16-1206_BLENHEIM FACILITY MANAGEMENT_D24_Agenda ReportCity of San Juan Capistrano
Agenda Report
TO: Honorable Mayor and Members of the City Council
FROM : $n Siegel, City Manager
SUBMITTED BY: Charlie View, Project Manager
DATE: December 6, 2016
SUBJECT: Consideration of a First Amendment to the Riding Park
Management Agreement with Blenheim Facilities Management,
LLC
RECOMMENDAT ION :
By motion,
1 . Approve and authorize the City Manager to execute a First Amendment to the
Riding Park Management Agreement with Blenheim Facilities Management,
LLC, on a month-to-month basis, maintaining the terms and conditions of the
current Management Agreement; and,
2. Appropriate $40,000 from the Eastern Open Space Fund for consultant and
legal costs necessary to negotiate a long-term Management Agreement.
DISCUSSION/ANALYSIS :
12/6/2016
024
The current Riding Park Management Agreement ("Management Agreement") between
the City and Blenheim Facility Management, LLC ("BFM") expires on December 31,
2016. Pursuant to City Council direction, staff is working to negotiate a longer-term
agreement with BFM and ensure that the property and associated events are open and
accessible to members of the public .
Staff had initially recommended a one-year extension of the current Management
Agreement to allow adequate time to develop a longer-term agreement. However, after
additional research with bond counsel, it has been determined that a month-to-month
agreement is a preferred alternative to ensure compliance with applicable IRS
regulations and guidelines. Notwithstanding the proposed month-to-month term of the
City Council Agenda Report
December 6, 2016
Page 2 of 3
proposed agreement, the City would provide assurance that the 2017 Riding Park event
schedule is not impaired. BFM has indicated that it can continue to operate the facility
under the proposed month-to-month agreement provided that the 2017 schedule is
maintained. BFM further confirmed its desire to work closely with staff and the
consultant team to develop a long-term agreement.
Staff is in the process of working with Kosmont and Associates, a financial consulting
firm, and bond counsel from the City Attorney's Office to identify options for a long-term
arrangement that would ensure ongoing bond compliance and equestrian facility best
practices. The costs associated with these highly-specialized services are being funded
by reserves held in the Eastern Open Space Fund .
Additionally, staff and BFM will continue to work with the Parks, Recreation, Senior and
Youth Services Commission to ensure that BFM meets the conditions outlined in
Management Agreement Section 2.1 .5 (''Riding Park Parcel Events"). This section
requires BFM to develop a calendar that incorporates sporting events, including
tournaments with scheduling priority given to locally-based teams, and a minimum of six
community events such as movie nights, a pumpkin patch, winter wonderland, concerts
in the park, etc.
FISCAL IMPACT:
The proposed Management Agreement does not require the expenditure of City funds.
Rather, management fees are retained by BFM based on the amount of revenue that
has been produced by BFM's management of the property. This arrangement has
resulted in revenue to the City of approximately $230,000 for each of the past two
calendar years (2014 and 2015), after deducting the management fee due to BFM . As
mentioned above, the accumulated revenue from this arrangement will be used to fund
the costs for consultant and legal services to develop a long-term agreement.
ENVIRONMENTAL REVIEW:
In accordance with the California Environmental Quality Act (CEQA) the recommended
action is exempt from CEQA per Section 15061 (b)(3), the general rule that the CEQA
applies only to projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty that there is no possibility that the
activity in question may have a significant effect on the environment, the activity is not
subject to CEQA. Approval of the First Amendment to the Management Agreement
would not be an activity with potential to cause significant effect on the environment and
therefore is exempt from CEQA.
PRIOR CITY COUNCIL REVIEW :
• On November 4, 2014, the City Council continued consideration of a two-year
Riding Park Management Agreement to November 18, 2014.
City Council Agenda Report
December 6, 2016
Page 3 of 3
• On November 18, 2014, the City Council approved the current Management
Agreement.
• On March 1, 2016, the City Council gave direction to staff to initiate negotiations with
Blenheim (including the general terms of such negotiations); and to refer the
recreational elements of the Riding Park to the Parks, Recreation, Senior &
Youth Services Commission.
• On October 18, 2016 the City Council continued consideration of a one-year
extension of the Riding Park Management Agreement.
COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS:
None
NOTIFICATION:
Parks, Recreation, Senior and Youth Services Commission
Trails and Equestrian Commission
Blenheim Facilities Management, LLC
ATTACHMENTS:
Attachment 1 -Management Agreement with BFM
Attachment 2 -Proposed First Amendment to Management Agreement
394/02&428-00 19
6143924.9 al 1/13/14
RIDING PARK MANAGEMENT AGREEMENT
BY AND BETWEEN
CITY OF SAN JUAN CAPISTRANO
AND
BLENHEIM FACILITY MANAGEMENT, LLC
ATTACHMENT 1
RIDING PARK MANAGEMENT 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 CAPISTRA.NO, 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 sufilciency 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 e±Iective on the Effective Date set forth in the preamble, but the
tenn 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 31,2016, unless sooner terrhinated pursuant to the tenns
ofthis 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 Tennination Date.
2.0 MANAGEMENT AND OPERATIONS
2.1 . Riding Park Parcel Management by Company. City hereby contracts with
Company, during the Management Tenn, 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 pennjt and regulatory requirements of the State of
California Depa1iment 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 Exhlbits C and 0 of the Grant Deed transferring ownership of the Property to
City, a copy of which Exhibits C and D are attached hereto as EXHIBIT R (collectively, the
"Permitted Use"), and for no other pw-pose. 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 Par·k 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 prohlbit 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
Jess 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 l 51 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 toumaments, 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 aU owing 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 Tenn 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 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 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 Ripat·ian Resource Areas.
