4936-1221-3371 v2
FACILITY OPERATIONS AGREEMENT
between
THE CITY OF CHULA VISTA
a chartered municipal corporation,
as Owner
and
ELITE ATHLETE SERVICES LLC,
a California limited liability company, as Operator
FOR
THE CHULA VISTA ELITE ATHLETE TRAINING CENTER
LOCATED AT
2800 Olympic Parkway
Chula Vista, California
DATED: As of ____________, 2025
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TABLE OF CONTENTS
Page
Article 1 Definitions; Terminology; Exhibits .........................................................................6
1.1. Definitions................................................................................................................6
1.2. Terminology ........................................................................................................... 11
1.3. Exhibits ..................................................................................................................12 Article 2 Operation of Property Generally ............................................................................12
2.1. Engagement; Duties and Scope of Authority of Operator .....................................12
2.2. Additional Rights of Operator ...............................................................................14
2.3. Operator’s Responsibility for Operating Expenses and Reserves. ........................15
2.4. Operator’s Responsibility for Owner Reimbursement ..........................................16
2.5. Limitations on Operator’s Authority ......................................................................16
2.6. Emergency Actions and Expenditures ...................................................................17
2.7. Loss Recovery ........................................................................................................17
2.8. Owner Operated Property ......................................................................................17
2.9. Compliance with Core Agreement .........................................................................17 Article 3 Term .......................................................................................................................17
3.1. Term .......................................................................................................................17
3.2. Operator's Early Termination Rights.................................................................18 Article 4 Master Plan Development .....................................................................................18 Article 5 Annual Business Plan: Expenditures ....................................................................18
5.1. Draft Annual Business Plan ...................................................................................18
5.2. Owner Review of Annual Business Plan ...............................................................18 Article 6 Property Employees ...............................................................................................19
6.1. In General...............................................................................................................19
6.2. Key Positions .........................................................................................................19
6.3. Owner Coordinator/Liaison ...................................................................................19 Article 7 Operator Fees; Allocation of Net Operating Revenues ..........................................19
7.1. Operator Fee...........................................................................................................19 Article 8 Repairs and Maintenance; Capital Improvements .................................................20
8.1. Repairs and Maintenance .......................................................................................20
8.2. Capital Improvements and Major Repairs. ............................................................21
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8.3. Financing of Capital Improvements.......................................................................22 Article 9 Operating Account .................................................................................................22
9.1. Generally ................................................................................................................22
9.2. Direction of Payments to Operating Account ........ Error! Bookmark not defined.
Article 10 Books Records and Financial Reporting................................................................22
10.1. Books and Records ................................................................................................22
10.2. Financial Reports ...................................................................................................22
10.3. Owner Audits .........................................................................................................22
10.4. Confidential Information .......................................................................................23 Article 11 Insurance ................................................................................................................23
11.1. Maintenance of Insurance Coverage ......................................................................23 Article 12 Condemnation ........................................................................................................24
12.1. Condemnation ........................................................................................................24 Article 13 Termination ............................................................................................................24
13.1. Termination by Owner ...........................................................................................24
13.2. Termination by Operator ........................................................................................24 Article 14 Rights and Obligations Following Termination .....................................................24
14.1. Rights and Obligations Following Termination .....................................................24
14.2. Survival ..................................................................................................................25 Article 15 Events of Default ...................................................................................................25
15.1. Operator Defaults ...................................................................................................25
15.2. Owner Defaults ......................................................................................................26
15.3. Termination Upon Event of Default; Other Remedies ..........................................27
15.4. Unavoidable Interruption .......................................................................................27 Article 16 Notices ...................................................................................................................27 Article 17 Assignment ............................................................................................................28
17.1. Limitation on Assignment ......................................................................................28 Article 18 Indemnity ...............................................................................................................28
18.1. By Operator ............................................................................................................28
18.2. By Owner ...............................................................................................................28
18.3. Additional Indemnity Provisions ...........................................................................29
18.4. Survival ..................................................................................................................30 Article 19 Representations and Warranties .............................................................................31
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19.1. Representations and Warranties of Operator..........................................................31
19.2. Representations and Warranties of Owner .............................................................31
19.3. No Representation or Warranty Regarding Success; AS-IS ..................................32 Article 20 Covenants and Additional Rights and Obligations ................................................32
20.1. Owner Covenants ...................................................................................................32
20.2. Owner Reservation of Access/Events ....................................................................32
20.3. Security for Performance .......................................................................................33
20.4. Naming Rights .......................................................................................................33
20.5. Additional Training Site Designations ...................................................................33 Article 21 Dispute Resolution .................................................................................................33
21.1. General ...................................................................................................................33
21.2. First Level ..............................................................................................................33
21.3. Second Level ..........................................................................................................34
21.4. Third Level.............................................................................................................34 Article 22 Miscellaneous ........................................................................................................34
22.1. Limitation of Remedies..........................................................................................34
22.2. Relationship of the Parties .....................................................................................35
22.3. Entry and Inspection ..............................................................................................35
22.4. Further Assurances .................................................................................................35
22.5. CPRA .....................................................................................................................35
22.6. Joint and Several Liability .....................................................................................35
22.7. Taxes ......................................................................................................................35
22.8. Utilities ...................................................................................................................35
22.9. Waiver ....................................................................................................................35
22.10. Successors and Assigns ..........................................................................................36
22.11. Governing Law ......................................................................................................36
22.12. Amendments ..........................................................................................................36
22.13. Partial Invalidity.....................................................................................................36
22.14. Entire Agreement ...................................................................................................36
22.15. Time is of the Essence: Time Periods ....................................................................36
22.16. Interpretation ..........................................................................................................36
22.17. Counterparts; Electronic Execution and Delivery .................................................36
22.18. Attorney’s Fees and Litigation Expenses ...............................................................36
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FACILITY OPERATIONS AGREEMENT
Chula Vista Elite Athlete Training Center
This FACILITY OPERATIONS AGREEMENT (the “Agreement”) is made as of ____________, 2025 (“Effective Date”) by and between THE CITY OF CHULA VISTA, a chartered municipal corporation (“Owner”), and ELITE ATHLETE SERVICES LLC, a California limited liability company (“Operator”).
RECITALS:
A. Owner owns that certain real property and improvements located at 2800 Olympic Parkway, City of Chula Vista, California as more particularly described in the attached Exhibit A (the “Property”) and the Facilities (as defined below). The Property operates as an elite athlete training facility known as the “Chula Vista Elite Athlete Training Center.” As used in this Agreement, and as is further defined below, the term “Facility” or “CV EATC” shall refer to the Property, the Chula Vista Elite Athlete Training Center and all the improvements and facilities on the Property, now existing or built during the Term; and B. Owner and Operator previously entered into that c ertain Facilities Operations Agreement dated as of April 21, 2016 (as amended, the “Original Agreement”) pursuant to which Owner engaged Operator as the exclusive manager of the Facility. The term of the Original Agreement had an expiration date of December 31, 2024 and has been extended for a short period of time to accommodate drafting this Agreement.
C. Owner and Operator desire to enter into this new Agreement for the purpose of to provide for the terms and conditions pursuant to which Operator will manage the Facility. The intent of this Agreement is to memorialize the understanding of the Parties regarding the operation, use and management of the CV EATC as a premier training destination for athletes and related events for the benefit of the community.
D. Owner and Operator desire and intend that this Agreement will enable and facilitate the continued operation of the Facility and that revenue derived by the operations of the Facility will be sufficient, and will be utilized, for the ongoing maintenance, improvements, repairs, and operation of the Facility in a manner that does not negatively impact or create a financial burden on the Owner’s general fund and provides the opportunity for the operator to earn a reasonable return.
D. Owner and Operator desire to enter into this Agreement relating to the management and operation of the Property and the Facilities by Operator as the Chula Vista Elite Athle te Training Center.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, and for other good and valuable consideration, Owner and Operator agree as follows:
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Article 1
Definitions; Terminology; Exhibits
1.1. Definitions. In this Agreement, the following terms have the following meanings:
“Accounting Period ” means each quarter during each Fiscal Year (or partial quarter with respect to the first and last calendar month included in the Term, if the same are not full quarters).
“Accounting Period Report” is defined in Exhibit B.
“Affiliate” of a person means any person which, directly or indirectly, Controls, is Controlled by or is under common Control with, such person. “Annual Business Plan ” means the business plan for the Oper ation of the CVEATC by Operator pursuant to the requirements of this Agreement for a Fiscal Year as is further defined in Article 5.
“Annual Capital Budget ” means the budget setting forth the projected expenditures for Capital Improvements and FF&E for a Fiscal Year. “Annual Operating Budget ” means the projected operating budget for a Fiscal Year. The Annual Operating Budget shall include Operator’s reasonable estimates of the items of Gross Operating Revenues and Operating Expenses for the applicable Fiscal Year. “Annual Report” is defined in Exhibit B.
“Arbitrator” is defined in Exhibit E.
“Capital Events Revenues ” means proceeds from the financing, sale or other disposition of the Property or the Facilities or any portion thereof. “Capital Improvements” means replacements, substitutions, alterations, additions or improvements (exclusive of FF&E) in or to the Facilities deemed by Operator and Owner to be necessary to comply with the Operating Standard or otherwise deemed by the parties to be desirable and appropriate.
“Chula Vista Elite Athlete Training Center ” or “CVEATC” each means the Property, the Facilities and the FF&E, other than the Owner Operated Property. “CI Naming Rights Revenues ” means all revenues derived from any and all agreements pursuant to which any naming rights in connection with the CV EATC are granted to third parties in exchange for donations to be dedicated to fund the construction of new Capital Improvements or to the enhancements of Existing Capital Improvements.
“City Council” means the City Council of the City of Chula Vista.
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“City Manager ” means the City Manager of the City of Chula Vista , or their designee.
“Control” or “Controlling” means, with respect to any person, the possession, directly or indirectly, of the power to dir ect or cause the direction of the management or policies of such person, or the power to veto major policy decisions of such person. “Core Agreement” means the Core Agreement dated effective as of March 31, 2016 by and between Owner and USOPC, attached hereto as Exhibit G. “Demand” is defined in Exhibit E.
“Dispute Notice” is defined in Section 21.1.
“Draft Annual Business Plan” is defined in Section 5.1. “Easton” means Easton Sports Development Foundation, a California nonprofit public benefit corporation.
“Easton Agreement” means the License, Lease and Operations Agreement dated June 13, 2012 by and between Easton and USOC, as amended. “Effective Date” means the date set forth in the Preamble of this Agreement. “Emergency” means the occurrence of any circu mstance which Operator reasonably judges to be an emergency threatening the safety of persons or property at or near the Property.
“Environmental Law ” means any and all laws, ordinances, statutes, and regulations relating to the Property or the Facilities now or hereafter in effect relating to environmental pollution, Releases or threatened Releases of Hazardous Materials or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials.
“Event of Default ” means any of the events described in Article 1 5, once any condition contained therein for the giving of notice or the lapse of time, or both, has been satisfied and any cure period has elapsed without the event having been cured. “Existing Retail Store” means any retail store that is operated on that portion of the Property currently operated as a retail store.
“Extension Option” is defined in Section 3.1.
“Facilities” means all the improvements and facilities on the Property, now existing or built during the Term, which includes, without limitation, all those facilities dedicated to the training of elite athletes.
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“Fiscal Year” means the fiscal year which begins on January 1 and ends on December 31, except the first Fiscal Ye ar is the period commencing on the Transfer Date and ending on December 31 of the calendar year in which the Transfer Date occurs, and the last Fiscal Year will end on the termination of this Agreement.
“Force Majeure Events ” means fire, ea rthquake, extreme weather conditions or other acts of God, acts of public enemies, riot, insurrection, terrorism, or other unforeseen non - economic causes beyond the reasonable control of the Party seeking relief from the performance of an obligation based on the occurrence of such event. “Furniture, Fixtures and Equipment ” or “FF&E” means all furniture, furnishings, fixtures, decorations, and equipment and systems located at, or used in connection with, the operation of the CVEATC.
“GAAP” shall mean generally accepte d accounting principles set forth in the opinions, statement and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and of the Financial Accounting Standards Board, consistently applied.
“Governmental Authority ” means any federal, state, or local governmental authority having jurisdiction over the Property or the Facilities, including any agency, department, board, commission, and other component thereof.
“Gross Operating Revenues” shall mean all inc ome collected and derived from the operation of the Facility from any source whatsoever, including, without limitation, (a) all payments made by any party for housing at the Facility, meals and/or facility use, (b) all rents and other charges due under all leases of any portion of the Facility, (c) all income generated from any and all retail operations at the Facility, and (d) all Naming Rights Revenues, except to the extent such revenues are dedicated by donors to fund the construction of Capital Improvements (in which case such revenues will be used for such purpose and not counted in the calculation of Gross Operating Revenues). Notwithstanding the foregoing, Gross Operating Revenues do not include the Capital Event Revenues.
