located on the grounds of Marco Forster Middle School and as further depicted in Exhibit "A" attached hereto and incorporated herein by reference; and, WHEREAS, the City desires to make the Facility available to the Operator to refurbish, maintain, and operate, the Facility, under the terms and conditions set forth in this Agreement; and WHEREAS, Operator is qualified by virtue of experience, training, education, and expertise to accomplish the services required under this Agreement. NOW, THEREFORE, BE IT MUTUALLY RESOLVED BETWEEN CITY AND LICENSEE AS FOLLOWS: SECTION 1. GRANT OF LICENSE City hereby grants a license to Operator to utilize the Facility at 3 Via Positiva, for the purpose of refurbishing, operating, and maintaining the Facility, which is the subject of this License and is subject to the conditions set forth in this Agreement. SECTION 2. SCOPE OF WORK The scope of work to be performed by the Operator shall consist of those tasks as set forth in Exhibit °B", attached hereto and incorporated herein by this reference. To the extent that there are any conflicts between the provisions described in Exhibit "B" and those provisions contained within this Agreement, the provisions in this Agreement shall control. SECTION 3, REFURBISHING OF THE FACILITY 3.1. The refurbishing of the Facility shall be performed in strict accordance with the upgraded list, attached as Exhibit "C." 3.2. Operator shall coordinate with CUSD and the City during the refurbishing phase so as to avoid an interruption in CUSD functions at Marco Forster Middle School. 3.3. Operator shall provide a schedule of refurbishing activity which shall be reviewed and approved by the City and CUSD prior to the commencement of the work. 3.4_ All approved permitted upgrades to the Facility will be deemed as part of the Facility and shall remain part of the facility when the Operator vacates the premises, all without any cost to the City. 3.5. Operator shall be solely responsible for providing all utilities to the Facility. SECTION 4. FACILITY PROGRAMS IMPLEMENTATION AND REVIEW 4.1. When the Facility becomes operational, Operator shall develop and provide to the public a program which involves competitive sports leagues for youth and adults, as well as clinics, tournaments and public and private rentals for community use (which may include birthday parties, corporate events, and other social gatherings), 4.2. The program shall be submitted to the City in writing for approval prior to its implementation. 4.3. The program shall be periodically reviewed at the City's discretion to ensure that the program is not causing an undue nuisance, including, but not limited to, noise impacts, excessive parking demands, or other public health and safety issues. 4.4. In the event that the City determines at its discretion that health and safety problems do exist, Operator agrees to make reasonable changes as needed pursuant to the City's direction. SECTION 5. TERM The term of this Agreement shall be four (4) years eleven months shall expire on November 15, 2019. Operator shall have the right to exercise an option to renew the Agreement by giving written notice of renewal to the City not later than July 1, 2019. SECTION 6. LICENSE FEE 6.1 Amount.. The refurbishment of the Facility and development of appropriate programs may restrict the Operator's ability to reestablish the Facility and operations may be delayed. The City agrees to lessen the financial burden on the Operator for a twelve (12) month period with no fee for the first month of December 2014 during the set up time; therefore, beginning January 15, 2015, through December 15, 2015, Operator shall pay a reduced rate of $500.00 per month, and the percentage of gross revenue will not be charged per month, on or before the fifteenth (15th) day of each month. After the one- year period, beginning December 15, 2015 through November 15, 2019, Operator shall 2 pay a rate of $1,000.00 per month on or before the fifteenth (15t), plus a 10% profit of the gross revenue per month on or before the fifteenth (15th) day of each month. Operator shall make payment payable to the City on or before the fifteenth (15th) day of each month. The check shall be made payable to the City of San Juan Capistrano. The monthly payment shall be submitted directly to the Community Services Department, located at the Community Center, 25925 Camino del Avion, San Juan Capistrano, CA 92675. Monthly payments are deemed late if not received within ten (10) calendar days thereafter. Operator shall remit payment to the City, meet with staff, and provide financial documentation of all revenues as well as rosters for all participants each month. 6,3. All costs for services provided under this Agreement shall be incurred by Operator with no financial obligation or reimbursement of costs from the City or the CUSD. �4i�lllfem 1.11PIRWRITE, Notwithstanding the rights granted to Operator under this Agreement, the parties agree that the CUSD shall have the exclusive right to control, coordinate, and/or schedule all use of the Facility during regular school hours pursuant to the Joint Facility Use Agreement, as more specifically defined in Section 8. below. Operator hereby acknowledges receipt of a copy of the 2011 Joint Use Agreement. City, Operator and CUSD shall mutually work together to coordinate use of the Facility by CUSD and Operator. Operator shall be responsible for the supervision and management of the Facility pursuant to this Agreement. Operator shall perform all operations in a competent manner, consistent with the standards of the industry and in accordance with all applicable Federal, State and local regulations, including the City's Municipal Code. Operator shall obtain, at its sole cost and expense, all governmental permits and authorizations of whatever nature required by any governmental agencies having jurisdiction over Operator's use of the Facility. The hours of operation are within the hours of 4.00 p.m. to 9:30 p.m., Monday through Friday, 8:00 a.m. to 9:30 p.m. on Saturdays, and 9:00 a.m. to 9:30 p.m. on Sundays, and subject to the hours for which the CUSD has exclusive use of the Facility. 