2.1. 7 .I Identification of Riparian Resource Areas. Portions .of the
Riding Park Parcel contain riparian resources that are su~ject 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, 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 ii1clude, 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 Ripaa-ian Resource Areas. In the instance that
the Riparian Resource Areas sustain any damage during the Management Term, Company shall
immediately notify City conceming 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 othetwise 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.
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
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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 perfonning 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 officiaJ .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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bebome 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.
2.1.1 0 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 up<)n receipt of a copy _thereof. ·
2.1.11 Company Responsible for Riding Park Parcel Operating xpenscs.
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 ate Permitted Uses including, but not limited to, all licenses and
pennits; (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 oth er similar taxes impos~d upon the sale of food,
beverages, merchandise, or services and paid to th e 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 Tenn, 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 ofthe information provided. The City's ChiefFinancial 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 , ifthe Gross Revenues achieved during Quarter#l
were $500,000 , the payment made to Company by the City after the end of Quarter #I 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 #l 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.
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 Terrn 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 tenninate
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
tennination afforded to City in this Agreement, City shall have the right to tenninate this Agreement
prior to the end of the Management Tenn 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 Procedme 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 tenninate this Agreement prior to the end ofthe Management Term
upon thirty (30) days prior written notice to Company. City shall incm 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 pmsuant 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 tenninatiQn 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 perfonning 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 tem1inate and ndther 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 occuni.ng, 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
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 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 ofthis Agreement.
4.2 No Lien'. 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 Ljen, and Licensee shaH immediately pay City the
amount so expended by City, together with interest thereon at the rate often percent (1 0%) 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 ofthis Agreement.
4.3 Company Res ponsible 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 ofthis 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 hrumless 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.
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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 cmTent limit
of liability carried, which is greater, and workers' compensation insurilnce 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 sh~ll 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 catTied 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 behal£ The insurance companies providing the policies shall be qualified to do business and in
good standing in Califomia. 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 andJor
subcontractors performing any work on the Propetiy 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 ANI> 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 detennine 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.
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6.2 City Acce s 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, certHied 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 (if by personal delivery
or document delivery service):
Ifto City:
8.0 BOOKS AND RECORDS; INSPECTION
Mr. Robe11 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 Bool<S 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 R.iding 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 tl.nancial 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 . Adn1inistration. 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 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 tenns and provisions of this Agreement, to
reasonably interpret the tenns 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 marmer 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 perfonnance 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 perfonnance 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 an1endment 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 tennination 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 A signment Without City CollScnt. 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 respe~t 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 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 (I) 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 Matte•·s. 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 ofany right or
remedy by a non defaulting 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.
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9 .1.3 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 whic:h might otherwise apply.
9.14 No Relocation Right . 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 Assi~iance 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 of this Agreement which
in order to be effective must survive the ternlination 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 Intere t. Pursuant to California Revenue and Taxation Code Section
I 07.6, 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 Exhibit' Incorporated. All exhibits and attaclunents to this Agreement are
incorporated herein and made a part hereof.
9.24 Couuterputs. 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.
"CITY"
u \'do\\{
Date'
APPROVED AS TO FORM:
RUT AN TUCKER, LLP
"COMPANY"
Date
lEND OF SIGNATIJRES-EXHIBITS FOLLOW]
394/028428-0019
6143924.9 -20-
.
. '
EXIUBITA
DESCRIPTION OF THE PROPERTY, THE RIDING PARK PARCEL AND THE
RIPARIAN RESOURCE AREAS
(See Attached)
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A ----~2====tact 11» • 0 >01>
Riding Park Access and Use licanse · Exhibit A
EXHIBITB
ExmBIT "C" AND "D" OF GRANT DEED TO THE PROPERTY OUTLINlNG USE
RESTRICTIONS AND PERMlTTED USES
(See Attached)
12
DBZ/21183021.2
EXHIBIT C
USE RESTRICTIONS-PARCELS 7 AND 8
(C-1 : Exhibit 4.1-3 of Ranch Plan EIR
C-2 : Section 111-H of PC Text
C-3: Section 111-J of PC Text)
(ATIACHED]
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@ .SMWO 6.-.J\1011 Gttfk~ttli Bblfon r---------~------------~~_.·--------~-------~~~~·----~--..~--------~··--·~----·----~·-·
Existing Land Uses in Planning Area 1 Exhibit 4 .1-3
The Ranch Plan 1'' = 2,000'
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,. .I. /\GI--<ICULTUI~.L\L AND <HilER I'::}W'JfiNG AND ON-fJDING USES
lhe purpose and intent of this Section is to allow for uses cornpf:ltible with the
existing agri~;ultLiral and iow intensity nature of the f"~anch Plan PC area, and
consistent with the A 1 "General Agricultural" District F~egLr!ations of Zoning Code
Section 7-9-55 . These uses include non-agricultural uses cons istent with !ht'! open
space 11<:1ture of agricultural uses. It is also intended tllat th c~se uses (agncultural
~md non-e~gricultural) may be allowed as interim uses within Ranch Plan PC
Planning Areas designated for future development.