“Hazardous Materials” means all chemicals, pollutants, contaminants, wastes and toxic substances, including: (a) solid or hazardous waste, hazardous substances, toxic substances, as defined in any Environmental Law, (b) gasoline or any other petroleum product or byproduct, polychlorinated biphenyls, asbestos and urea formaldehyde, (c) asbestos or asbestos containing materials; (d) urea formaldehyde foam insulation, and (e) radon gas. “Impositions” means all real estate and personal property taxes, levies and assessments of any Governmental Authority on the Property or the Facilities. “Initial Term” is defined in Section 3.1.
“Legal Proceedings” means all complaints, counterclaims or cross-claims filed in a court of competent jurisdiction by or against t he Property, the Facilities, Owner, or Operator in connection with the Property or the Facilities.
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“Legal Requirements” means (a) all laws, ordinances, statutes, regulations and orders relating or applicable to the Owner or Operator, the Property, the Facilities or the FF& E now or hereafter in effect, and (b) all terms, conditions and requirements of all Permits and restrictive covenants affecting the Property or the Facilities. “Liabilities” is defined in Section 18.l.
“Major Repairs” means repairs costing in excess of $75 0,000 that must be made to the CVEATC, whether or not caused by Force Majeure Events, and that (a) are not due to the fault of Owner or Operator and (b) if not repaired, would materially adversely impact the Operator’s ability to fulfill Operator’s obligations under this Agreement. “Master Plan” is defined in Section 4.4.
“Naming Rights Revenues ” means all revenues from the sale of naming rights related to the CVEATC, excluding any CI Naming Rights Revenues. “Net Operating Revenues ” means, for each Fiscal Year, the amount, if any, by which the Gross Operating Revenues exceed the sum of the Operating Expenses and the Reserves for such Fiscal Year.
“Operating Account” means an account or accounts in the name of Operator established by Operator at a federally insured bank selected by Operator. “Operating Expenses” means, for any period, the sum of all expenses necessary to operate the CV EATC in accordance with the Operating Standard , the Annual Capital Budget, and the Annual Operating Budget. The Operating Expe nses include, without limitation, the Operator Fee. The Operating Expenses expressly do not include any Owner Expenses. “Operating Losses” means, for each Fiscal Year, the amount, if any, by which the Operating Expenses exceed the Gross Operating Revenues. “Operating Standard ” means the management, maintenance, repair, and operation of the Chula Vista Elite Athlete Training Center to comply with (a) the USOPC Agreement, (b) any contract entered into by the Owner, (c) the Annual Business Plan, (c) all applicable Legal Requirements, and (d) the other requirements of this Agreement. “Operator” is defined in the preamble of this Agreement. “Operator Agents” is defined in Section 18.l.
“Operator Employees” is defined in Section 6.1.
“Operator Fee” shall mean $500,000 per annum, as defined in Section 7.1. “Operator Parties ” means Operator, and its officers, officials, directors, employees, agents, Affiliates, representatives and lenders.
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“Operator Resolution Representative” is defined in Section 21.3. “Owner” is defined in the preamble of this Agreement.
“Owner Agents” is defined in Section 18.2.
“Owner Coordinator/Liaison” is defined in Section 6.3.
“Owner Expenses” means all costs and expenses related to (a) the investigation and/or remediation of any Hazardo us Materials related to the CV EATC and/or the operation thereof, including, without limitation, , except to the extent caused or permitted by Operator, ( b) any and all events hosted, sponsored or organized by Owner and agreed to by the Operator to be held at the CV EATC, (c) changing the signage at the CV EATC, or at any off -site locations including on public streets, pursuant to the requirements set forth in the USOPC Agreement, (d) the maintenance and repair of the sewer lines servicing the CVEATC (defined as City sewer lines outside the Property and all sewer lines on the Property up to and including, but not beyond, the sewer line “clean outs” for each building receiving sewer service), and (h) the Owner Operated Property. In addition, any costs or expenses that are determined to be the responsibility of Owner pursuant to Section 8.2 (Capital Improvements and Major Repairs) shall be included in the definition of Owner Expenses, subject to the provisions of such Section 8.2. Payment of the Owner Expenses shall be the sole responsibility of Owner, without any right to reimbursement from the Operator and Operator shall not have any obligation whatsoever to pay for the Owner Expenses, including, without limitation, any obligation to pay for removal of any liens on the Property arising from Owner’s failure to pay the Owner Expenses. Notwithstanding anything herein to the contrary, in no event shall Owner Expenses include any cost or expense caused by the negligence or willful misconduct of Operator or any Operator Party.
“Owner Operated Property” means that portion or those portions of the Property and the Facilities, designated by Owner and Operator in writing from time to time, which will not be operated by Operator and will be operated by Owner or on e of Owner ’s agents or designees.
The initial Owner Operated Property consists only of the following p ortions of the Property and the following Facilities: Initially, none.
“Owner Reimbursement” means all costs and expenses related to (a) obtaining property insurance for the CV EATC, including coverage and subject to deductibles that are standard for a project of similar size and scope, provided that the parties acknowledge that the Owner may self-insure through the Owner SIP, (b) any Impositions levied by any taxing authority arising out of Owner’s ownership of the CVEATC, as opposed to Operator’s use and operation of the CVEATC and/or Operator’s tax exempt status, or lack thereof; provided, however, that if the applicable taxing authority determines that real property taxes, possessory interest taxes or similar taxes must be paid due to the operation of the CVEATC by an entity other than Owner, or for any other reason, such taxes shall be treated as Operating Expenses of the CVEATC. “Owner Parties ” means Owner, and its officers, officials, directors, elected officials, employees, agents, Affiliates, representatives and lenders. “Owner SIP” means Owner’s expressly adopted formal program of self-insurance applicable to the Property and the Facilities.
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“Party” means a party to this Agreement.
“Permits” means all governmental or quasi -governmental licenses and permits necessary for the operation of and issued in connection with the CVEATC. “Property” is defined in the preamble to this Agreement. “Property Employees” means the personnel employed by Operator and working at the Property.
“Property Special Projects” means special projects related to the construction of additional Capital Improvements at the CV EATC or the enhancement of existing Capital Improvements at the CV EATC to be mutually agreed upon (including, without limitation, as to scope, timing and budget) between the Parties.
“Operator Reimbursable Expenses” is defined in Section 2.3.3. “Release” means a “release” as defined in any Environmental Law, unl ess such Release has been properly authorized and permitted in writing by each applicable Governmental Authority or is allowed by such Environmental Law without authorizations or permits. “Reserves” means the liquid operating and capital reserves set forth in the Annual Operating Budget and the Annual Capital Budget and maintained by Operator in connection with the operation of the Facility. The operating reserve is a fixed amount, rather than a yearly contribution.
“Security for Performance” is defined in Section 20.3.
“Sports Performance Facilities” shall have the meaning given to such term in the USOPC Agreement.
“Term” is defined in Section 3.1.
“Termination Notice” is defined in Section 3.2.
“Unavoidable Interruptions ” means interruptions in the operation of the CVEATC or any of its essential services on account of suspension of utility services, or on account of labor disputes, strikes, lockouts, fire or other casualty, acts of God or any other extreme occurrence beyond Operator’s reasonable control.
“USOPC” means the United States Olympic and Paralympic Committee, a federally chartered not-for- profit company.
1.2. Terminology.
1.2.1. All singular pronouns will include the plural, and all plural pronouns will include the singular.
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1.2.2. The Table of Conte nts, and titles of Articles, Sections and subsections in this Agreement are for convenience only, and neither limit nor amplify the provisions of this Agreement, and all references in this Agreement to Articles, Sections, subsections, paragraphs, clauses, subclauses or exhibits will refer to the corresponding Article, Section, subsection, paragraph, clause or subclause of, or exhibit attached to, this Agreement, unless specific reference is made to the articles, sections or other subdivisions of, or exhibit s to, another document or instrument.
1.2.3. Words such as “herein,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.
1.2.4. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
1.3. Exhibits. All exhibits attached to this Agreement are made a part of it.
Article 2
Operation of Property Generally
2.1. Engagement; Duties and Scope of Authority of Operator.
2.1.1. On the terms and conditions of this Agreement, Owner hereby engages Operator as the sole and exclusive operator and manager of the CV EATC, and Operator agrees to operate and manage the CV EATC during the Term, subject to the limitations set forth below in Section 2.5 (Limitations on Operator’s Authority). This Agreement is not a lease. It is an operating agreement for the purposes stated here in. Operator will operate and manage the CVEATC in compliance with the Operating Standard. Operator's duties shall include the following:
(i) paying the Operating Expenses, Owner Reimbursement and funding the Reserves, provided, however, that Operator shall be obligated to fund the Reserves only to the extent there is sufficient Net Operating Revenues as provided for in Article 7 and Section 20.3;
(ii) manage all aspects of the day -to-day operation of the Facility, including, without limitation, entering into booking agreements and/or other use agreements with users of the Facility, on terms to be determined by Operator, for use of the housing, food services, athletic and health facilities; administering and providing services to such users in connection with performance of such booking agreements and other use agreements; (iii) complying with all Legal Requirements that are applicable to the operation and management of the CV EATC, provided that any obliga tion to make Capital Improvements necessary to comply with the Legal Requirements shall be subject to the provisions set forth in Article 7;
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(iv) engaging and maintaining an adequate and effective work force for the purpose of satisfying Operator’s responsibilities under this Agreement; (v) repairing and maintaining the CV EATC in accordance with the Operating Standard and Articles 7 and 8;
(vi) maintaining books, records and accounting systems in accordance with the requirements of Section 10.1 hereof, which provide evidence of compliance with GAAP;
(vii) preparing quarterly report s of capital repair s and improvements equal to or greater than $10,000 as well as all short -term and/or long -term leases entered into subject to the provisions of Section 2.2. To be provided within forty-five (45) days of the end of each quarter;
(viii) proposing the Annual Business Plan, Annual Operating Budget and the Annual Capital Budget subject to approval by City Manager ’s designee in accordance with Article 5, and providing reports regarding the Annual Operating Budget and the Annual Capital Budget in accordance with Section 10.2;
(ix) negotiating and entering into service contracts that are necessary or desirable in the ordinary course of business in operating the CV EATC. All service contracts shall be se lected based on competitive procurement processes consistent with Owner’s standard procurement processes. Operator may, subject to City’s reasonable prior written approval, enter into service contracts with Affiliates of Operator on commercially reasonable terms. All service contracts will: (A) be in the name of Operator, (B) be assignable, at Owner ’s request, to a nominee, (C) to the extent customary and commercially possible, include a provision for cancellation thereof by Operator upon not more than thi rty (30) days ’ written notice without charge, and (D) require that all contractors provide evidence of such insurance as is customarily carried by other contractors involved in similar servicing arrangements; (x) fulfilling all obligations of Owner under all contracts assumed by Operator, including contracts entered into directly by Owner (whether after the Effective Date with Operator’s prior written consent or prior to the Effective Date, collectively, the “Owner Agreements”) with a ny third party concerning the Property . The Owner Agreements executed prior to the Effective Date that have been assigned to Operator are listed in the attached Exhibit H. Owner agrees that Owner will not enter into, amend, supplement or otherwise modify any Owner Agreements without Operator’s prior written consent; (xi) market and advertise the Facility; and
(xii) performing all other acts and things as may be reasonably necessary and appropriate to carry out Operator’s duties under this Agreement.
2.1.2. Owner’s engagement of Operator hereunder as operator and manager of the CV EATC shall be on an exclusive basis during the Term of this Agreement and during the Term Owner shall not have the right to (i) engage any other operator or manager of the CVEATC, or (ii) enter into any direct agreements with third parties for the use of the CVEATC of
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any type, other than the Core Agreement and agreements with users of the Owner Operated Property.
2.2. Additional Rights of Operator. Subject to the limitations set forth below in Section 2.5 (Limitations on Operator’s Authority), Operator shall have the following additional rights in connection with Operator’s management of the Facility upon City’s prior written consent in every instance and subject to any prevailing wage, project labor agreement, applicable law, rule or regulation, reasonable condition, Surplus Lands Act or any other applicable local, state or federal contracting requirements imposed on City property:
2.2.1. Enter into one or more short term l eases or ground leases with a term of no more than seven (7) years for the purposes of athletic development (“Short Term Leases”), including all option periods, with one or more tenants to operate one or more aspects of the Facility.