3 8.3 Exclusive Use by School District. CUSD shall have exclusive use of the Facility during normal school hours for Marco Forster Middle School, from 8:00 a.m. to 3:30 p.m., Monday through Friday, for each day that school is in session, including the lunch hour. CUSD may extend the scope of school hours by as much as 30 minutes before the start time of classes or after the end time of classes, or both, in order to allow sufficient time for students to arrive at or leave the school before Operator commences its use of the Facility. 8.4 Condition of Facility. Operator accepts the Facility in its present condition, "as is", upon execution of this Agreement. City makes no warranty of the suitability of the Facility for Operator's operations or other use of the Facility by Operator and expressly disclaims any warranty or representation with regard to the condition, safety, security or suitability for Operator's intended use of the Facility. The duly authorized representative of the City may enter upon the Facility and all structures and buildings thereon, or any portion thereof, at any time, and from time to time. 8.5 Maintenance of Facility. Operator shall maintain, at Operator's expense, the Facility, including all existing structures and all equipment owned and furnished by Operator, in a reasonable state of repair and working order. Operator agrees, at Operator's expense, to keep the Facility clean of trash, debris and rubbish; and to keep fences, and borders of the Premises in good condition and repair at all times, reasonable wear and tear excepted. 8.8 Liens. Operator will fully and promptly pay for all materials joined or affixed to the Facility under the authority or direction of Operator, and fully and promptly pay all persons who perform labor upon the Facility. Operator shall not allow or permit to be filed or enforced against the Facility, or any part thereof, any mechanics', material men's, contractors', or subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or construction work, or out of any other claim or demand of any kind. Operator shall pay or cause to be paid all such liens, claims or demands, including sums due with respect to stop notices, together with attorney's fees incurred by the City or CUSD with respect thereto, within ten (10) business days after notice thereof and shall indemnify, hold harmless and defend the City and CUSD from all obligations and claims made against the City or CUSD for the above described work, including attorney's fees. Operator shall furnish evidence of payment upon request of the City. Operator may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop notices to the City in compliance with applicable California law. If Operator does not discharge any mechanic's liens or stop notice for works performed for Operator, the City shall have the right to discharge same (including by paying the claimant), and the Operator 4 shall reimburse the City for the cost of such discharge within ten (10) business days after billing. The provisions of this subsection shall survive the termination of this Agreement. 8.7 Third Party Liability. The Operator shall be responsible and liable for all acts and omissions of all of Operator's contractors, agents, employees, representatives and any other person or party entering upon the Facility under the authority or color of this Agreement. 8.8 Surrender Upon Termination. The Operator shall, at the termination of this Agreement, vacate the Facility in as good condition as they are in at the time of entry thereon by the Operator, and in addition shall leave in place all fixtures or work done during the term of this Agreement to refurbish or maintain the Facility. Upon surrender, Operator shall leave the Facility free and clear of all rubbish and debris. 8.9 Taxes. Pursuant to Revenue & Taxation Code §107.7, should a property interest be created herein, it may be subject to property taxation and the Operator may be subject to property taxes levied on such interest. In no event shall the City or CUSD be liable for any taxes owed as a result of this Agreement or the Operator's use of the Facility. 