1. Agri<:ultural U~es : The following existing, relocated and future farming and
ranching uses shall be allowed within any Planning Area, in addition to uses
allowed by the A 1 "General Agricultural" District Regulations per Zoning Code
Section 7-9-55, subject to mitigation measures identified in the Ranch Plan Finc:JI
Program E!R 589 , per the procedures described in Section 111.1-1.3 hereof:
a) Grazing (cattle , horses, sheep, rJoals, etc.).
b) Farming (citrus farming, dry farming, and row crops).
c} C<~re tak e r housing a nd related facillties in relation to on-going agricultural and
ranching operations. including the "Ranch House" residence located south of
Ortega Hig~way in Planning Area 10 and the "Horse Ranch" residence at
33101 Ortega Highway in Planning Area 4.
cl) Employee quatiers related to agricultural uses.
e) Livestocl< feeding ranches in compliance with applicable health and safety
regulations .
f) Pacldng plants for agncu!tural products .
g) Permanent facilities for sale of agricultural products grown within the Ranch
Plan PC Area.
h) Apiaries (if ·1 50 feet from a street or highway, 40 feet from any property line
::Jnd·Jnorc tt~an t.lOO feet frorrr·urrcrcccrplf!ttd\'V"eiHng-t~ -·----·---... ·n ---·
R<111ch PIM PC Program Text as Approved November B. 2004 by Ordinaucl! No . 1)4-0H
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2. t.:xisting Unes: The following existing uses shall bH c-tllowecf in C!ppropriF.Jte
locations throughout the l~anqh F'lan PC Ama, per the proee<..lure::; in Section
111.1-1.3 hereof:
a} Rancho Mission Viejo headquarters ("Oficina") at 2BS 1·1 Orteg~l Highway,
including a heliport.
b) Ladera construction offices at 288 '11-A Ortega Highway.
c) l~ancho Mission Viejo maintenance yard at 20672 Ortega Highway .
d) Ranching facilities also used periodically for recreational purposes (including
"Cow Camp" at 31471 Ortega Highway, and ;'Amantes Camp'' and "Campo
Portola'' within Planning Area ·r 0).
e) Communication transmitting, reception or relay facilities (including
AlrTouch/PacBell Wireless, Bell South, Saddlebacf< KSBR, ~~OG&E. and
SCE) and RMV Telecom antenna sites.
f) Public/private utility buildings and structures.
g) Existing infrastructure facilities including but not limited to All exisNng ranch
roads, pipelines and utilities. Of particular note. reconstruction of the San
Juan Creek crossing of roadways and utilities connecting Planning Area 3 to
01iega Highway shall be allowed in the event of storm damage .
l1) Wholesale nurseries (including Tree of Life Nursery, Color Spot Nursery, OM
Color Expres!:> Nurseries, Tru-Green Wholesale Nurseries and O'Connell
Landscaping yard).
i) Commercial stables (including Oaks/Bienheim/Rancho Mission Viejo Riding
Pari<, Oaks Corrai/J. Irvine Smith, RJO Ho1·se Ranch, St. Augustine's Training
Center and Stables .
j) Research and development testing facilities and a:tivlties (including TRW,
l\lorthrop Grumman S-pace-Technology-and Propulsion-Testing Site):·
I~} Waste disposal operations and related uses (including Solag Dispo::;al. Tierra
Verde Industries and La Pata Greenwaste).
I) Storage of recreational vehicles. campers. trailers and boats.
rn) Recycling and transfer/materials recovery facilities per Zoning Code Section
7 ·9-146.12 (including Elwes Materials Asphalt Recycling).
n) Surface mining and qut?.rrying of rock, sand. gravel, aggregate, earth, clay
and similar materials per Zoning Code Section 7-9-·J 04 (including California
Hw1ct1 Pian PC Progr<tm Text as Approved Novemtmr i!, :<004 by Orciinanc:H No 04·014 Page B'l
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l·'orti<HlCl C:ernent/CatEllina 1-l!:lctfir.: Concrete i)oulh, California SiliC<:I/OgJ!jby
Norton, Transil Mixed COtlcrGtG Company/City Con~l'ete, Ols~n J:>avingstont~,
Inc. and Sierra Soils).
o) Resource mitigation sites for the preservation or replacement of native.
ripclrian or other biological hc:1b itat, CJS approvecl by the appropriate r0gulatory
agency (~.g ., Army Corps of Engineers, US. Fish & Wildlife Service Ct~lifor ia
Department of F ish and Game and/or the County).
cl. Continuation o'f Existing Uses
·1) Agricultural <mel existing u:;es listed in Sectiono 111.1·1.'1 and III.H.2,
res pectively, may <.:ontinue in their present location(s) in perpetuity without
need for subsequent permitting O( approvaL
2) Any buildings, structures or other facilities utllizect in connection with an
established/existing use may be repaired, replaced or modified withou
obtaining new permits or approvals; provided , however, th at ar.y and all
construction activities performed in furtherance of the rep air, replacement
and/or modification of said buildings, structures and facifilies shall comply
with applicable building and safety codes.
~3) In instances where a use listed in Sections iii.H . 1 and IJLH.2 is allowed
per a Use Permit, and thai particular Use Permit is subject to a time
limitation, the Use Permit may be renewed administratively per approval of
the Director, PDS.
b . Expansion of Existing Uses
1) Agricultural Uses -Any agricLillural use fisted in Section Jll.f-1 .1 may be
expanded without the need to obtarn a prior perm i t or other approval from
the County. Notwithstanding, expansion of an agricultural use may
require the Issuance of a permit Oi other formal authoriza tion from a
IBden:ti ur stat~:..-agency prior-to commencement a: use·-crf 111e· -expanded
facility. Additionally, any construction activities performed in fLirtherance
of the expanded use shall comply with applicable building and safety
codes .