2.2.2. Enter into development agreements (“Development Agreements”) with one or more operating partners or developers (each, an “Operations Partner”), which may be in the form of a formal partnership (such as, but not limited to, a limited liability company, a limited partnership or other business organization), a services contract and/or a management agreement, pursuant to which Operator works together with the Operations Partner to develop, construct and/or operate one or more aspects of the Facility (each a “Development Project”); and
2.2.3. Propose to Owner, for Owner’s consideration and approval, one or more long term leases or ground leases for the purposes of athletic development with a term of longer than seven (7) years (“Long Term Leases”); provided, however, that each Long Term Lease will be entered into between the tenant and Owner directly and Owner shall have sole discretion to determine whether or not to enter into each Long Term Lease. Upon Operator submission to Owner of a draft term sheet or letter of intent for a Long Term Lease, Owner shall provide a written response to such term sheet or letter of intent, including Owner’s comments on the same, within thirty (30) days after receipt of the term sheet or letter of intent. Upon receipt of a draft of the definitive lease agreement for a Long Term Lease, Owner shall have thirty (30) days to provide a written response to such draft lease agreement, including Owner’s comments on the same. If Owner does not provide written responses within the thirty (30) day period, then the Long Term Lease proposal shall be deemed rejected for purposes of this Agreement.
2.2.4. Exclusive Operator. Except as otherwise stated in this Agreement, Operator’s authority as operator and manager of the Facility shall be exclusive of any Person, including, but not limited to, any third party and Owner. Such exclusive authority means that Operator shall have the right to control, direct, operate and mana ge all aspects of the Facility without the need for any consent or approval of any Person, including Owner, subject to the limitations of authority set forth in this Agreement and the requirements of applicable law. As used herein, “Person” means an indiv idual, corporation, partnership, limited liability company, trust, unincorporated association or any other entity or organization, including a government or any agency or political subdivision thereof. Notwithstanding any other provision to the contrary in this Agreement, Operator shall be authorized to use and operate the Facility but shall not have any real property interest in the Facility.
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2.2.5. Development Opportunities. Owner agrees to collaborate with Operator on development projects, including, but no t limited to, expanding Athlete Residences, Athletic Venues and other such Facilities that may enhance the financial performance of the CVEATC as guided by the Master Plan . Any proposals submitted prior the completion o f the Master Plan may be evaluated b y the Owner in conjunction with the consultant completing the Master Plan subject to the terms and provisions of this Agreement.
2.3. Operator’s Responsibility for Operating Expenses and Reserves.
2.3.1. Operator shall be responsible for paying for all Operating Expenses of the Facility; provided, however, that all Operating Expenses that are Operator Reimbursable Expenses shall be reimbursed to Operator by Owner.
2.3.2. Operator shall be obligated to maintain Reserves for the operation of the Facility in the aggregate amount of $500,000 or thirty (30) days of operating expenses, whichever is greater, at all times. For the avoidance of doubt, the amount of Reserves required pursuant to this paragraph is an aggr egate amount, not a yearly funding requirement. Operator shall be obligated to fund the Reserves each calendar year only to the extent necessary to ensure that the total amount of Reserves available at any given time equals $500,000.
2.3.3. As used in this A greement, “ Operator Reimbursable Expenses” means Operating Expenses arising from or related to:
(i) the investigation and/or remediation of any Hazardous Materials related to the Facility and/or the operation thereof except to the extent caused or permitted by Operator or related to or arising from this Agreement or Operator’s occupancy, use, maintenance, operation, repair, or improvement of the Facility . As used herein, the term “Hazardous Materials” means all chemicals, pollutants, contaminants, wastes and toxic substances, including: (i) solid or hazardous waste, hazardous substances, toxic substances, as defined in any Environmental Law, (ii) gasoline or any other petroleum product or byproduct, polychlorinated biphenyls, asbestos and urea formaldehyde, (iii) asbestos or asbestos containing materials; (iv) urea formaldehyde foam insulation, and (v) radon gas. “Environmental Law” means any and all laws, ordinances, statutes, and regulations applicable to the Property or the Facility now or hereafter in effect relating to environmental pollution, releases or threatened releases of Hazardous Materials or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials; (ii) Owner's vi olation of any obligations under any Owner Agreement;
(iii) any and all events, activities or occupancies hosted, sponsored, organized or arranged solely by Owner, and agreed to by the Operator, to be held at the Facility;
(iv) the maintenance and repair of the sewe r lines servicing the Facility (defined as City sewer lines outside the Property and all sewer lines on the Property up to
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and including, but not beyond, the sewer line “clean outs” for each building receiving sewer service);
(v) Operator Reimbursable Expense s will be reimbursed by Owner to Operator within thirty (30) days after Operator submits to Owner a written request for reimbursement with supporting documentation to the extent reasonably required by Owner, including, without limitation, copies of the relevant Vendor Agreements, invoices and receipts.
2.4. Operator’s Responsibility for Owner Reimbursement
2.4.1. Owner Reimbursement Expenses will be reimbursed by O perator to O wner within thirty (30) days after O wner submits to O perator a written request for reimbursement with supporting documentation to the extent reasonably required by O perator, including, without limitation, copies of the relevant invoices and receipts. (i) Reimbursement for such expenses shall be reimbursed only to the extent that such costs exceed t he aggregate amount of cell tower revenues (for cell towers located on the Property) received by the Owner.
(ii) obtaining property insurance for the Facility, including coverage and subject to deductibles that are standard for a project of similar size and sco pe, provided that the parties acknowledge that the Owner may self -insure through the Owner Self - Insurance Program;
(iii) any and all real estate and personal property taxes, levies and assessments of any governmental authority on the Property or the Facility ar ising out of Owner's ownership of the Facility, as opposed to Operator's use and operation of the Facility and/or Operator's tax-exempt status, or lack thereof.
2.5. Limitations on Operator ’s Authority . Notwithstanding anything to the contrary set forth in this Agreement, Operator has no authority to do any of the following without Owner’s prior written approval in each instance, which may be withheld in Owner ’s sole and absolute discretion:
2.5.1. Impose or cau se the imposition of liens or encumbrances on the Property, the Facilities or the FF&E;
2.5.2. Transfer, remove or modify any material real property interests, physical structures or sporting venues that are part of the Property or the Facility; notwithstanding the foregoing, Operator shall have the authority to make changes and improvements necessary to maintain the property to reasonably acceptable standards in accordance with the terms of this Agreement.
2.5.3. Provide preferred terms and conditions for use of any po rtion of the facility by an Affiliate of Operator; and
2.5.4. Convey a material interest in real property that is part of the Property or the Facility, other than (a) Short Term Leases entered into in accordance with Section
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2.2.1, or (b) the conveyance of an int erest in Capital Improvements (i) to a lessee pursuant to a Short Term Lease entered into in accordance with Section 2.2.1, or (ii) to an Operations Partner or an affiliate of an Operations Partner pursuant to a Development Agreement entered into in accordance with Section 2.2.2; provided, however, that in each of the cases described in subsection (i) and (ii), any such interest in Capital Improvements terminates upon the expiration or earlier termination of the applicable Short Term Lease or Development Agreement.
2.6. Emergency Actions and Expenditures . Notwithstanding anything to the contrary in this Agreement, if an Emergency occurs, Operator is authorized to take such action and cause such things to be done as Operator reasonably and in good faith believes necessary. Operator will inform Owner of an Emergency as soon as practicable.
2.7. Loss Recovery. All Operating Losses are the responsibility of the Operator for which the Owner has no responsibility.
2.8. Owner Operated Property. To the extent permissible, all revenues received by Owner from third parties and generated from operations on the Owner Operated Property shall be utilized by Owner, in Owner’s sole discretion, for purposes of reinvesting into the CV EATC.
Cell tower lease revenue (for cell towers on the Property) received by Owner will first be used to pay for Owner Reimbursable Expenses, any remaining expenses for these costs not covered by the cell tower revenue will be reimbursed as detailed in Section 2.4 of this Agreement.
2.9. Compliance with Core Agreement. If Operator or any Operator Party does or fails to do anything that causes Owner to be in violation of the Core Agreement or any Agreement with the USOPC related to the Facility , Operator shall be responsible for rectifying such matter. In the event of Operator’s failure to rectify such matter within the cure period for the rectification of such matter specified in the Agreement with the USOPC , then Operator shall be deemed to be subject to an Event of Default under this Agreement. Notwithstanding the foregoing, nothing in this Section 2.9 shall be construed to expand the list of obligations under the Core Agreement assumed by Operator hereunder, as set forth in Section 2.l of this Agreement.
Article 3
Term
3.1. Term. Unless terminated earlier pursuant to a Party's termination rights under this Agreement, the term ("Initial Term") of this Agreement shall commence on the Effective Date and terminate on December 31, 2035. Operator shall have one option (the "Extension Option") to extend th e Initial Term by an additional two (2) years, to be exercised by providing unconditional written notice to Owner by no later than January 1, 2034. The Initial Term, as it may be extended, shall sometimes be referred to herein as the "Term." By no later than eighteen (18) months prior to the expiration of the Term, the parties shall meet and confer regarding possible terms for a new agreement for up to eight (8) years, provided that any new agreement shall be subject to each party's approval in its sole discretion, provided further, however, that nothing in this sentence shall be construed to limit Operator's right to exercise the Extension Option.
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3.2. Operator's Early Termination Rights. Operator shall have the right to terminate this Agreement on the fourth (4th) anniversary and the sixth (6th) anniversary of the Effective Date with nine (9) months' prior written notice to Owner (the "Termination Notice"); provided, however, that such right may be exercised only if Operator and Owner have met and conferred for the purpose of agreeing upon an alternative business plan for the CVEATC at least three (3) months prior to the Operator's delivery of the Termination Notice.
Article 4
Master Plan Development
4.1. The City will complete a Master Plan as defined below. The Operator will be invited to collaborate with the City’s consultant in preparing the Master Plan, which will be presented to the City Council for adoption.
4.2. The Operator and Owner will collaborate to design a long -term master development plan for the Facility (the “Master Plan”). The Master Plan will articulate a vision of what the Facility may become during the Term and beyond. The cost of creating the Master Plan will be borne by Owner.
4.3. Within the first thirty (30) days of the Term, senior represe ntatives of Operator and Owner will commence Master Plan development with an in-person kick-off meeting to be held at a mutually convenient location and time. Thereafter, at least on a monthly basis, and more often as necessary, representatives of Operator and Owner will meet, in-person, via telephone or via videoconference, to discuss the progress and details of the Master Plan.
4.4. The Master Plan will address numerous and varied elements of the Facility, with the scope to be developed collaboratively by the Owner and Operator.
4.5. Even after the initial Master Plan is finalized and adopted by the City Council, it may be amended by mutual agreement of the parties.
Article 5
Annual Business Plan: Expenditures
5.1. Draft Annual Business Plan. The attached Exhibit D is a draft outline of a proposed Annual Business Plan (the “Draft Annual Business Plan”).
5.2. Owner Review of Annual Business Plan. The Parties shall meet and confer each Fiscal Year commencing on March 1st of the Fiscal Year to discuss possible updates and modifications to the Annual Business Plan. On an annual basis, Operator will submit, by no later than October 1st of each Fiscal Year, a proposed Annual Business Plan based on the Annual Business Plan of the prior Fiscal Year to the City Manager for review. The City Manager will provide comments to the proposed Annual Business Plan no later than thirty (30) days after receipt of the proposed Annual Business Plan and Operator will give reasonable consideration to amending the proposed Annual Business Plan to address the concerns raised by the City Manager before resubmitting the Annual Business Plan to the Owner for review and approval . Approval shall not be unreasonably withheld. In the event that Owner and Operator do not mutually agree
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to approve the Annual Business Plan, then such dispute will be resolved in accordance with Article
21. 5.2.1. The proposed Annual Business Plan shall include:
(i) Annual Operating Budget (revenues and expenses)
(ii) Annual Capital Budget
(iii) Five-year projected Capital Improvement Plan
Article 6
Property Employees
6.1. In General. Operator shall have the right and responsibility to hire, manage and terminate Operator’s employees as necessary to operate and maintain the CV EATC pursuant to the Operating Standard (the “Operator Employees”).
6.2. Key Positions . Ultimate decisions regarding hiring, managing or terminating any Operator Employees shall be made by Operator in Operator ’s sole dis cretion.
Operator shall also have sole discretion with respect to hiring and/or terminating any and all Operator accountants, consultants and legal counsel so long as Operator can demonstrate the ability to meet its obligations under this Agreement.
6.3. Owner Coordinator/Liaison. On the Effective Date of this Agreement , Owner shall designate a coordinator/liaison to be employed by Owner, or a non -profit created thereby (the “Owner Coordinator/Liaison”). The Owner Coordinator/Liaison shall be responsible for Owner’s obligations in respect of CV EATC operations, and shall be Operator ’s point of contact with the Owner and shall assist with the marketing of the CV EATC, at no cost to Operator, provided that the Owner Coordinator/Liaison shall not have any approval rights over any marketing decisions or any other aspects of the operation of the CVEATC. Operator shall provide the Owner Coordinator/Liaison with full access to the CV EATC, along with reasonable meeting space when requested and reasonable office support services, as an Operator expense.