8.10 No Relocation Benefits. This Agreement is not intended to convey a property interest but to permit the Operator to use the Facility as provided for herein. Operator acknowledges the rights granted by State and/or Federal Relocation Assistance Laws and regulations and, notwithstanding any other provision of this Agreement, expressly waives all such past, present and future rights, if any, to which the Operator might otherwise be entitled from the City or CUSD with regard to this Agreement and the operations on the Facility. Operator shall not be entitled to relocation assistance, relocation benefits, or compensation for loss of goodwill upon the termination of this Agreement. SECTION 9. TIME IS OF THE ESSENCE Time is of the essence in the performance of this Agreement. SECTION 10. DEFAULT 10.1. If Operator defaults in the payment of the license fee due to the City, or any additional applicable payments, or defaults in the performance of any of the other covenants or conditions hereof, the City may give Operator notice of such default and if Operator does not cure any such default within three (3) days, or such other time period 5 as specified in the notice of default, after the giving of such notice, then the City may terminate this Agreement on not less than ten (10) days' notice to Operator. On the date specified in such notice the term of this Agreement shall terminate, and Operator shall then quit and surrender the Facility to the City, but Operator shall remain liable as hereinafter provided. If this Agreement shall have been so terminated by the City, the City may at any time thereafter resume possession of the Facility by any lawful means and remove Operator or other occupants and their effects. 10.2. If the Operator breaches any covenant or condition of this Agreement, the City may, on reasonable notice to the Operator (except that no notice need be given in case of emergency), cure such breach at the expense of the Operator. The reasonable amount of all expenses, including attorney's fees, incurred by the City in so doing shall be deemed additional fees payable on demand. In the event proceedings in bankruptcy are commenced by the Operator, or the Operator is found to be in a state of insolvency, then in such event, the City shall have the right to terminate this Agreement and all further rights and obligations thereunder, by ten (10) days' notice in writing to Operator, in which event, on the expiration of the ten (10) days from mailing of the notice, this Agreement shall automatically terminate. This Agreement may be terminated for any reason by the City following thirty (30) days written notice. The City incurs no liability whatsoever for termination of this Agreement at any time. ''he Operator has been selected for its unique qualifications and experience and therefore, Operator may not assign, sublet or otherwise transfer its interest under this Agreement without the prior written consent of the City, which may be withheld in the sole and absolute discretion of the City Manager. Any attempted assignment, sublet or transfer made in violation of this provision shall be null and void, and shall be an event of default. It is agreed that Operator shall act and be an independent operator and not an agent or employee of the City. 6 SECTION 15. LIMITATIONS UPON SUBCONTRACTING The experience, knowledge, capability and reputation of Operator were a substantial inducement for the City to enter into this Agreement. Operator shall not contract with any other entity to perform the services required without written approval of the City which may be withheld in the sole and absolute discretion of the City Manager or his or her designee. If Operator is permitted to subcontract any part of this Agreement by the City, Operator shall be responsible to the City for the acts and omissions of its subcontractor as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and the City. All persons engaged in the work will be considered employees of Operator. SECTION 16. MAINTENANCE COST RECORDS Operator shall maintain all books, documents, papers, employee time facility sheet, accounting records, and other evidence pertaining to fees and revenues generated in the operations of the Facility by Operator, and shall make such records and materials available at its offices for inspection by the City at all reasonable times during the term of this Agreement and for three (3) years from the date of final payment under this Agreement. Operator shall furnish copies of all such materials to the City upon request. SECTION 17. INDEMNITY To the fullest extent permitted by law, Operator agrees to protect, defend, and hold harmless the City and its elective or appointive boards, officers, agents, and employees from any and all claims, liabilities, expenses, or damages of any nature, including attorneys' fees, for injury or death of any person, or damages of any nature, including interference with use of property, arising out of, or in any way connected with the negligence, recklessness and/or intentional wrongful conduct of Operator, Operator's agents, officers, employees, subcontractors, or independent contractors hired by Operator in the performance of the Agreement. The only exception to Operator's responsibility to protect, defend, and hold harmless the City, is due to the negligence, recklessness and/or wrongful conduct of the City, or any of its elective or appointive boards, officers, agents, or employees. This hold harmless agreement shall apply to all liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Operator. SECTION 18. INSURANCE. On or before beginning any of the work called for by any term of this Agreement or use of the Facility, Operator, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to the City, the 7 insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Operator shall not allow any subcontractor to commence work on any subcontract until all insurance required of the Operator has also been obtained for the subcontractor. Insurance required herein shall be provided by Insurers in good standing with the State of California and having a minimum Best's Guide Rating of A - Class VII or better. 