2) E:~isting Uses -Any existing use identined in Section IIJ.H.2 rnay be
expanded without the issuance of new County approvals or permits;
provided that:
(a) Any expansion shall ful!y comply with all existiny developrnGnt and
permitting standards for the particular use;
R<11 H:t1 Pli:ln PC Pmun:un Text as Approved November 6, 2004 by Ordin<~n<:e No. ()<1 .. 014 Page l.lS
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(b) /\II construction Jctivit i ~s performed in fu1 themnue of the uxpansioll are
conduct<-Jd ir1 F.lccordance with applice~ble building and s~fely 1:otk~s;
and
(c) All necessary fJermits ami/or authorizations from applieahle federcll ami
sti:lte Agencies are obtained prior to commencement or use of tile
P.xpanded facility .
G. l~elocntion of Existing Uses
'I) Agricultura l Uses -Any existing use iden tified in Section 111.!-1.1 may be
relocated within or throughout the Ranch Plan PC Area without the need
for issuance of i:'l new permit or other prior approval from the County
No twithstanding, relocation of an existing agricu ltural use may require the
issllance of a permit or other formal authorization from a state or federal
agency prior to the desired reloefltion .
2) Existing Uses -Any existing use identified in Section III .H.2 may be
refor..a!ed within or throughout the Ranch Plan PC Area, provided that:
(a) A. Site Development Permit shall be required, per Zoning Administrator
t~pproval, in accordance with the provisions of Zonin£] Code SeGtion 7-
9-150.3(d);
(b) All necessary permits and/or autho rizations from applicable federal and
state agencies shalt be obtained prior to reiocation.
rl. New Agric ultural Uses: Consistent with the provisions of Section III.H.'I,
above . new agricultural uses (as well as any authorized use~ identi ti ed within
the /\1 "General AgricultLU-al" Dis tri ct) rnay be co nd LJcted within any Planning
Area without the issuance of CJny County approvals or permits, provided that:
1) Ail new facilities, structures and buildi11gs shall c;ompiy with existing
development and design standards;
2} All' coJistructiori'actiVities periof1'ri'e d .. ln-conMctlon with tH e-e~1ab lislim ent'
of the new use(s) shall comply w ith applicable bu1lding and safely codes;
8fld
3) 1\!r necessary permits and/or authorizations from applicable federal and
state agencies shall be obta ined prior to commencement of the new use.
i':tancn Pkm PC f'mnrnrn T i:lxt ctS AJ.!provcd NovP.mlJer 8, 2004 !Jy Ordin<m(:E! No 04 -0'14
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i'he purpose w1d intent uf tl1is Temporary Uses l;~erri'1itted t;haptel oF the J'~;mch l~)lfifl
f;1C Text is to list all temporary uses t1·1at shall be allowed within C:JII Pla11nin~J ArHa!>
a11d u:><~ cntegories (with !ht~ exception of the Open Space (Sectior1 111 .1) cutenory,
unless ottl~Jrw1:>e restricted below . Selin temporary Ltses include , but are n0l lirnitec:
to:
·1 . Construction activities (including the install<1tion of construction offices <:Jnd lhe
.·)torage of equipment and materials).
?.. Construction orfict:L Tile temporary use of a construction office d11ring the
r;onstruction of a rnain bLiilding on the same site shall be permitted upon the
following conditions:
e1. A temporary construction office shall be removed or ghalt be converted to .::~
permitted use prim to the is s uance of a c;ertificate of use ancl ocr;upanc:y for
thP. main building or buildir1gs. If construction is phased over a length of time,
lhe permit may provide that certificates of use and occupancy may be issued
for completed buildings, except the last buildings to bE; completed, prior lo
removat or conversion of the temporary use .
3. Continued use of an existing building during construction. The use of an existing,
lawfully established building may continue tiuring constn.1ction or relocation ot
another building on the~ same building site, in compliance with the to llowino
rmvisions:
o Conformity wit!1 regulations . Prior to occupe:mcy of a new building, the ex isting
building will be brought mto conformity with any addition a l regulation 1·endered
applicable by the pl21cement of Clny new building on the site. Conformity will be
accomplished by removal, reconstruction, 1 e!ocation, conversion, change of
use or any combination thereof.
b . GLICJrantee of completion. The Director, PDS, shall require the landowner to
provide e guarantee. which may include a bond, to ensure full compliai1Ce with
applicable regulations upon cornpletion of the new building or sooner if, in the
opinion of the Director, PDS, work pertaining to the completion of all f<.~ci!ities
required !Jy law is not being diligently pursued.
4 . r empora1y excavati· n/ex tr~ction of co nstn 1cti on aggrega e or c onstruction
·elated mate( a! ex rraC hOJLSit C:Ji LiJe aliowed :J unng con s truc tio n gr&lmg.<md one
sic c ~:-tl"lntvli i iig ac ti viti es to p1 U111uie p m jeci cons t ru ctio n e fiiciAnCJes and limit
long -range transportation of construction aggregate and construction related
:nat ~rial subwct to all of t~1e following condit ions:
o . ~~uch temporary exc~v<'ltion/extraction use would b8 included in applic<.1ble
grading or S ite Development Perm1ts for a developme11t project ancJ
consistent wittl the Rm1ch Plail PC and Final Pwmam ElF< 5ti9.
b Expo1tation of any surplus excavatediextracted c~nstruction aqgregate o1·
construction-related materi8.1s shall be li1nited to private or pub!ic cc;nstrudion
projects with i n the boundaries of the Ranch Plan PC Area.
c . Exportation ot any surplus excavated/extracted construction aggregate or
construction related materials within the pr·oject site shall be allowed only
l<ii!lCfl 1 1 1<~n PC Program T~zt as /\pproved NoVP.InbP.r fJ, 2004 lly Ordillat1Cl!: No IJ4·fl1'f r>~:~~J~ 90
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Wilen <1Clual C0t1Sti'UCtiol1 wat1ing anci <?arthi'110Virt~j activities have
commenced ancl shall CP.ase whert it is deterrnii tee/ that construction grading
and eartlnnoving activities have terrninato:d, ~lave been ind~finitely
sutipended, or are no longer bei11g actively pursued for thB clevelof.lment
project.