Article 7
Operator Fees; Allocation of Net Operating Revenues
7.1. Operator Fee. Operator will receive an annual Operator Fee of $500,000 to be accounted for as an Operating Expense and may be payable to the owner of the Operator.
7.1.1. Owner acknowledges that Operator may utilize various funding mechanisms to support its operations, such as loans and financing. Such actions shall not affect Operator's entitlement to receive the Operator Fee. Operator shall provide written notice to the owner of the intent to seek or obtain any loans or finance. The parties will meet and confer within 30 days or notice. The operator shall provide the owner with the loan amount, interest rate, loan provider and any other relevant terms and conditions relevant to the loan. ,
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For avoidance of doubt, Owner shall not be obligated to pay, and Operator shall not be entitled to receive the Operator Fee if Operator, fails to provide prior written notice to Owner if Operator obtains any loans or financing, or has any debt secured by or related to (i) this Agreement, (ii) revenue derived by this Agreement, or (iii) the operations of the CVEATC.
In no instance shall any financing agreement cause there to be any lien, encumbrance, or any other financing mechanism that would use the Property as collateral or otherwise encumber title.
Interest rates shall be consistent with reasonable market rates for comparable publicly available projects.
7.1.2. Net Operating Revenues. Consistent with Section 8.2, after the Annual Capital Budget and Major Repairs have been completed in compliance with the Annual Business Plan and other terms of this Agreement, Net Operating Revenues will be allocated as follows:
For the first one million dollars annually:
40% will be used to fund ongoing capital needs identified in the Five-Year Capital Plan; and
60% may be used by the Operator at the Operator’s sole
discretion, provided such use does not negatively impact the Five-Year Capital Plan.
For any monies over one million dollars annually:
50% will be used to fund ongoing capital needs identified in the Five-Year Capital Plan; and
50% may be used by the Operator at the Operator’s sole
discretion, provided such use does not negatively impact the Five-Year Capital Plan.
Article 8Notwithstanding any contrary provision in this Agreement, Owner shall not be obligated to pay, and Operator shall not be entitled to receive Net Operating Revenues unless and until Operator pays any loans, financing, and any debt secured by or related to (i) this Agreement, (ii) revenue derived by this Agreement, or (iii) the operations of the CVEATC that exist or are outstanding on the Effective Date. A loans, financing, and any debt secured by or related to (i) this Agreement, (ii) revenue derived by this Agreement, or (iii) the operations of the CVEATC that exist or are outstanding within ten (10) days of the Effective Date. 7.1.3 In accordance with Section 5.2 both parties agree to meet and confer regarding this Section after two consecutive years of positive Net Operating Revenues.
Repairs and Maintenance; Capital Improvements
8.1. Repairs and Maintenance. Subject to the provisions set forth in Section 8.2 (Capital Improvements and Major Repairs), Operator will repair and maintain the CVEATC to keep the CVEATC in a good, healthy, safe, and sanitary condition, in the same or better condition as the condition on the Effective Date, and in compliance with the Operating Standard and the obligations of the USOPC agreement . Operator shall not commit or allow to be commi tted any waste or any public or private nuisance on the Facility. Operator shall keep the Facility clean and
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clear of refuse and obstructions, and shall dispose of all garbage, trash, and rubbish in a manner satisfactory to Owner. If the F acility is put into a condition that is not good, healthy, safe and sanitary, Operator shall at its sole cost and expense restore the Facility to the condition which existed prior to the waste, damage or destruction within a reasonable time. Notwithstanding the foregoing, if any such repairs and maintenance (including any and all Major Repairs) are:
8.1.1. Owner’s responsibility pursuant to the provision of Section 18.2 or are included in the Owner Expenses, then such repairs will be made by Owner unless the need for the repair was caused by an act or omission of Operator;
8.1.2. necessary due to any condition against the occurrence of which Owner has received the guaranty or warranty of a builder or of any supplier of labor or materials for the CV EATC or its construction, then Operator will invoke the guarantees or warranties in Owner’s or Operator ’s name, and Owner will cooperate in all reasonable respects with Operator in the enforcement thereof; and/or
8.1.3. covered by either Party’s insurance policy or poli cies, or are self- insured by the Owner SIP, then the cost of such maintenance and repairs will be covered to the extent of such insurance proceeds subject to Operator’s payment of any Owner cost associated with the insurance claim.
8.2. Capital Improvements and Major Repairs.
8.2.1. In the event that any Major Repairs are needed, or if Owner and Operator determine that certain Capital Improvements should be constructed on the CV EATC, then Operator and Owner shall meet and confer to determine (i) which Major Repairs or Capital Improvements should be made, and (ii) if a mutual decision is made to proceed with the contemplated Major Repairs or Capital Improvements, how to reasonably allocate the cost and responsibility of commencing and completing such Major Repairs or Cap ital Improvements between Operator and Owner. In such discussions, the Parties will give consideration to all relevant facts and circumstances, including, without limitation, the (A) cost of such Major Repairs or Capital Improvements, (B) whether the repai rs are covered by either Party ’s insurance policy or policies (including, without limitation, the Owner SIP), (C) Operator Fees then paid to date and projected, (D) the remaining Term of the Agreement, (E) any prevailing wage, project labor agreement, applicable law, rule or regulation, reasonable condition, Surplus Lands Act or any other applicable local, state or federal contracting requirements imposed on City property and (F) the ability of the CVEATC to generate Net Operating Revenues in the future.
8.2.2. Notwithstanding the foregoing, the parties agree that Operator shall be required to pay all amounts towards Major Repairs to the extent that Operator reasonably anticipates it will be able to recover such amounts from the payments due to the Operator under this Agreement for the to -be-agreed-upon remainder of the Term. In the event that Owner and Operator have a dispute over whether Operator can reasonably anticipate that Operator will be able to recover amounts contributed toward the applicable Major Repairs, from the payments due to Operator under this Agreement for the to-be-agreed-upon remainder of the Term, then such dispute will be resolved in accordance with Article 21.
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8.3. Financing of Capital Improvements.
8.3.1. Operator may finance Capital Improvements which Operator elects to undertake by any means permissible under applicable law applying for grants from philanthropic organizations or individuals, seeking investment from private companies, individual investors or developers (“Private Developers”), and/or ap plying for grants, awards, subsidies or tax increment financing from governmental or quasi -governmental bodies, including, without limitation, as may be available from the Owner. In no instance shall any financing agreement cause there to be any lien, encumbrance or any other financing mechanism that use s the Property as collateral or otherwise encumbers title. Interest rates shall be consistent with reasonable market rates for comparable publicly available projects. Further, any financing agreement or arrangement for any Capital Improvement project shall be approved by the Owner in writing prior to execution.
Article 9
Operating Account
9.1. Generally. Operator will open an Operating Account in the name of Operator at a federally insured bank selected by Operator, which may only be drawn upon by the signatories of Operator authorized under this Section 9.1. Operator will deposit into the Operating Account as and when received by Operator all Gross Operating Revenues. From the Operating Account, Operator will pay all Op erating Expenses for which Operator is responsible under this Agreement.
Article 10
Books Records and Financial Reporting
10.1. Books and Records.
10.1.1. The books of account and all other records relating to or reflecting the operation of the CVEATC will be available to Owner and its representatives and its auditors or accountants, at all reasonable times for examination, inspection, transcription and photocopying at Owner’s sole cost and expense.
10.1.2. All of the books and records pertaining to the CV EATC that are proprietary in nature shall be kept confidential by Owner and Operator and may not be disclosed to any third party, other than the Operator Parties and the Owner Parties, except to the extent necessary pursuant to the Legal Requirements.
10.2. Financial Reports . Operator will de liver to Owner reports regarding the Annual Operating Budget and the Annual Capital Budget during each Accounting Period and Fiscal Year at the times and containing the information set forth on Exhibit B.
10.3. Owner Audits. On such more or less frequent basis as Owner desires, Owner will have the right to perform a complete audit of the CV EATC either by Owner ’s internal personnel or by a third-party auditor retained by Owner. The audit may cover all items of expense and revenue under this Agreement including, w ithout limitation, Gross Operating Revenues, Operating Expenses, and the Operator Fee. The cost of one such audit during each Fiscal Year will
4936-1221-3371 v2 23
be an Operating Expense and the cost of any additional audits during the Fiscal Year will be the sole responsibility of Owner.
10.4. Confidential Information . Both parties recognize that their respective employees and agents, in the course of performance of this Agreement, may be exposed to confidential information and that disclosure of such information could violate the rights of private individuals and entities, including the parties and third parties. Confidential information is nonpublic information that a reasonable person would believe to be confidential and includes, without limitation, personal identifying infor mation (e.g., social security numbers), health information and trade secrets, each as defined by applicable state law, and all other information protected by applicable law (“Confidential Information”). The party receiving Confidential Information (“Receiving Party”) of the other (“Disclosing Party”) shall not, and shall cause its employees and agents who are authorized to receive Confidential Information, not to, use Confidential Information for any purpose except as necessary to implement, perform or enfo rce this Agreement or comply with its legal obligations. Receiving Party will use the same reasonable efforts to protect the Confidential Information of Disclosing Party as it uses to protect its own proprietary information and data. The Receiving Party will not disclose or release Confidential Information to any third person without the prior written consent of the Disclosing Party, except for where required by law or for authorized employees or agents of the Receiving Party. Prior to disclosing the Con fidential Information to its authorized employees or agents, Receiving Party shall inform them of the confidential nature of the Confidential Information and require them to abide by the terms of this Agreement. Receiving Party will promptly notify Disclos ing Party if Receiving Party discovers any improper use or disclosure of Confidential Information and will promptly commence all reasonable efforts to investigate and correct the causes of such improper use or disclosure. If Receiving Party believes the C onfidential Information must be disclosed under applicable law, Receiving Party may do so provided that, to the extent permitted by law, the other party is given a reasonable notice and opportunity to contest such disclosure or obtain a protective order. Confidential Information does not include information that: (i ) is or becomes known to the public without fault or breach of the Receiving Party; (ii) the Disclosing Party regularly discloses to third parties without restriction on disclosure; or (iii) the Receiving Party obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation. Confidential Information does not include any information that is required to be provided to the public pursuant to the laws o f the United States and/or California such as the California Public Records Act, due to the nature of Owner being a local governmental agency. The non-disclosure and non-use obligations of this Agreement will remain in full force with respect to each item of Confidential Information for a period of ten (10) years after the Receiving Party’s receipt of that item.
Article 11
Insurance
11.1. Maintenance of Insurance Coverage . Operator and Owner will maintain insurance in connection with the CV EATC with the coverages described on Exhibit C. The premiums for the insurance policies that Operator must maintain as set forth in Exhibit C will be an Operating Expense, provided that if Operator maintains any such coverage under a blanket policy, the prem iums for the blanket policy will be fairly and equitably allocated between the
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CVEATC and other covered properties. The premiums for the insurance policies that Owner must maintain as set forth in Exhibit C will be reimbursed from the Operator to the Owner.
Article 12
Condemnation
12.1. Condemnation. If the whole of the CVEATC will be taken or condemned in any eminent domain, condemnation, compulsory acquisition or like proceeding by any competent authority, this Agreement will terminate as of the date title vests in the condemning authority, or if such a portion thereof will be taken or condemned as to make it imprudent or unreasonable, to operate the remaining portion of the CVEATC in accordance with the Operating Standard, either Party may, by notice to Operator, termin ate this Agreement as of the date title vests in the condemning authority. Operator will have no interest in any award paid to Owner, provided, however, that nothing herein will limit Operator from filing a separate claim against the condemnor for any loss to its business as a result of such condemnation. If only a part of the CVEATC will be taken or condemned and the taking or condemnation of such pa rt does not make it unreasonable or imprudent to operate the remainder in accordance with the Operating Standard, this Agreement will not terminate, and so much of any award to Owner will be made available as will be reasonably necessary for making alterations or modifications to the CV EATC, or any part thereof, so as to make it satisfactory as a property or similar type and class as prior to the taking or condemnation.
The balance of the award, after deduction of the sum necessary for such alterations or modifications, will be retained by Owner, and Operator will not have interest therein. Operator will be entitled to make a separate claim against the condemnor (if allowed by law) for loss to its business as a result of such condemnation.
Article 13
Termination
13.1. Termination by Owner . Owner may terminate this Agreement, without paying any termination fee (or any similar fee) at any time (a) in accordance with Article 12 as a result of a condemnation, or (b) in accordance with Section 15.3, if an Event of Default by Operator occurs.