18.1 Comprehensive General Liability. Throughout the term of this Agreement, Operator shall maintain in full force and effect Comprehensive General Liability coverage in an amount not less than three million dollars per occurrence ($3,000,000.00), combined single limit coverage for risks associated with the work contemplated by this agreement. If a Commercial General Liability Insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this agreement or the general aggregate limit shall be at least twice the required occurrence limit. 18.2 Comprehensive Automobile Liability. Throughout the term of this Agreement, Operator shall maintain in full force and effect Comprehensive Automobile Liability coverage, including owned, hired and non - owned vehicles in an amount not less than one million dollars per occurrence ($1,000,000.00). 18.3 Worker's Compensation. If Operator intends to employ employees to perform services under this Agreement, Operator shall obtain and maintain, during the term of this Agreement, Worker's Compensation Employer's Liability Insurance in the statutory amount as required by state law. 18.4 Proof of Insurance Requirements/Endorsement. Prior to beginning any work under this Agreement or use of the Facility, Operator shall submit the insurance certificates, including the deductible or self -retention amount, and an additional insured endorsement naming the City and CUSD, their officers, employees, agents, and volunteers as additional insured as respects each of the following: Liability arising out of activities performed by or on behalf of Operator, including the insured's general supervision of Operator; products and completed operations of Operator premises owned, occupied or used by Operator; or automobiles owned, leased, hired, or borrowed by Operator. The coverage shall contain no special limitations on the scope of protection afforded the City and CUSD, their officers, employees, agents, or volunteers. M The above policy/policies shall not terminate, nor shall they be cancelled, nor the coverage's reduced, Cantil after thirty (30) days' written notice is given to the City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. Any notice required to be given under this Agreement shall be in writing and shall be deemed to have been duly given and received if and when personally served, or forty-eight (48) hours after being deposited in the United States mail, first class, postage prepaid, addressed to the intended party at: To City: Attn- Cynthia Alexander, Community Services Director City of San Juan Capistrano 25925 Camino del Avion San Juan Capistrano, CA 92675 With a Copy To City Attorney: Attn: Mans Van Ligten, City Attorney City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 To Operator: Attn: Glen Miles Victory Sports 27126 "B" Paseo Espanda, Suite 705 San Juan Capistrano, CA 92675 If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which he may be entitled. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"), Orange County office. 9 SECTION 22. ENTIRE AGREEMENT This Agreement constitutes the entire understanding and agreement between the parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. SECTION 23. MISCELLANEOUS 23.1 This Agreement may be modified only by written instrument executed by both parties hereto. 23.2 Any failure by the City to insist upon a strict performance by the Operator of any of the terms and provisions hereof shall not be deemed to be a waiver of any of the terms and provisions hereof. 23.3 This Agreement shall be governed by the construed in accordance with the laws of the State of California. 23.4 The parties executing this Agreement warrant that they have authority to bind the respective parties thereto. [SIGNATURE PAGE FOLLOWS] 10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement. CITY OF SAN JUAN CAPISTRANO By: .......... MAYOR VICTORY SPORTS U122090"T QDff TIBM 00 KOQNLVA�� Hans Van Ligten, City Attorney " SM, A Z 4 GLEN MILES, Owner Attached Exhibits: A. Site Diagram B. Scope of Work C. Multipurpose Facility Design and Upgrade List II EXHIBIT "A" San i Capistrano, EXHIBIT "B„ CITY OF SAN JUAN CAPISTRANO COMMUNITY SERVICES DEPARTMENT MULTIPURPOSE FACILITY OPERATOR The Operator's services will require a multi -disciplinary team to maintain, operate, coordinate, and schedule public use for the Multipurpose Facility located on the grounds of the Marco Forster Middle School located at 3 Via Positiva in the City of San Juan Capistrano. The agreement between the Operator and the City will be a five-year term, therefore, since this a relative longstanding partnership, it is imperative for the Operator to precisely express through this RFP process its uniquely qualified team that will define policy, ability, experience, competency and accountability. OPERATION OF FACILITY A. Operator shall incur all expenses associated with managing, operating and maintaining the Multipurpose Facility at 3 Via Positiva as a public facility for conducting adult and youth sport -related activities to include league play, practices, tournaments, clinics, and open sport recreational programs. B. Operator shall provide multipurpose related activities to include league play, practices, tournaments, clinics and open sport recreational programs for youth and adults as agreed upon by Operator and City. C. Operator shall maintain the Multipurpose Facility in a clean and safe condition for the operation of athletic activities, including inspecting all surface play to insure the safety of the court. Any deficiencies are to be corrected by the Operator. D. Provide for routine maintenance of the court and surrounding area at the Operator's expense. E. Operator shall submit monthly revenue reports showing monthly gross receipts from the operation. Operator will submit monthly revenue payments to the Community Services Department. 