5. Commercial coaches. A temporary commercial coach may be permitted subject
to npprovt:~l of a Site Development Permit in accorda!lca with Section II.C, "Site
Development Permits," and subject to the following:
a. Time limitation A Site Development F'errnit applicC:Jtion for a temporary
commercial coach may be approved for a maximum of two (2) years frorn the
date of approval.
b. Cash bond. A cash bond in the amount of five hundred dollars ($500.00) for
each commercial coach unit shall be ~osted with the DirectCJr, PDS. to
guamn tee the removal of each c;ornrnercial coach unit upon the expirtJIIon of
the Site Development Permit.
6 . Christmas tree sales ·facility. A temporary Christmas tree safes facility shall be
permitted subject to the following requirements:
{.
a. Date of opening. A Christmas tree sales faclllty shall not be open for bus i ness
duting any calendar year p1·ior to the day after Thanl~sgiving. However,
ministetial permits necessary to establish the business may be issued by
November 15.
b. Merchandise to be sold. A permittec1 Christm<Js tree sales facility shall not
engage in the sale of any merchandise not directly associated with Ch! istmas
trees and Christmas decorations.
c. I::.Jectrical permit . The applicant shall secure an electrical permit frorn tl1e
Director, PDS if the facility fs to be energized.
rL ~ernoval of facility-. The fCJcility ~all be rern 0 ved and the premises shall be
cleared of all debris and restored to the condition prior to the establishment of
the facility within fourteen (14) days afterChristrnas.
•~-Fire prevention standards . Each Christmas tree sales facility shall comply with
fire prevention standards as approved and enforced by the County Fire Chief .
.. ~--~ -· ·---
Halloween pumpkin s81es facility. A temporr:lry Hallowee11 pLimpkin sales facility
shaH be permitted subject to the following requirements:
a. Date of opening. A Hallow~en pumpl<in sales facility shall not be open for
business during any calendar year prior to October 4.
b . Merchandise to be sold. A permitted Halloween pumpkin sales facility may
not seli iterns not directly associ<:Jted with purnpl(il 1s ancl HEllloween
decorations .
c Electrical permit. The applicant shall secure an eiectr ic;al pen nit froi n H1e
Dil'f?ctor, i:JDS if the facility is to be energized.
nan;:h Pi<~n PC Proururn Text as 1\ppmvec Novembc:r 8, ~'004 by Orc!inanc<O No. 04 ·014
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d. f~c-lrnoval of facility. The facility shall be removed and the prerni~es cleared of
u/1 debris and restored to tlw condition prior to the establishment of the facilily
by November 14.
e. Fire prevention standards . The facility shall comply with 'Fire prevc"Jntiorl
st<.md<-mJs as approved and enforced by the County Fir·e Cl1ief.
Special outdoor ~Jatherings. Tl1e temporary use of property for special outdoor
gat!1erings including, but not limited to. pageants. fairs, car·nivals. rodeos and
other athletic, religious or entertainment events. Such activities are permitted.
without regard for other land use regulations to the contrary, in any open 5p8CP-
I:Jianning Area in compliance with the following provfsions:
a. Activities on property owned by or leased to the Counly and public road rights-
of-way may r·equire an encroacl1ment permit tssued by the Director, PDS.
b. Private outdoor gatherings conducted within open space areas (including
those open space areas regulated by Section 111.1) shall not be subject to the
reslrictions and requirements established in Zoning Code Section 7-9-136.11,
"Special Outdom G3therings''.
c. The temporary use rnay be permitted for a period not to exceed ten ('iO)
consecutive days_ Events recurring more than tour (41 times in a calendar year
are not r.xmsidered temporary.
d. The Director, PDS may requrre a cash bond or other guarantee for removal of
the temporary use, cleanup and restoration of the activity site within seven (7)
days of the activity conclusion.
e. Applications For permits/certificates required by :--;ubsections "a." <md ''b.''
<:1bove, shall be referred by the Director, PDS, to other affected County
8gencies as may be appropriate for review and comment.
f. Related issues including, but not limited to, police/securfty, food and water
supply, Lise of tents and canopies, sanitation facilities, medical services, noise,
signage, fire protection and traffic control shall be satisfactorily addressed as
may be required by the Director, PDS, Sheriff, Fire Chief, or Health Officer in
their administration of other County codes. Such ottler codes may require the
applicant to obtain permits such as building, electrical, llealtll and lent permits.
Farmers' Markets and off-site sale of agricultural products. f>.. temporary stand for
the-SCI!"e of S"easonal agricuitlrral· pro·docts-·not grown within the RandrPian PC
Area shaii be permitted subject to tne foHowrng requrrements:
a. Establishment of use/time limit. Prior to beginning sale of any product, the
appficant shall obtain a temporary Certificate of Use and Occupancy for land
trorn the County. The Certificate shall be good for a period time of not to
ex(:eed 90 days from date of issue.
b. Merchandise to be sold. The stand shall be lirnitE~d to the sale of agricultural
products.
c. Electrical permit The applicant shall secure an Gk~ctrical perrnit from tile
Director, PDS if the factlity is to be energized.