13.2. Termination by Operator. Operator may terminate this Agreement, without paying any termination fee (or any similar fee) at any time (a) in accordance with Article 12 as a result of a condemnation, or (b) in accordance with Section 15.3, if an Event of Default by Owner occurs.
Article 14
Rights and Obligations Following Termination
14.1. Rights and Obligations Following Termination. In addition to the rights and remedies otherwise available to the Parties under this Agreement, the following provisions will apply following ter mination of this Agreement pursuant to Article 13 or any other provision of this Agreement:
14.1.1. Operator will vacate and deliver to Owner peacefully and promptly the CV EATC and all Permits and all books, records, accounts, contracts, keys, and all other
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pertinent and necessary documents and records (excluding Property Employee records) pertaining to the CVEATC and the operation thereof. Operator will deliver to Owner any and all of Owner ’s properties and assets within the possession of Operator, including keys, locks and safe combinations, files, correspondence, information and deposits relating to group and other advance bookings, reservation lists, ledgers, bank statements for the Operating Account, accounting books and records, all electronic data maintained by Operator relating to the CV EATC (which data will be delivered in a format that is accessible and readable by Owner ’s then -current computer systems), insurance policies on which Owner is a named or additional insured, and other documents, agreements, leases, licenses, records and plans (including, without limitation, the as - built or record set plans) relating to the operation of the CV EATC, provided that Operator may retain possession of copies of any of the foregoing;
14.1.2. Operator will remit to Owner the balance (if any) of the Operating Account, after computation and disbursement to Operator of all accrued and unpaid Operator Fees ;
14.1.3. As expeditiously as reasonably possible, Operator will prepare and deliver to Owner the financial reports required under this Agreement with respect to the final Accounting Period and Fiscal Year, and remit to Owner the amount (if any) shown as owing to Owner in the final financial statements on account of any overpayment amounts; and
14.1.4. Operator will perform all acts and execute and deliver all documents reasonably requested by Owner in connection with the transfer, all without consideration therefor, and otherwise reasonably cooperate with Owner and any successor operator to insure or facilitate orderly continuation of the business of the CVEATC.
14.2. Survival. The provisions of this Article 14 will survive the termination of this Agreement.
Article 15
Events of Default
15.1. Operator Defaults. Each of the following will constitute an Event of Default by Operator:
15.1.1. Operator fails to pay any sum of money to Owner provided for in this Agreement when due, and that is not cured within ten ( 10) business days after written notice from Owner;
15.1.2. Operator fails to keep, observe or perform any other material covenant, agreement, term· or provision of this Agreement (with the exception of any such failure constituting an Event of Default under any other subsection of this Section 15.1), and such failure continues for a period of thirty (30) days after notice thereof by Owner to Operator. If such failure is incapable of cure within the thirty (30) day period and if Operator promptly, diligently and continuously pursues the cure thereof, then Operator will have a period of time reasonably required to remedy such failure to effectuate a cure;
15.1.3. An assignment by Operator in violation of Section 17.1;
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15.1.4. Operator applies for or consents to the appointment of a receiver, trustee or liquidator of Operator or of all of a substantial part of its assets, admits in writing its inability to pay its debts as they come due, makes a general assignment for the benefit of creditors, takes advantage of any insolvency law, or files an answer admitting the material allegations of a petition filed against Operator in any bankruptcy, reorganization or insolvency proceeding, or if an order, judgment or decree is entered by any court of competition jurisdiction, on the application of a creditor, adjudicating Operator bankrupt or insolvent or approving a petition seeking reorganization of Operator or appointing a receiver, tru stee or liquidator of Operator or all or a substantial part of its assets, and such order, judgment or decree continues unstayed and in effect for any period of one hundred twenty (120) consecutive days;
15.1.5. Operator files a voluntary petition in bankruptcy or insolvency or a petition for liquidation or reorganization under any bankruptcy law, or Operator consents to, acquiesces in, or fails timely to controvert, an involuntary petition in bankruptcy, insolvency or an involuntary petition for liquidation or reorganization filed against it; or
15.1.6. Any criminal misconduct, fraud or misappropriation of funds by Operator.
15.2. Owner Defaults. Each of the following will constitute an Event of Default by Owner:
15.2.1. Owner fails to timely pay Operator any money Owner is required to pay or furnish to Operator, if such failure is not cured within ten (10) business days after written notice by Operator;
15.2.2. Owner fails to keep, observe or perform any other material covenant, agreement, term or provision of this Agreement (with the exception of any such failure constituting an Event of Default under any other subsection of this Section 15.2), and such failure continues for a period of thirty (30) days after notice thereof by Operator to Owner. If such failure is incapable of cure within the thirty (30) day period and if Owner promptly, diligently and continuously pursues the cure thereof, then Owner will have a period of time reasonably required to remedy such failure to effectuate a cure;
15.2.3. Owner applies for or consents to the appointment of a receiver, trustee or liquidator of Owner of all or a substantial part of its assets, or admits in writing its inability to pay its debts as they come due, makes a general assignment for the benefit of creditors, takes advantage of any insolvency law, or f iles an answer admitting the material allegations of a petition filed against Owner in any bankruptcy, reorganization or insolvency proceeding, or if an order, judgment or decree is entered by any court of competent jurisdiction, on the application of a cr editor, adjudicating Owner a bankrupt or insolvent or approving a petition seeking reorganization of Owner or appointing a receiver, trustee or liquidator of Owner or of all or a substantial part of its assets, and such order, judgment or decree continues unstayed and in effect for any period of one hundred twenty (120) consecutive days;
15.2.4. Owner files a voluntary petition in bankruptcy or insolvency or a petition for liquidation or reorganization under any bankruptcy law, or Owner consents to,
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acquiesces in, or fails timely to controvert, an involuntary petition in bankruptcy, insolvency or an involuntary petition for liquidation or reorganization filed against it;
15.2.5. An assignment by Owner in violation of Section 17.1; or
15.2.6. Any criminal misconduct, fraud or misapp ropriation of funds by Owner with regard to the CVEATC.
15.3. Termination Upon Event of Default; Other Remedies. Upon the occurrence of an Event of Default, the non -defaulting Party may: (a) immediately terminate this Agreement by delivering notice of termination to the defaulting Party; and (b) pursue any and all other remedies available to the non -defaulting Party at law or in equity, subject to the limitations set forth m Section 22.1.
15.4. Unavoidable Interruption. To the extent that Operator is not able to satisfy any of obligations under this Agreement due to an Unavoidable Interruption, Operator shall be excused from the performance of such obligation for the duration of the Unavoidable Interruption, except to the extent the performance of such obligation remains required under the USOPC Agreement. Operator will promptly notify Owner of any Unavoidable Interruption and keep Owner informed as to the extent and impact of it on the CVEATC. Operator will also notify Owner. of any actions recommended by Operator to mitigate the effect of the cause of the Unavoidable Interruption.
Article 16
Notices
All notices, elections, acceptances, demands, and consents provided for in this Agreement will be in writing and will be delivered to the addresses set faith below or at such other address as any of the Parties hereto may hereafter specify in writing. Such notice or other communication may be given by (i) messenger, (ii) Federal Express or other nationally recognized overnight carrier, (iii) electronic mail (including via pdf transmission), or (iv) United States certified mail, return receipt requested, postage prepaid. Notice delivered by the means described in subsections (i) and (ii) of this paragraph shall be deemed received upon delivery. Notice delivered by the means described in subsections (iii) of this paragraph shall be deemed received upon deliver y confirmed by the sending party ’s automatic delivery confirmation system. All notices delivered by the means described in subsection (iii) of this paragraph must also be delivered by one of the other means set forth in paragraph, provided that, notwithstanding the foregoing, the date of delivery of any notice sent by the means described in subsection (iii) shall not be affected by the requirement that such additional notice be sent. Notice delivered by the means described in subsection (iv) of this paragraph shall be deemed received on the fifth (5th) day following the date of mailing of the notice. Notices will not be effective unless delivered by one of the means described above.
For Owner: City of Chula Vista
276 Fourth Avenue Chula Vista, CA 91910
Attn: City Manager
Email: [email protected]
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with a copy to: City of Chula Vista
276 Fourth Avenue Chula Vista, CA 91910
Attn: Marco A. Verdugo, City Attorney
Email: [email protected]
and which, for Operator is: Elite Athlete Services LLC
2800 Olympic Parkway
Chula Vista, California 91915
Attn: Brian Melekian, President and COO
Email: [email protected]
and a copy to: Law Office of Jubin Meraj
8621 Wilshire Blvd., Floor 2
Beverly Hills, California 90211
Attn: Jubin Meraj, Esq.
Email: [email protected]; [email protected]
Article 17
Assignment
17.1. Limitation on Assignment. Neither Party may assign the Agreement without the other Party ’s prior written consent which may be withheld in the requested party ’s sole and absolute discretion, except to a wholly-owned subsidiary of the assigning Party.
Article 18
Indemnity
18.1. By Operator. Except for those matters for which Owner is indemnifying Operator in accordance with Section 18.2 below, Operator agrees to protect, indemnify, defend and hold harmless Owner and the Owner Pa rties from and against any and all liabilities, costs, fees, losses, demands, actions, judgments, expenses or claims (including reasonable attorney ’s fees, fees of experts and court costs) (collectively, the “Liabilities”) for personal and bodily injury to or death of any person or for damages to any property arising out of or in any manner connected with (a) the management, operation, occupancy or enjo yment of the CV EATC by Operator and any of its sublessees, agents, employees, pe rmittees, licensees or contractors (the “Operator Agents”) or any work or activity or other things allowed or suffered by Operator or the Operator Agents to be done in or about the CVEATC, and (ii) any breach or default in the performance obligations of Operator under the Agreement. If Operator is required to defend Owner, Operator or Operator’s insurer shall be responsible for the reasonable cost of counsel, provided that Operator or Operator’s insurer shall have the right to control the defense, subject to Owner’s right to consent to any settlement of claims, which consent shall not be unreasonably withheld.
18.2. By Owner.
18.2.1. Except to the extent caused by Operator ’s negligence or willful misconduct, Owner agrees to protect, indemnify, defend and hold harmless Operator and the
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Operator Parties from and against any and all Liabilities for personal and bodily injury to or death of any person or for damages to any prope rty arising out of or in any manner connected with (i) the active negligence, willfully wrong or illegal use, management, operation, occupancy or enjoyment of the Property by Owner and any of its, agents, employees, invitees, permittees, licensees or contractors (excluding Operator and the Operator Parties ) (the “Owner Agents”) or any work or activity or other things negligently, wrongfully, or illega lly caused by Owner or any of the Owner ’s Agents to be done in or about the Prope rty, and (ii) any breach or default in the performance obligations of Owner under the Agreement. If Owner is required to defend Operator, Owner or Owner’s insurer shall be responsible for the reasonable cost of such counsel, provided that Owner or Owner ’s insurer shall have the righ t to control the defense, subject to Operator ’s right to consent to any settlement of claims, which consent shall not be unreasonably withheld.
18.2.2. Except to the extent such matters are caused or allowed by Operator or any act or omission of Operator, Owner will indemnify, defend, protect (with counsel acceptable to the Operator) and hold the Operator and the Operator Parties harmless from any and all Liabilities related to the following:
(i) any environmental condition related to the Property not caused by Operator, including, without limitation, the violation of any Environmental Law and the investigation and/or remediation of any Hazardous Materials related to the CV EATC and/or the operation thereof,
(ii) any claim for or by any occupant, tenant, licensee, invitee, declarant, or any party that claims a right to the Prope rty pursuant to a recorded or unrecorded instrument, or by means of adverse possession or prescription, that their rights have been violated by the operation of the CVEATC as required by the USOPC Agreement, the Transfer Agreement, the Easton Agreement, this Agreement, that is not caused by the Operator after the Transfer Date acting in violation of its obligations in this Agreement, (iii) any event or circumstances that occurs related to the operation, management, ownership and use of the Property that is not due to any act or omission of the Operator or any of Operator ’s affiliates, employees, agents, representatives, or contractors, to the extent that the Owner actually recovers the amount of such Liabiliti es from the USO PC pursuant to Owner ’s rights under the Core Agreement or the Transfer Agreement, provided that Owner shall make good faith efforts to exercise any rights Owner may have under both such agreements to recover such amounts, and
(iv) for any events held at the Property by the Owner, sponsored or co-sponsored by the Owner.
18.3. Additional Indemnity Provisions.
18.3.1. Under no circumstances will any of the indemnity rights set forth in this Agreement require any indemnifying party to indemnify the other party for the indemnified party’s negligence or wrongful conduct.