11, MAINTENANCE OF IMPROVEMENTS AND EQUIPMENT A. Operator shall provide all maintenance (including major repair and replacement) of all equipment and structures used in the operations of their programs. City shall have the right to direct Operator to perform necessary repairs and maintenance to equipment and structures owned by the Operator or by the City. The construction of temporary or permanent buildings on the area used for the Multipurpose Facility is subject to design review and approval by City, CUSD and the Division of the State Architect. B. Operator shall staff the Multipurpose Facility with trained and competent staff on site to provide for one (1) official per game for league and tournament activities and other additional personnel, including the site manager, at all times when the Facility is in use by Operator. C. Operator shall provide trained, competent staff to manage and operate the facility in a professional and safe manner. Operator shall provide trained and competent officials for the conducting of leagues, tournaments, and other sport activities. Hockey officials shall wear a prescribed uniform, as mutually agreed, while officiating hockey/other sport activities. Hockey/other sport officials shall also be required to wear safety equipment to include helmet, and eye protection and shall sign a release form stating that they are aware of the possible hazards and release City, CUSD and Operator of all liability. D. At any time when the Multipurpose Facility is in operation by Operator, Operator shall provide for the site supervision during that time period. This supervised coverage during non -school hours includes team practices. E. Operator shall appoint a site manager under its direction and control, who shall devote the greater part of his/her time and attention to the operations permitted on the facilities and shall promote, increase, and convenience to the public. Such mangers shall have full authority for the operations under their control. In employing of managers, Operator shall seek individuals with previous multi -sport experience. F. All personnel employed by Operator having supervisory or disciplinary authority over minors shall pass a background check in compliance with California Public Resources Code § 5164. III. SCHEDULE OF OPERATIONS A. Operator will have access to the facility for operations and will have the authority to control, coordinate, and/or schedule all use of the Multipurpose Facility during non -school hours from 3:30 p.m. to 9.30 p.m. Monday through Friday, and Saturday through Sunday from 9:00 a.m. to 9:30 p.m. CUSD shall have the exclusive use of the Multipurpose Facility during school hours scheduled between 8:00 a.m. to 3:00 p.m. Scheduled use hours may be changed with CUSD school schedules and a written approval by the City. MA V. M CLEANLINESS OF THE AREA SURROUNDING THE MULTIPURPOSE FACILITY AND PARKING LOT A. Operator shall keep the area surrounding the Multipurpose Facility in a clean and sanitary condition satisfactory to City/CUSD at all times. No offensive or refuse matter, nor any substance constituting an unnecessary, unreasonable, or unlawful fire hazard or material detrimental to the public health shall be permitted or remain thereon, and Operator shall prevent any such matter of material from being or accumulating in the area. The City shall provide appropriate disposal, available at all times, to allow Operator to properly maintain the surrounding area. HEALTH AND SAFETY A. Operator shall correct safety deficiencies and violations of safety practices immediately and shall cooperate fully with the City/CUSD in the investigation of accidents occurring at the Multipurpose Facility. In the event of an injury to a patron or customer, Operator shall ensure that the injured person receives prompt and qualified medical attention and shall summit an injury report to the City within fourteen (14) days. If Operator fails to correct hazardous conditions which have led to or, in the opinion of the City, could lead to injury, City may immediately suspend and/or terminate the Agreement. PLAYER RELEASE FORMS A. Operator shall not permit any individual to participate in any activity on the Multipurpose Facility without first having completed a release form. Such release forms shall be approved by the City of San Juan Capistrano in advance. W Large Expenditures Budget Estimated I ....................._............,................. ..... ...........,.......................,..................... :,.T ........... ..........._.....:....................:........_............... ................................... ................ ....10®,000 ................................. Inspector tbd Contractor Materials tbd tbd Permits tbd Facility Improvements Bleacher (3 -15 ft 7 row bleach- ers) $18,000 Fencing $6,500 Scoreboard $2,50-0- 2,500Security SecuritySystem $2,500 Paint $3,000 Turf $60,000 Sound System $2,500 Netting $5,000 ....................._............,................. ..... ...........,.......................,..................... :,.T ........... ..........._.....:....................:........_............... ................................... ................ ....10®,000 .................................