~am:h Pliln PC Progre1m Text as Approved t--Joven1her 13, 2004 by Orclinance No. 04"014 l"age 98
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cl. Rernuval of facility. The facility shall be removed anti tl1e pre111 1S~;s cleeuud or
Jll debris and restored lo the condition prior to trle establish1 ner1t of tr1e facility
witt1i11 fourteen (14) uays of the expiration of the time lim1L
o . Fire prevention standards. The facility shall comply with fire prevention
standards as approved and enforced by tr1e County Fire Chief.
f. Site Development Pennit. In addition to the above requirements. an approvecl
Site Development Perrnit in accordance with Section ILC, "Site Development
Permits,·· sha II be required.
Fireworl<s displays, as allowed by the Orange County Fire Authority.
Subject to the approval of the Director, PDS, a landowner may conduct such
other temporary Llses upon his properly as are consistent with the purpose and
intent of this Section.
nHnch Plan PC Prograrn Text as Approved Nove•uber 8, 2004-by Ordinance No. O'l-014 Page 99
082121183021 2
EXHIBIT D
MAXIMUM ALLOWED TRAFFIC
[ATIACHED)
Maximum Allowed Traffic
Subject to all applicable governmental laws , rules and restrictions , Seller places no restriction on
City relating to the maximum number of trips to and from the Property on weekends and the following
holidays : New Years, Memorial Day, Fourth of July, Labor Day, Thanksgiving and Christmas .
The maximum number of tr ips during the weekday P.M. peak hours from the equestrian facilities .
sports field complexes and other allowed uses on the Property shall not exceed a total of 203 trips
(combined inbound and outbound trips). The City may allocate these trips among the allowed uses in its
discretion so long as the maximum number of trips specified above is not exceeded.
For purposes of calculating the number of trips from equestrian and sports field uses, a trip
generation fa(."tor of 1 .0 P .M. peak hour trip for each permanent equestrian stall, and a factor of 20 .67
P.M. peak hour trips per sports field/soccer field shall be applied.
Explanallon o f and Guide to Appflca tion ofthe "Maximum Allowed Trame~ RfJslriction
Based on projections of future traffic associated with Planning Area 1 of the Ranch Plan, which
includes the Property, Seller's prfmary conc11rn is the trafflc to be generated during the weekday P.M.
peak hour (LJL 4:45p.m . to 5:45p.m.). For that reason, the maximum allowed traffic restriction set forth
above is keyed to the weekday P.M . peak hour. In short, the restriction requ ires the City to manage its
operations and events to ensure that trafffc generated from uses on the Property during that time p11riod
would not exceed 203 trips (c ombined inbound and outbound trips). As noted above, the City may
allocate these trips among the alfowed uses in its discretion so long as the maximum number ·ot trips
specified is not exceeded.
D82/21 183021 2
Given the nature of the uses to be conducted on the site, which are expected to be primarily a
continu~;~tlon of uses conducted on the Property over the past several years, it is not expected that the
traffic limitation would unduly restrict the City's use of the Property. For example, most oflhe horse
shows typically occur over 2 or more days and are low spectator events, with traffic to and from those
activities being spread more or less evenly over those periods. Furthermore. horse trailers do nor
generally operate during the peak hours.
It should be noted that the above~slated trip generation rate of one (1) P.M. peak hour trip per
hcxsG stall does not pertain to the temporary stalls used in conjunction with the horse shows. That rate
pertains to permanent stalls expected to be associated with the one (1) allowed commercial stable on the
Property_ Thus, for example, if there were 50 occupied horse stalls at the commercial stable, they would
be expected to generate 50 trips during the P.M. peak hour.
With regard to sports field/soccer field uses on the Property, a factor of 20.67 P.M. peak hour trips
would be applied as stated above. Thus, for example. if there were 4 sports fields/soccer fields in
operation during weekday afternoon/evening hours, a total of 83 P.M. peal< hour trips would be expected.
In summary. the cumulative trips associated with the horse shows. the permanent horse stalls
end other allowed uses such as sports field uses (see below), would be considered in determining
whether the maximum allowed traffic limitation was being complied with. Using the above examples, with
50 permanent horse stalls and 4 sports fields, a total of 133 P.M . peak hour trips would be generated,
leaving 70 P .M. peak hour trips avalfabfe for any horse shows or other events taking place at the same
time
It should be emphasi7.P.d th!lt tr(Q'5 to a!'d fmm the Property on weekend day!!: (~ Saturday and
Sunday) and the holidays described above are not restricted. Thus, it would be &xpected that major
events on the_ Property would be held on these days. In fact, given the maximum allowed traffic limitation,
any event that would result in more than 203 P.M. peak hour trips, when the traffic from that event is
added to traffic from other allowed uses on the Property, would be required to be held on the weekend,
In any event, the C1ty is required to regulate any proposed major weekend activity such that it
would not create significant adverse impacts on the circufation system and not adversely affect existing
082/21183021 .2
' ,,
1
I
and future residents in the area due to parking, dust, noise, fight and glare or other impacts. To help
reduce the potential for light and glare impacts, RMV has prohibited the us9 of parmanent lighting an the
site.
The application of normally required condltfonal use or other permit requiroments of the County
(or the City, after annexation ofth& Property), and CEQA review associated with such permitting, would
be &xpected to ad~uately regulate such evsnts and to ensure appropriate mitigation measures are
app/Jed where indicated.
082/211 63021 2
EXII1BIT C
!\IAJ:"'TEN ,\NCE PLA~ FOR PARK LANU
t\uwmat(.'d lnig:l~i(lfl $yst~m: :'vlair\lain thl' irrigatinn s::acm in ;m
OJX'rationnl cnndit i1m-.