18.3.2. In the event that a claim is made against both Owner and Operator by any USOPC employee based on events, benefits or salary accruing prior to the Effective Date
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of the Original Agreement, the Owner and the Operator, or their respective insurers, will equally share the legal fees incurred in defending such claim by co unsel reasonably acceptable to both Parties and each Party shall have the right to approve of any settlement agreement affecting such Party in connection with such claim, which approval shall not be unreasonably withheld, provided, however, that if one such Party wishes to settle any such claim against it and the other Party does not wish to settle the applicable claim, the Party that wi shes to settle may do so and upon such settlement shall be relieved of any cost -sharing obligations imposed by this Section and accruing from and after the date of such settlement.
18.3.3. No recovery under the indemnification provisions of this Agreement will be allowed if the Liability has been paid in full, or and to the extent that it has been paid in part, by any insurance maintained by Owner or Operator.
18.3.4. PERS Eligibility Indemnification . In the event that any of Operator’s officers, employees, agents, subcontractors, representatives or other persons providing services on Operator’s behalf under this Agreement (collectively “Operator’s Personnel”) claims or is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS of the Owner, Contractor shall indemnify, defend (with counsel acceptable to Owner), and hold harmless Owner for the payment of any employer and employee contributions for PERS benefits on behalf of Operator’s Personnel as well as for payment of any penalties and interest on such contributions which would otherwise be the responsibility of the Owner.
Notwithstanding any other agency, state or federal policy, rule, regulation, law, or ordinance to the contrary, Ope rator’s Personnel providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any claims to, any compensation and benefit including but not limited to eligibility to enroll in PERS as an employee of Owner and entitlement to any contributions to be paid by Owner for employer contributions and/or employee contributions for PERS benefits.
18.3.5. Limitation of Owner Liability. The payment made to Operator pursuant to this Agreement shall be the full and complete comp ensation to which Operator and Operator’s Personnel are entitled for performance of any obligation under this Agreement. Neither Operator nor Operator’s officers or employees are entitled to any salary or wages, or retirement, health, leave or other fring e benefits applicable to employees of the Owner. The Owner will not make any federal or state tax withholdings on behalf of Operator. The Owner shall not be required to pay any workers’ compensation insurance on behalf of Operator.
18.3.6. Indemnification for Em ployee Payments. Operator agrees to defend (with counsel acceptable to Owner), indemnify and hold harmless the Owner for and against any obligation, claim, suit, or demand for tax, retirement contribution, including any contribution to the Public Employees Retirement System (PERS), Social Security, salary, or wages, overtime payment, or workers’ compensation payment which the Owner may be required to make on behalf of Operator or Operator’s Personnel for work done under this Agreement.
18.4. Survival. This Article 18 will survive termination of this Agreement.
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Article 19
Representations and Warranties
19.1. Representations and Warranties of Operator . In order to induce Owner to enter into this Agreement, Operator makes the following representations and warranties as of the Effective Date:
19.1.1. this Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of Operator enforceable in accordance with the terms hereof;
19.1.2. to the best knowledge of Operator, there is no claim, liti gation, proceeding or governmental investigation pending, or, as far as is known to Operator, threatened, against or relating to Operator, the properties or business of Operator or the transactions contemplated by this Agreement which does, or may reasonab ly be expected to, materially and adversely affect the ability of Operator to enter into this Agreement or to carry out its obligations hereunder, and to the best knowledge of Operator, there is no basis for any such claim, litigation, proceedings or governmental investigation, except as has been fully disclosed in writing to Owner; and
19.1.3. neither the consummation of the transactions contemplated by this Agreement on the part of Operator or be performed, nor the fulfillment of the terms, conditions and provisions of this Agreement, conflicts with or will result in the breach of any of the terms, conditions or provisions of, or constitute a default under, any agreement, indenture, instrument or undertaking to which Operator is a party or by which it is bound.
19.2. Representations and Warranties of Owner . In order to induce Operator to enter into this Agreement, Owner makes the following representations and warranties as of the Effective Date:
19.2.1. this Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding obligation of Owner enforceable in accordance with the terms hereof;
19.2.2. there is no claim, litigation, proceeding or governmental investigation pending, or as far as is known to Owner, threatened, against or relating to Owner, the properties or business of Owner or the transactions contemplated by this Agreement which does, or may reasonably be expected to, materially and adversely affect the ability of Owner to enter into this Agreement or to carry out its obligations hereunder, and there is no basis for any such claim, litigation, proceedings or governmental investigation, except as has been fully disclosed in writing to Operator; and
19.2.3. neither the consummation of the transactions contemplated by this Agreement on the part of Owner to be performed nor the fulfillment of the terms, conditions and provisions of this Agreement, conflicts with or will result in the breach of any of the terms, conditions or provisions of, or constitute a default under, any agreement, indenture, instrument or undertaking to which Owner is a party or by which it is bound.
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19.3. No Representation or Warranty Regarding Success; AS-IS. In entering into this Agreement, Operator and Owner acknowledges that (a) neither such Party has made any representation or warranty to the other regarding projected earnings, the possibility of future success or any other similar matter respecting the CV EATC, and (b) such Party understands that no guarantee has been made as to any specific amount of income to be received b y Operator or Owner or as to the future financial success of the CV EATC. Operator has reviewed and approves the terms and conditions of the Transfer Agreement and the USOPC Agreement. Operator has conducted all necessary and appropriate inspections and other due diligence analysis with respect to the CVEATC and accepts the CVEATC in its current, AS-IS, condition.
Article 20
Covenants and Additional Rights and Obligations
20.1. Owner Covenants . Owner makes the following covenants in favor of Operator: (a) Owner shall not m ake or allow any material alterations to any existing facilities or improvements at the Property or to any new facilities at the Property, to the extent that Operator demonstrates that such alterations or improvements would have a material adverse impact o n the Operator’s ability to operate the CV EATC in accordance with this Agreement or the Annual Business Plan without first receiving Operator ’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed, (b) Owner shall not take any actions to violate any use restrictions applicable to the Property (including, without limitation, any such restrictions under the Legal Requirements), and the Operator shall agree to do the same, (c) Owner shall use good faith efforts to and cooperate with Operator to seek ways to increase revenues and decrease costs of operations for the CV EATC, including good faith efforts to attempt to negotiate an agreement with the local electricity and water providers to lower the cost of electricity and water, respectively, if Owner is able to achieve a lower electricity and/or water rate, (d) to the extent permissible under the Legal Requirements and to the extent Owner will not have to pay for the following items, Owner shall waive any and all Owner -imposed taxes, fees, payments, charges, processing costs, inspection costs or fees, or any other costs or fees related to the operation and use of the CVEATC that Owner is authorized to charge to private landowners, (e) Owner shall not amend or otherwise modify the Core Agreement, or make any other agreement between Owner and USOPC with respect to the CV EATC without Operator ’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
20.2. Owner Reservation of Access/Events.
20.2.1. Subject to reasonable restrictions imposed by Operator and to Operator’s receipt of reasonable advance notice of Owner ’s request, the following terms shall apply:
(i) Operator shall provide Owner ten ( 10) passes at no cost to special CVEATC events identified in advance b y the mutual agreement of Owner and Operator, which passes will be distributed by Owner at no cost.
(ii) Sufficient time and space permitting, Owner shall have access to the CV EATC to host a certain number and type of Owner events (such as Owner staff/official retreats or meetings) to be agreed upon between Owner and Operator and Owner shall
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pay for such access at a price equal to Operator ’s cost for the same, as reasonably determined by Operator.
(iii) Owner’s use of the Prope rty for certain additional other programs sponsored or operated by Owner and agreed to by Operator ( including but not limited to, the Owner Library Foundation, the Friends of Parks and Recreation, and the City of Chula Vista Police Activities League) shall be scheduled with prior approval of Oper ator at preferred rates to be negotiated.
20.2.2. To the extent that Operator anticipates that any of the rights granted to Owner pursuant to Sections 20.2.1(ii) and 20.2.1(iii) will conflict with an income -producing third-party use of the CVEATC, Owner and Operator agree that such third-party use will be given priority by Operator.
20.3. Security for Performance . As security for Operator ’s performance of its obligations under this Agreement, Operator shall ensure that Operator maintains Reserves of no less than $500,000 at all times during the Term. If the amount of the Reserves drops below $500,000.00 at any time during the Term, Operator shall immediately notify City thereof and shall immediately replenish such minimum Reserves, including, if necessary, by utilizing independent funds of Operator.
20.4. Naming Rights. Any agreement with respect to naming rights for all or any portion of the CVEATC shall be subject to the prior written approval of the City, after meeting and conferring with Operator, in the City’s reasonable discretion; provided, however, in no event will City approve naming rights for any CVEATC facility for a university or college institution without Operator’s prior approval, not to be unreasonably withheld.
20.5. Additional Training Site Designations . Any proposal concerning conducting additional sports activities at CV EATC shall be mutually agreed upon in writing by Owner and Operator prior to execution of any associated agreement or facility modification and prior to commencement of the additional activities.
Article 21
Dispute Resolution
21.1. General. If a conflict or dispute arises between the Parties in relation to this Agreement, all efforts will be used to immediately resolve such conflict or dispute on an amicable basis. If the Parties cannot arrive at a resolution of such conflict or dispute within thirty (30) days of the date written notice of such conflict or dispute is provided by one Party to the other Party (the “Dispute Notice ”), the dispute resolution procedure set forth in this Article 2 1 shall be followed by the Parties.
21.2. First Level . The employee of the Operator primarily responsible for management of the CVEATC and the Owner Coordinator/Liaison shall meet and use commercially reasonable efforts to resolve the issue in the best interest of the applicable program and/or athletes involved and all other applicable considerations, and with the least amount of disruption possible to the applicable program and/or athletes’ training activities.
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21.3. Second Level. In the event that the dispute or conflict cannot be resolved by the process described in the previous paragraph within forty-five (45) days of a Party’s receipt of the Dispute Notice, then such dispute or conflict shall be promptly submitted to a representative designated by Operator (the “Operator Resolution Representative”) and the City Manager (the “Owner Resolution Representative ”) for resolution, which individuals shall be different than those named in Section 21.2 hereof. The foregoing shall be accomplished by the complaining Party submitting, in writing, a brief and specific summary of the disput e, as well as the relief sought. It is not the intent of the Parties that such document be technical in nature, but rather that such document be an aid in providing prompt, fair and impartial relief with the least degree of disruption possible to the appli cable program and/or athletes ’ training activities. The Operator Resolution Representative and the Owner Resolution Representative will use commercially reasonable efforts to comply with the spirit of the dispute resolution process set forth in this Article 21 in providing the fairest possible resolution. The parties understand that some such disputes or conflicts may not be of an immediate nature relating only to one specific activity, but rather to an accumulation of conflicts or disputes or to a process or rule.
21.4. Third Level . In the event that the steps set forth in the immediately preceding paragraph does not result in the resolution of such dispute within sixty (60) days of a Party’s receipt of the Dispute Notice, Operator and Owner agree that such disp ute shall be settled by final and binding arbitration in accordance with the arbitration procedures set forth on the attached Exhibit E. BY EXECUTING THIS AGREEMENT, OPERATOR AND OWNER ARE
AGREEING TO HA VE ANY SUCH DISPUTE ARISING OUT OF THIS AGREEMENT THAT
HAS NOT BEEN RESOLVED PURSUANT TO THE FOREGOING PROVISIONS OF THIS Article 2 1 DECIDED BY NEUTRAL BINDING ARBITRATION AS PROVIDED BY
CALIFORNIA LAW AND OPERATOR AND OWNER ARE GIVING UP ANY RIGHTS THEY MIGHT POSSESS TO HA VE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY
EXECUTING THIS AGREEMENT, OPERATOR AND OWNER ARE GIVING UP THEIR
JUDICIAL RIGHTS TO DISCOVERY AND APPEAL WITH RESPECT TO DISPUTES
ARISING IN CONNECTION WITH THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH
RIGHTS ARE SPECIFICALLY INCLUDED IN TH E ARBITRATION OF DISPUTES PROVISION SET FORTH ON THE ATTACHED EXHIBIT E.
________ INITIALS OF OWNER _______ INITIALS OF OPERATOR If either Operator or Owner refuses to submit to arbitration, such Party may be compelled to arbitrate under the authority of t he California Code of Civil Procedure. Each of Operator’s and Owner’s agreement to this arbitration provision is voluntary. Each of Operator and Owner acknowledges and agrees that such Party has read and understands the foregoing and agrees to submit disputes arising out of this Agreement to neutral binding arbitration.
Article 22
Miscellaneous
22.1. Limitation of Remedies. In the event of a breach by either Party hereunder, or the enforcement of any indemnity obligation, the Other Party may recover only its direct, actual damages as a result of such breach. In no event shall either Party have a right to recover punitive or consequential damages including, without limitation, lost profits.
