Are you ready for your sports facility to become a temporary hospital?

If a “worst case scenario” COVID-19 peak threatens your community’s hospital capacity, how can government-owned sports facilities be converted to temporary field hospitals or post-acute care facilities?  This checklist will help you consider how to serve urgent community needs while safeguarding your facility and long-term operations.

Contract framework

• If the team operates its publicly-owned facility via a lease or operating agreement, will the team sublease the facility back to the public as a conduit for the medical provider? Or does the lease or operating agreement allow the team to sublease or license other uses to third parties, like medical providers?  Does the team’s lease or operating agreement need to be amended to enable this use?  Will city council or other legislative action be required?
• Do you have a complete inventory of all the agreements for the facility, including the lease or operating agreement (and all amendments), concession agreements, naming rights/sponsorship agreements, security contracts, and facilities maintenance and operations agreements? You’ll need all of those to understand what approvals are required for this use and whose rights or obligations might need to be waived, or which agreements will need to be amended.
• Which stakeholders must approve changes to existing agreements or be consulted? Beyond any required tenant consents, be aware that lenders, league officials, sponsors, unions, employees and vendors may also have consent or consultation rights.
• If sports play resumes, does the government’s temporary medical use of the facility excuse the tenant team from any obligations to play home games at the facility?

Key contract provisions

Your agreement with the medical provider will need to cover the following:

Term :

• How long do people intend to use the facility for medical care?
• Does it need to be available for a second wave later this year?
• How much notice is required to terminate the medical provider’s term at the stadium, as conditions on the ground change, particularly if the tenant team anticipates returning to play?

Rent:

• Will this be a token amount, or will it be enough to cover facility operating costs?

Insurance and Indemnification:

• If the medical use will be operated by a federal entity, insurance and indemnification will be challenging to negotiate, but subrogation waivers should be elemental. If the medical provider is a hospital system, then insurance requirements should flow down and be much more substantial.  Also, expect challenging discussions around indemnification tenant teams will want for risks related to this use – they may be out of luck if the medical provider is a government entity, but a private hospital system should be able to fully indemnify the tenant.

Premises:

• What areas of the facility will be used by the medical provider? Field or court only?  Stands? Medical training rooms?  Food services?
• Will locker rooms be available for medical staff ? Are there associated security and privacy issues to be addressed, if so?
• Will suites be used for screening rooms, high risk isolation or other uses?
• Are there potential uses of the scoreboard or other electronic/announcing systems that the medical provider could envision using for its operations, and what are the related staffing implications?

Operations:

• Who will be responsible for setting up the medical operations, and for operating the facility during the temporary medical use? Sports facilities have complex building systems – you probably don’t want people unfamiliar with your facility trying to operate it.
• Who will be responsible for maintenance? Does the facility maintenance contract involve union labor, which will require additional discussion?  Will the medical provider provide additional cleaning services, such as decontamination of common use areas (e.g., restrooms, entrance/exit areas, etc.), during use and end of term?
• Who will be responsible for facility security? If the facility’s regular security staff will be used, what training will they receive specifically related to this medical use? Who will provide their PPE?  What new protocols need to be implemented?
• If the stadium kitchens and service areas will be used, who will operate them? What does the concession agreement say about third-party usage of food service areas?  What protocols  need to be implemented to support food prep and service in a social distancing environment?  Who provides PPE and other supplies?
• Who will be responsible if facility staff become ill on the job from coronavirus exposure related to the medical use?

Utilities:

• Will the medical provider cover utility costs, and will additional generators or other utilities be required?

Repairs and Maintenance:

• Who will cover potential damage to the facility caused by medical operations, whether to turf, floor surfaces, plumbing or other building systems?
• Are there any planned or ongoing capital improvements that will need to be rescheduled to accommodate the temporary medical use?
• Are there any tenant lease/operating agreement obligations with respect to capital improvements that must be waived?

Medical Issues:

• Has the medical provider obtained any necessary waivers to operate in a non-hospital setting? How will they address HIPAA obligations?
• Will the medical provider source and rely on its own contracts for medical waste?

Communications

• Who will coordinate media coverage and outreach, visits from elected officials, and other publicity?

Running a medical unit in a sports facility requires planning and teamwork. Make sure you have the players you need, from risk management to legal advisors to architects and building systems experts, to help answer your community’s pandemic response while protecting your facility long-term.

Kevin Kelley is a Denver-based partner with the law firm Husch Blackwell LLP. He leads the firm’s Arena & Stadium Development group.

Andrea Austin is a Denver-based partner with the law firm Husch Blackwell LLP and practices in the firm’s Arena & Stadium Development group.