All ~:'sll'111j; to be operationnlly insfX!t:l~d wcdd).
r\dju:;t :111 I min(.1r repair;);-; r~:quircd li)r 1 roper CII\'Crllg ·. (Minor
r~·p;lirs an: those l';tpnbl~: of bdng ~.:onduch.:d I ~ Hl~nhcint s1aff and n 1t requiring
~; !;!lli I kwH rnm"riaL~.)
t\laintain mt itrigation W<\lcr schcduk and :1djus1 as rr.:quin:d.
Fcniliralion: \lnint~iin tJ1c Citnt:; Trees in a lwnllll\' cnnditil1n.
rwic~ arm\l;llly fFdmmry and October) ilr ;;~ r~quircd. !City tn
Spra)·ing: \-·h1intain th~: '.itms Tr.:cs ill a healthy cnndi!inn.
As n::quirc~ltn maim :tin Citrus Trees lh:c i',f all pest. (City to
\\'ct:ding: M;~inwin an ac~tln:tkaHy appcnling appe;uan~::c.
Wed-dy 1)1' ~~s required w maintain area wt:.'cd frc~~-.
rrlH:k:nl Cnn1rol: !\,(ainWtll ;lr(,'3 Ire-~· o( a !I ground hurr<l\\ ing rndcnt s M
other~ \\hid1 cnuld cause hnnn tn Citrus Tree .
i\rea to be iiHJ~Ch·d ,.,·e ddy and treated as reLJ'llirL·d w ith mah.•riah
or dnic~·s tHII n.:quiring u lkcme for admini~tl.'ring pest ic:.idcs. (City t<~ provide suppli~::;l.
l'rL·~ \l;linwnaiH:c: 1\·laintain an al·stllcticat!y ~•Prx~aling. aprx-:lntncc and !c•r
the hi:~tllll o(Citrus Tn:L-s .
.-\djllst Dc;:r \kuing a.-; rcquirl'd.
\fairH;tin 1rcc wells ;ts required .
Trim a.s r.:~llltn~d all sucko.:r grn\\'th <ind fn:e ofalllkad \Vomt.
I ill~o'r C'oncrol:
\\'cdd) n:moval nt' tiua and \kbri-; {City It\ pro\ id~· \\·a~T1.:
l:<'nt;dr\l'l3 as n .. ·quin:d I.
..: ;.-;to ... ·;.-:,,., ..
: :, • ·~·J : I , •••'t l O
Tr~:: (';1rc:
W.u~r qu;irt.:d~ 11r :ts f(.'ljllin: I ("':tkr trw .. ''-t\·quircdl
\bintain tn.:~: ,,o:JI:-a~ rc rui r•d
rrint ;ls J'o,;"i.jllircd Ill Jn:1111laln an ;J...-~tll~tica!ly ;lppt•n li11!! appt•a~:mt:t.: .
Shrub Cur~::
W:1!CI' m<lllthly or as r~tluir\!J ( wmer 1rud.: rcqoiri!d).
Tr im a: rc Juin!J to mailllain an ncstht!li-cally app~••ling ~•ppc:tr<~nn·
:md free of all d~~aJ wood.
Rod~1U Control Buiklin~~:
Pro\'idc P :1 Cl)f1lr<>l ;1round all huildinBs and .truclu.rcs wilh
mal<:rials ur dC\'it:l.:",; 1101 requiring a Jiio:cn . t: t~lr administering J'l'Sticitlcs . (Cit)' l(l rw\';Jc
suppli~:s)
Cnnla~l Public \Vork" within 2·~ hom:> l(w g.rallili removaL
•• ''\ 1 '~ -•• ,
,, • 1••11 ' ·I~-
EXIItBIT 0
SECliRIT\' OBUGAT10i\S
I . l.c)ck gal~:>. fc:nccs nnd·'t1r ,11her stnJcturcs :-~1 the .:nd or each day at
tltc pnst.~d times rlw Park anJ Park fae-ilitks dose .
2. Open gates. tf:ncl:':-1 mHl/or oth~r structures e-ach momil1j; m th~.·
posted times ll'w P;1rl-; and Pal'k t~u:ilith.'1i OJ1i:n .
. ~. P1Urol the entire Park and 11n:ifb.ics twicl.' n h l \ il!ld imm~o·diatclv
n:port any cri r H~. nui ~a11 ·~.·or me-dical em erge ncy to tl1~· appm1~ri :uc 'authc)ritic-;. and
rr.:)'lt'n any code' inhui o ns pfl)mptl y tn th~ 'ily .
1 •• , • I •• J l I . ·15·
EXJIJHIT E
I. Nfl k~ys 10 lock)<O. g:lii!S, ii.·nccs and.:or oth .. .'r Slflll;tur~·~ shall ne
mad\.· m ')thcr" j:-;,. in:->tal h:u witluHII the ~l)llScnt of th\• City ot', 'an .fu;u1 Capistrano
I"City'' t: nnd :tc\ pr t )f l.'al'h k-.:y tn any ·uch In~.·~. gah:. 11.-nc\:' M stru~lmc which is nol
in-;tillkd b~ tlw City sh;11! h.,; .h:li' 'fl'U 11 the City pd<lr tn th~ utili7~1lion thcrt11C
1 All gates. dOOJ); and similitr acc..:~s and COI\Irol points shall OC
ch.;cd immN!btcly upon p;1ssag~.· through 1lw s;srne.
•L V'-'hick speed $h~•llnot e~.:ccd 15 miks p~r hnur.
5. Knnc: t11' th • f()JIO\ving . hall he pcrndl!l.:d on th e property: drug!> (•r
narcotics (c:-:·~:~pt sub_jc 1 It a" illcn m~.:dkal prescription th~rt•f,1r nnd which is
t•vidcnc\.' I tbc:.n:.oll ): hunt in~;: lishing : and J1r,:arm~.