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22.2. Relationship of the Parties . By virtue of this Agreement, Operator and Owner shall not be construed to be (a) joint venturers or partners of each other, or (b) landlord and tenant. Neither Party shall have the power to bind or obligate the other Party except as set forth in this Agreement. Operator understands and agrees that the relatio nship to Owner is that of independent contractor, and that it will not represent to anyone that its relationship to Owner is other than that of independent contractor. Nothing herein shall deprive or otherwise affect the right of either Party to own, inves t in, manage or operate property, or to conduct business activities which are competitive with the business of the Property.
22.3. Entry and Inspection. Owner may at all times enter and inspect the Facility and the operations conducted on the Facility.
22.4. Further Assurances. Owner and Operator will execute and deliver all other appropriate supplement agreements and other instruments and take any other action reasonably necessary to make this Agreement fully and legally effective, binding and enforceable as between them and as against third parties.
22.5. CPRA. This Agreement is a public document subject to the California Public Records Act (Act), and as such may be subject to public review. Owner shall determine, in its sole discretion, whether information provided to Owner by Operator is or is not a public record subject to disclosure under the Act. Owner shall not be liable or obligated for any burden or loss (financial or otherwise) incurred by Operator as a result of Owner’s disclosure or non -disclosure of information requested pursuant to the Act.
Operator’s Waiver. OPERATOR EXPRESSLY WAIVES ANY CLAIM AGAINST
OWNER AND ITS ELECTED OFFICIALS, OFFICERS, EMPLOYEES,
REPRESENTATIVES AND AGENTS FOR ANY BURDEN, EXPENSE OR
LOSS THAT OPERATOR INCURS AS A RESULT OF OWNER’S DISCLOSURE
OR NON -DISCLOSURE OF OPERATOR INFORMATION REQUESTED
PURSUANT TO THE ACT
22.6. Joint and Several Liability. If Operator is comprised of more than one person or legal entity, such persons or legal entities, and each of them, shall be jointly and severally liable for the performance of each and every obligation of Operator under this Agreement.
22.7. Taxes. Subject to the provisions of Article XIII, section 3(d) of the California Constitution and section 202.2 of the California Revenue and Taxation Code, Operator shall pay, before delinquency, all taxes, assessments, and fees assessed or levied upon Operator or the Facility, including the land, any buildings, structures, machines, equipment, appliances, or other improvements or property of any nature whatsoever
22.8. Utilities. Operator shall order, obtain and pay for all utilities and service installation charges in connection with the use and operation of the Facility.
22.9. Waiver. The waiver of any of the terms and conditions of this Agreement on any occasion or occasions will not be deemed a waiver of such terms and conditions on any future occasion.
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22.10. Successors and Ass igns. Subject to and limited by Article 17, this Agreement will be binding upon and inure to the benefit of Owner, its successors and permitted assigns, and will be binding upon and inure to the benefit of Operator, its successors and permitted assigns.
22.11. Governing Law . This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to California or any other choice of law or conflicts of laws principles.
22.12. Amendments. This Agreement may not be modified, amended, surrendered or changed, except by a written document signed by Owner and Operator agreeing to be bound thereby.
22.13. Partial Invalidity. If any one or more of the phrases, sentences, clauses or paragraphs contained in this Agreement will be declared invalid by the final and unappealable order, decree or judgment of any court or arbitration panel with valid jurisdiction, this Agreement will be construed as if such phrases, sentences, clauses or paragraphs had not been inserted, unless such construction would substantially destroy the benefit of the bargain of this Agreement to either of the parties hereto.
22.14. Entire Agreement . This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, superseding all prior a greements or undertakings, oral or written.
22.15. Time is of the Essence: Time Periods . TIME IS OF THE ESSENCE IN THIS AGREEMENT. Time periods expressed as a number of days will be in calendar days, unless specifically stated to be in business days.
22.16. Interpretation. No provision of this Agreement will be construed against or interpreted to the disadvantage of any Party hereto by any court or other governmental or judicial authority by reason of such Party having or being deemed to have structured or dictated suc h provision.
22.17. Counterparts; Electronic Execution and Delivery . This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and need not be signed by more than one of the parties hereto and all of which will constitute one and the same agreement. This Agreement may be executed and delivered via pdf or facsimile transmission.
Delivery of an executed counterpart of this Agreement by facsimile or pdf shall be equally as effective as delivery of an original executed counterpart of this Agreement.
22.18. Attorney’s Fees and Litigation Expenses. The prevailing Party in any action arising out of or related to this Agreement (including, without limitation, any arbitration) will be entitled to recover from the other Par ty all reasonable fees, costs, and expenses incurred by the prevailing Party in connection with such action, including reasonable attorneys ’ fees, expenses, and disbursements, and fees, costs, and expenses relating to any appeal. If any Party secures a judgment in any proceeding brought to enforce or interpret this Agreement (including, without limitation, any arbitration), then any costs or expenses (including reasonable attorneys ’ fees) incurred in enforcing, or in appealing from, such judgment will be pa yable by the Party against
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whom such judgment or determination on appeal has been rendered and will be recoverable separately from and in addition to any other amount included in such judgment. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written, in duplicate:
OWNER:
THE CITY OF CHULA VISTA,
a chartered municipal corporation
By:
Name:
Its:
OPERATOR:
ELITE ATHLETE SERVICES LLC,
a California liability company
By:
Name:
Its:
APPROVED AS TO FORM:
By:
Marco A. Verdugo
City Attorney
City of Chula Vista
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EXHIBIT LIST
EXHIBIT A – LEGAL DESCRIPTION OF PROPERTY
EXHIBIT B – OPERATOR ACCOUNTING REPORTS
EXHIBIT C – SCHEDULE OF INSURANCE COVERAGES
EXHIBIT D – DRAFT ANNUAL BUSINESS PLAN
EXHIBIT E – ARBITRATION PROCEDURE
EXHIBIT F – PROPERTY FACILITIES
EXHIBIT G – CORE AGREEMENT
EXHIBIT H – OWNER AGREEMENTS
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EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CHULA
VISTA, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL Al: APN 643-040-25
PARCEL 2 OF PARCEL MAP NO. 21014, IN THE CITY OF CHULA VISTA, COUNTY OF
SAN DIEGO, STATE OF CALIFORNIA, STATE OF CALIFORNIA, ACCORDING TO MAP
THEREOF FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY , DECEMBER 10, 2012 AS INSTRUMENT NO. 2012-0773388 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM AN UNDIVIDED ½ INTEREST IN ALL OIL, GAS, AND MINERALS OWNED BY GRANTOR 500 FEET OR MORE BELOW THE SURFACE OF SAID
LAND, BUT WITHOUT THE RIGHT OF ENTRY ON THE SURFACE OF SAID LAND, AS RESERVED IN THAT CERTAIN DEED RECORDED FEBRUARY 16, 1994 AS FILE NO. 1994- 0104492, OFFICIAL RECORDS.
PARCEL A2: APN 643-040-26, 27 AND 28
PARCELS 1, 2 AND 3· OF PARCEL MAP NO. 21116 , IN THE CITY OF CHULA VISTA,
COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY , MARCH 13, 2014 AS INSTRUMENT NO. 2014-099767 OF OFFICIAL RECORDS.
EXCEPTING THEREFROM AN UNDIVIDED ½ INTEREST IN ALL OIL, GAS AND MINERALS OWNED BY GRANTOR 500 FEET OR MORE BELOW THE SURFACE OF SAID
LAND, BUT WITHOUT THE RIGHT OF ENTRY ON THE SURFACE OF SAID LAND, AS RESERVED BY WESTERN SALT COMPANY , BY DEED RECORDED FEBRUARY 16, 1994 AS INSTRUMENT NO. 94-0104492 OF OFFICIAL RECORDS.
PARCEL B: (PORTION 643-040-02 AND PORTION 643-040-03)
A LEASE FOR OLYMPIC TRAINING FACILITIES LOCATED IN THE LOWER OTAY LAKE
AREA IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHEASTERLY TERMINUS OF THE CENTER LINE OF WUESTE ROAD DESIGNATED AS NORTH 46°33'30' EAST 200.32 FEET AS SHOWN ON PARCEL MAP 16318 FILED IN THE O FFICE OF THE COUNTY RECORDER OF SAID COUNTY , SAID POINT BEING THE BEGINNING OF A TANGENT 400.00 FOOT RADIUS CURVE CONCA VE SOUTHWESTERL Y; THENCE NORTHEASTERL Y AND NORTHERLY ALONG
THE CENTER LINE OF SAID WUESTE ROAD A DISTANCE OF
4936-1221-3371 v2 41
314.55 FEET, THROUGH A CENT RAL ANGLE OF 45°03124" TO THE TRUE POINT OF BEGINNING; THENCE LEA VING THE CENTER LINE OF SAID ROAD NORTH 84°19'16" EAST 113.55 FEET TO A TANGENT 75.00 FOOT RADIUS CURVE CONCA VE SOUTHWESTERL Y; THENCE SOUTHEASTERL Y ALONG THE ARC OF SAID CURVE A DISTANCE OF 1 53.01 FEET, THROUGH A CENTRAL ANGLE OF 116°53'16"; THENCE SOUTH 21°12'32" WEST 462.90 FEET; THENCE SOUTH 68°50'31" EAST 341.35 FEET; THENCE NORTH 53°01'11" EAST 207.80 FEET; THENCE NORTH 29°27'13" EAST 97.62 FEET; THENCE NORTH 49°18'16" WEST 131.89 FEET; THENCE NORTH 35°11'51" WEST 137.06 FEET; THENCE NORTH 69°22'16" WEST 131.39 FEET; THENCE NORTH 21°12'32" EAST 182.34 FEET TO A TANGENT 105.00 FOOT RADIUS CURVE CONCA VE SOUTHWESTERL Y; THENCE WESTERL Y ALONG THE ARC OF SAID CURVE A DISTANCE OF 214.21 FEET, THR OUGH A CENTRAL ANGLE OF 116°53'16"; THENCE SOUTH 84°19'16" WEST 221.92 FEET TO A POINT ON A 400.00 FOOT RADIUS CURVE CONCA VE WESTERL Y , A RADIAL LINE TO SAID POINT BEARS NORTH 77°08'25" EAST,
SAID CURVE ALSO BEING THE CENTER LINE OF WUESTE ROAD AS SHOWN ON SAID PARCEL MAP; THENCE SOUTHERLY ALONG THE ARC OF SAID CENTER LINE A DISTANCE OF 100.26 FEET, THROUGH A CENTRAL ANGLE OF 14°21'41" TO THE TRUE POINT OF BEGINNING.
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EXHIBIT B
OPERATOR ACCOUNTING REPORTS
Operator will provide to Owner (i) a report on the operation of the CVEATC for each Accounting Period (the "Accounting Period Report") no later than forty five (45) calendar days after the last day of that Accounting Period, and (ii) an annual report on the operation of the CVEATC for each Fiscal Year (the "Annual Report") no later than ninety (90) calendar days after the end of that Fiscal Year.
The Accounting Period Report will include the following information:
l. Income Statement. A profit and loss s tatement, with a summary, prepared in accordance with the GAAP. The profit and loss statement will be provided for the: (a) Accounting Period, and (b) Fiscal Year -to-date performance. Accounting Period and year -to-date variances from the Annual Operating B udget and the Annual Capital Budget will be included.
2. Listing of all capital repairs and improvements exceeding $10,000.
3. Listing and detailed terms and conditions for any short-term and/or long-term leases.
The Annual Report will include the following information:
1. Income Statement. A profit and loss statement, with a summary, prepared in accordance with the GAAP. The profit and loss statement will be provided for the Fiscal Year that is the subject of the Annual Report. Variances from the Annu al Operating Budget and the Annual Capital Budget will be included.
2. Balance Sheet. A balance sheet as of the last day of the Accounting Period or Fiscal Year.
3. Cash Flow. A cash flow statement.
4. Capital Expenditures. A capital expenditures statement showing, in reasonable detail: (a) capital items in progress, (b) the cost to complete for specific ongoing capital projects, and (c) a schedule of accrued capital expenditures. The capital expenditure statement will be presented for the Fiscal Year that is the subject of the Annual Report.
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EXHIBIT C
SCHEDULE OF INSURANCE COVERAGES
INSURANCE PROCURED BY OPERATOR ·
Operator shall procure and maintain for the duration of the Agreement, the following insurance coverage in connection with the performance of the work hereunder by the Operator, its agents, representatives, or employees.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Lia bility (CGL) (Including Sexual Misconduct Liability):
Insurance Services Office Form CG 00 01, including products and completed operations, with limits of no less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property damage.
3. Umbrella or Excess Liability $5 Million Excess of underlying General Liability and Auto Liability listed above as 1 and 2.
4. Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employers' Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
5. Employment Practices Liability $1,000,000 per Claim
6. Fidelity Bond: Contractor shall maintain Employee Dishonesty and, when applicable, Inside/Outside Money & Securities coverages for property in the care, custody and control of the contractor. Coverage limits shall not be less than $500,000.
If Operator maintains higher limits than the minimums shown above, Owner requires and shall be entitled to coverage for the higher limits maintained.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by Owner, which approval shall not be unreasonably withheld, conditioned or delayed.
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Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. Owner and USOPC, their officers, officials, employees, and volunteers are to be covered as additional insureds on all liability policies with respect to liability arising out of with respect to liability arising out of work or operations performed by or on behalf of the Operator including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Operator. General liability coverage can be provided in the form of an endorsement to the Operator's insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 23 37 forms if later revisions used).
The Endorsement must not exclude Products I Completed Operations.
2. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the Owner.
Claims Made Policies
If any coverage required IS written on a claims-made coverage form:
1. The retroactive date must be shown, and this date must be before the execution date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least three (3) years after completion of contract work.
3. If coverage is canceled or non -renewed, and not replaced with another claims -made policy form with a retroactive date prior to the contract effective, or start of work date, the Operator must purchase extended reporting period coverage for a minimum of ten (10) years after completion of contract work.
4. A copy of the claims reporting requirements must be submitted to Owner for review.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the Owner.
Waiver of Subrogation
Operator hereby agrees, to the extent possible, to cause its insurers to waive rights of su brogation which any insurer of Operator may acquire from Operator by virtue of the payment of any loss.
Operator agrees to obtain any endorsement that may be necessary to effect this waiver of subrogation. The Workers' Compensation policy and all liability policies shall be endorsed with a
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waiver of subrogation in favor of the Owner and USOPC for all work performed by the Operator, its employees, agents and subcontractors.
Verification of Coverage
Operator shall furnish the Owner with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the Owner before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Operator's obligation to provide them. Owner reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by th ese specifications, at any time.
Subcontractors
Operator shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein.
All policies, endorsements, certificates, and/or binders shall be subject to reasonable approval by Owner as to form and content for purposes of confirming compliance with the requirements of this Exhibit C and that the terms and conditions set forth therein are standard. These requirements are subject to amendment or waiver only if so approved in writing by the Owner.
All insurance coverage provided for under this Exhibit C shall otherwise satisfy the general requirements set forth in Sections 13(C), (D) and (E) of the Core Agreement.
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INSURANCE PROCURED BY OWNER
Owner shall procure, at Owner's sole cost and expense, the following insurance coverages and ensure that they are in full force and effect on the Transfer Date and that they remain in full force and effect thereafter throughout the Tenn:
A. Commercial General Lia bility Insurance : A commercial general liability insurance policy on an occurrence basis including coverage for bodily injury, premises-operations products -completed operations, blanket contractual liability, personal injury, and broad form property damage, and including cross liability and severability of interests, and provide at least a limit of $2,000,000 per occurrence and a $5,000,000 general aggregate.
B. Property and Contents Insurance: Property and Contents Insurance in the form, subject to the limits and covering the property set forth in Section l 3(B)(ii) of the Core Agreement.
All insurance coverage that Owner is required to maintain under this Exhibit C shall be effected by policies issued by insurance companies that are of good reputation an d of sound and adequate financial responsibility, having a Best's Rating of A-VIII, or better, or a comparable rating if Best's ceases to publish its ratings or materially changes its rating standards or procedures.
Notwithstanding the foregoing, Owner may satisfy any and all of the requirements set forth in the prior sentence by means of the Owner SIP, provided, however, Owner (i) agrees that the Owner SIP will be maintained at Owner's sole cost and expense, and (ii) covenants that the Owner SIP will pay all valid claims made against it for the insured matters covered by the Owner SIP.
REQUIREMENTS APPLICABLE TO ALL INSURANCE POLICIES
Each Party shall deliver to the other Party duplicate copies of certificates of insurance at the other Party's request with respect to all of the policies of insurance procured pursuant to the requirements of this Exhibit C.
Each policy of insurance maintained in accordance with this Exhibit C, to the extent obtainable, shall specify that such policies shall not be cancelled or materially changed without at least thirty (30) calendar days prior written notice to Owner, Operator and each mortgagee.
To the extent possible, each policy of insurance maintained in accordance with this Exhibit C shall include a mutual waiver of subrogation.
All such policies of insurance shall be written on an "occurrence'' basis unless otherwise approved in writing by both Parties.
Subject to the provisions of Article 15 of the Agreement, a lapse in any insurance coverage required of Operator or Owner during this Agreement shall be a breach of this Agreement by the Party who failed to carry the required insurance.
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EXHIBIT D
DRAFT ANNUAL BUSINESS PLAN
Operator will provide to Owner for review a Draft Annual Business Plan no later than October 1st of each Fiscal Year. The proposed “Annual Business Plan” shall include the “Annual Operating Budget”; “Annual Capital Budget”; and the Five-Year Capital Improvement Plan”.
The Annual Business Plan will include the following information:
1. Strengths, Weaknesses, Opportunities, and Threats (SWOT) Analysis for the upcoming year.
2. Financial Recap of the prior year and projections for the upcoming year.
3. Organizational chart.
4. Priorities and Major Events and Opportunities for the upcoming year.
The Annual Operating Budget will include:
1. Operating Revenues by function (as an example, Housing, Events, Training, Food Service, etc.)
2. Operating Expenses by function and then further into personnel, non-personnel. a. Operator Fee must be shown.
b. Examples of function/category (Facility Operations, Food Service, Housing, etc.)
3. Prior Year’s Revenue and Expenses
The Annual Capital Budget will include the following information:
1. Category
2. Identification of whether it is Major Repair or Capital Improvement
3. Location
4. Project Title
5. Project Purpose
6. Description
7. Estimated Cost/budget
The Five-Year Capital Improvement Plan will include the following for each project:
1. Category
2. Identification of whether it is Major Repair or Capital Improvement
3. Location
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4. Project Title
5. Project Purpose
6. Description
7. Estimated Cost/budget for the five-year period by project and in total
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EXHIBIT E
ARBITRATION PROCEDURE
ANY DISPUTE OR CONTROVERSY THAT RELATES TO THE AGREEMENT THAT HAS NOT BEEN OTHERWISE RESOLVED PURSUANT TO ARTICLE 20 OF THE
AGREEMENT SHALL BE SUBMITTED TO AND SETTLED BY ARBITRATION BEFOR E THE AMERICAN ARBITRATION ASSOCIATION OR ITS SUCCESSOR (THE "SERVICE")
IN ACCORDANCE WITH THE USUAL RULES, REGULATIONS AND PROCEDURES OF
THE SERVICE APPLICABLE TO ANY COMMERCIAL DISPUTE OR CONTROVERSY THEN IN EFFECT, SUBJECT TO THE FOLLOWING PROVISIONS:
(A) THE PARTY SEEKING ARBITRATION SHALL DELIVER A WRITTEN NOTICE OF DEMAND TO RESOLVE DISPUTE (THE "DEMAND") TO THE OTHER PARTY TO SUCH DISPUTE AND TO THE SERVICE. THE DEMAND SHALL INCLUDE A BRIEF STATEMENT
OF THE CONTROVERSY OR DISPUTE AND THE NAME OF THE SINGLE PROPOSED
RETIRED JUDGE OR ATTORNEY FROM THE SERVICE TO DECIDE THE DISPUTE ("ARBITRATOR"). WITHIN TEN (10) DAYS AFTER THE EFFECTIVE DATE OF THE
DEMAND, THE OTHER PARTY AGAINST WHOM A DEMAND IS MADE SHALL DELIVER A WRITTEN RESPONSE TO THE DEMANDING PARTY AND THE SERVICE. SUCH
RESPONSE SHALL INCLUDE A BRIEF STATEMENT OF THE CONTROVERSY OR
DISPUTE, AND SHALL ALSO STATE WHETHER SUCH PARTY AGREES TO THE ARBITRATOR CHOSEN BY THE DEMANDING PARTY . IN THE EVENT THE PARTIES
CANNOT AGREE UPON AN ARBITRATOR, THEN THE SERVICE SHALL SELECT AND NAME A SINGLE ARBITRATOR TO CONDUCT THE HEARING. .
(B) THE LOCALE OF THE ARBITRATION SHALL BE IN ORANGE COUNTY , CALIFORNIA, UNLESS OTHERWISE AGREED TO BY THE PARTIES IN WRITING.
(C) IN THE EVENT THE SERVICE IS NO LONGER IN BUSINESS AND THERE IS NO
COMPARABLE SUCCESSOR, THEN THE PARTIES SHALL AGREE UPON ANOTHER ARBITRATOR. IF THE PARTIES CANNOT AGREE UPON ANOTHER ARBITRATOR, THEN
A SINGLE NEUTRAL ARBITRATOR SHALL BE APPOINTED PURSUANT TO SECTION 1281.6 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE.
(D) THE ARBITRATOR'S POWERS SHALL BE LIMITED AS FOLLOWS:
(i) THE AR BITRATOR SHALL NOT CONSIDER ANYTHING OUTSIDE THE RECORD
UNLESS NOTICE IS GIVEN TO ALL PARTIES WITH THE OPPORTUNITY TO RESPOND TO SUCH MATTERS, (ii)THE ARBITRATOR SHALL HA VE NO POWER TO MODIFY ANY OF THE PROVISIONS OF ·THE AGREEMENT, (iii) THE ARBITRATOR SHALL · PREPARE
AND SERVE A WRITTEN DECISION WHICH DETERMINES THE DISPUTE,
CONTROVERSY , OR CLAIM AND WHICH DESIGNATES THE PARTY AGAINST WHOSE POSITION THE DECISION IS RENDERED, AND (iv) JUDGMENT UPON THE AWARD
RENDERED BY THE ARBITRATOR MAY BE ENTERED IN AN Y COURT HA VINO JURISDICTION THEREOF.
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(F) THE FEES CHARGED BY THE SERVICE SHALL BE D IVIDED EQUALLY
BETWEEN ALL OF THE PARTIES TO SUCH ARBITRATION PROCEEDING, PROVIDED,
HOWEVER, THAT SUCH COSTS, ALONG WITH ALL OTHER COSTS AND EXPENSES,
INCLUDING, WITHOUT LI MITATION, ATTORNEYS' FEES AND/OR EXPERT WITNESS FEES, SHALL BE SUBJECT TO AWA.RD, IN FULL OR IN PART, BY THE ARBITRATOR, IN THE ARBITRATOR'S DISCRETION, TO THE PREV AILING PARTY . UNLESS THE
ARBITRATOR SO AWARDS ATTORNEYS' FEES, EACH PARTY SHALL BE RESPONSIBLE
FOR SUCH PARTY'S OWN ATTORNEYS' FEES AS WELL AS ALL OTHER COSTS AND EXPENSES INCURRED BY SUCH PARTY RELATED TO THE ARBITRATION.
(G) TO THE EXTENT POSSIBLE, THE ARBITRATION HEARING SHALL BE
CONDUCTED ON CONSECUTIVE DAYS, EXCLUDING SATURDAYS, SUNDAYS AND NON-BUSINESS DAYS, UNTIL THE COMPLETION OF THE PROCEEDING.
(H) IN CONNECTION WITH ANY ARBITRATION PROCEEDINGS COMMENCED
HEREUNDER, THE ARBITRATOR AND/OR ANY PARTY SHALL HA VE THE RIGHT TO
JOIN ANY THIRD PARTIES IN SUCH PROCEEDINGS IN ORDER TO RESOLVE ANY
OTHER DISPUTES, THE FACTS OF WHICH ARE RELATED TO THE MATTER SUBMITTED FOR ARBITRATION HEREUNDER.
_______________________ ________________________
INITIALS OF OWNER INITIALS OF OPERATOR
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EXHIBIT F
PROPERTY FACILITIES
Boathouse
Lower Otay Lake access
London supercross track Beijing supercross track
Development BMX track
Supercross trails ·
BMX dirt park
Track and field complex: 400 meter track, eight long-jump pits, and two pole vault runways Throwing field: eleven hammer and dis cus cages, four shot put rings, and two javelin runways
Field hockey complex: turf field hockey pitch and video tower Beach volleyball courts: includes six beach volleyball courts and nets Tennis complex: two tennis courts and hitting wall
Cycling criterium: .9 mile cycling asphalt loop
AT&T Athlete Connections Center: athlete lounge area, includes televisions, gaming devices, furniture, and all other items including in facility Field #2, Field #3, Field #4: natural grass multi-purpose fields Future multi-purpose field: natural grass multi.:purpose field South field: natural grass multi-purpose field
Athlete check-in building
Dining hall
Visitor Center
Weight Room
Track and Field Office
Easton Facilities Cell towers
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EXHIBIT G
USPC CORE AGREEMENT
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EXHIBIT H
OWNER AGREEMENTS
United States Olympic and Paralympic Committee
Easton Archery
City of San Diego (Boathouse Lease)