6. l'ransit tn and !'rom the Ridinl! P:trk l);ut.:d or U!i~ shall b\.' liniitL·d
10 Cit) ddi11eateJ r11ads; ~111d 0() ofT-road lravt:l anJ.';;r u~ is pennillcd except in
;Jl"enrd:H~<.:c wirh du: wJillcn wnsen! or \\ riHc-n usc agr''L'nl>:lll is~u'l:d by th~· City
7. t\o n.'ll1P' al <ll. anything ll.'.f!. plane~. :trti facts. l'C~:, l li)tmd or
hll'att.:d upon the Prop~rty ~·.x~.:cpl in an:ordmlC"-' \\ilh thl~ \\rittcn cn!lscnt or written
a!!r~.;cmdll l~Xc ~utcd by tb~ City.
S. 1'\ n ~loragc or dumping of onythittg up<>n the Prop erty cxc~:pt in
accordm1cc witb the wri!IL'n con!;unc or written agreement executed by the ity.
••~o ;u :J.."' 1·:• •
:.ts•····, f I
9. Any ~md rllllls(~ is limit<.•d to ··offi.~ial" (and not .. pcrsm1al"l
.J (t·
394/028428-0019
6143924.9 all/13114
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.
I 0. Any and all use is limited to "official" (and not "personal") purposes.
394/028428-0019
6143924.9 al!ll3114 EXHIBIT D
FIRST AMENDMENT TO RIDING PARK MANAGEMENT AGREEMENT
This FIRST AMENDMENT TO RIDING PARK MANAGEMENT AGREEMENT ("First
Amendment") is made effective as of January 1, 2017 ("Effective Date"), by and between the CITY OF
SAN JUAN CAPISTRANO, a California municipal corporation ("City") and BLENHEIM FACILITY
MANAGEMENT, LLC, a Delaware limited liability company ("Company"); with City and Company
referred to in this First Amendment individually as a "Party" and collectively as "Parties".
Recitals
A. City and Company are parties to that certain Riding Park Management Agreement dated
as of November 18, 2014 ("Management Agreement"), which governs the management and
maintenance of the Riding Park Parcel as defined in the Management Agreement.
B. The Management Agreement expires on December 31, 2016.
C. The Parties desire to amend the term of the Management Agreement.
Operative Provisions
NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated in and
made a part of this First Amendment by this reference, and in consideration of the terms and conditions
contained in this First Amendment, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereby mutually agree as follows:
1. Amendments.
(a) Term. Paragraph 1.1 of the Management Agreement 1s amended as
restated as follows:
"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 January 1, 2017, and terminating thirty
days thereafter ("Termination Date"). Unless one or both of the Parties provides written
notice, at least ten (I 0) days prior to the Termination Date, the term of this Agreement
(and each subsequent thirty (30) day term) shall be automatically extended by another
thirty (30) days."
(b) 2017 Riding Park Event Schedule. In consideration of the foregoing
amendment to the Management Agreement, the Parties agree that events included in the 2017
Riding Park Event Schedule of which events Company notifies City in writing prior to any
termination of this Agreement shall not be impacted or impaired by the foregoing amendment or
any termination of the Management Agreement. The Riding Park Parcel shall continue to
operate and be maintained as a premier location for major international shows through the 2017
show season, regardless of any earlier termination or modification of the Management
Agreement.
6114 7.20011\29394062.4
11/30/16
Page 1 of3
ATTACHMENT 2
2. Miscellaneous Provisions.
2.1 Entire Agreement. This First Amendment together with the Management Agreement
contains the entire agreement of the Parties with respect to the subject matter hereof and the transactions
contemplated hereby, and, by this reference, this First Amendment is made a part of and incorporated in
the Lease.
2.2 Counterparts. This First Amendment may be executed in any number of identical
counterparts which, when fully executed by all of the Parties, shall constitute an original and all of which
together shall be deemed to be one and the same instrument.
2.3 Affirmation. Except as otherwise provided in this First Amendment, the terms and
conditions of the Management Agreement are hereby ratified and confirmed and shall remain in full force
and effect.
2.4 Construction.
(a) City and Company have contributed substantially and materially to the
preparation of this First Amendment, and City and Company each acknowledge and waive any claim
contesting the existence and the adequacy of the consideration given by the other in entering into this
First Amendment.
(b) This First Amendment modifies, amends, and supplements the terms of the
Management Agreement and, to the extent of any conflict between the terms of this First Amendment and
the terms of the Management Agreement, the terms of this First Amendment shall control.
(c) Each undefined capitalized term used in this First Amendment shall have the
meaning ascribed thereto in the Management Agreement.
(d) Each Party represents and warrants to the other Party that: it is represented by
legal counsel of its choice; it has consulted with counsel regarding this First Amendment; it is fully aware
of the terms contained in First Amendment; and it has voluntarily and without coercion or duress of any
kind entered into this First Amendment.
61147.20011\29394062.4
11/30/16
(signature page to follow)
Page 2 of3
IN WITNESS WHEREOF, the Parties have executed this First Amendment to be effective as of
the Effective Date.
San Juan Capistrano, a California municipal
corporation
By:
Ben Siegel
City Manager
Date: 2016
ATTEST:
Maria Morris, CMC, City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
Jeff Ballinger, City Attorney
61147.20011\29394062.4
11/30/16
"Company"
BLENHEIM FACILITY MANAGEMENT, LLC ,
a Delaware limited liability company
By:
Name:
Its:
Date: 2016
Page 1 of3