17-0919_VETERANS OF FOREIGN WARS_License AgreementLICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND VETERANS OF FOREIGN WARS (VWF) FOR THE NYDEGGER BUILDING,
LOCATED AT 31421 LA MATANZA STREET, SAN JUAN CAPISTRANO
PARTIES AND DATE
This License Agreement ("Agreement") is entered into as of this 19th day of September,
2017 ("Effective Date") by and between the City of San Juan Capistrano, a California
municipal corporation (the "City") and Veterans of Foreign Wars, a nonprofit
organization (the "Licensee"). City and Licensee are sometimes hereinafter individually
referred to as "Party" and hereinafter collectively referred to as the "Parties."
RECITALS
A. Licensee is a nonprofit organization dedicated to providing quality social and
organization services to a targeted population of San Juan Capistrano.
B. The City is the owner of the Nydegger Building, located at 31421 La Matanza
Street, San Juan Capistrano, and Licensee desires to utilize a portion of the
Nydegger Building to conduct Licensee's business meetings.
C. Licensee's business meetings occur the First Wednesday of every month
between 6:45 p.m. to 8:30 p.m.
D. Licensee desires to use the Portion of the Nydegger building the First
Wednesday of every month between 6:30 p.m. to 8:45 p.m. to allow for set up
and break down.
E. The Parties desire to enter into this Agreement to allow the Licensee to use a
portion of the Nydegger Building for the above -stated purpose in accordance with
the terms and conditions set forth in this agreement.
TERMS
1. Grant of License.
1.1. Scope. The City grants to Licensee a license to use a portion the
Nydegger Building located at 31421 La Matanza Street, San Juan
Capistrano, San Juan Capistrano (herein after "Property") as described
below:
1.1.1. Licensee is only granted a license to use the Property on the First
Wednesday every month between 6:30 p.m. to 8:45 p.m. for the
purposes of conducting its Business meeting. All set up and break
down shall take place during the above referenced times.
1.1.2. Licensee shall comply with the regulations for use of the Property
specifically set forth in Exhibit "A" and incorporated herein by
reference.
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1.1.3. The portion of the Nydegger Building, which is the subject of this
License agreement is specifically described in the Site Plan
attached as Exhibit "B" and incorporated herein by reference.
1.2. Other Uses. The Licensee may not use the Property for any other purpose
or business not described in Section 1.1 (Scope) without obtaining the
City's prior written consent
2. Term. This Agreement shall be effective for two (2) years commencing on the
Effective Date, except as otherwise provided in this Agreement. This Agreement
may be extended for up to a maximum of three (3) additional 1 year terms, upon
the mutual written agreement of both parties.
3. FacilitV Use Fees. In consideration of Licensee's nonprofit and its social services
to the City, the City agrees to provide a waiver of fees for the use of the Property.
4. Utilities. The City will be responsible for utilities and utility costs, except for
telephone and internet services.
5. Condition of the Property, Maintenance, Repairs and Improvements.
5.1. Acceptance of Condition. Licensee accepts the Property in its present "as
is" condition upon execution of this Agreement, and agrees to assume all
further liability arising out of the condition of the property.
5.2. Maintenance and Repair by Licensee. Licensee agrees, at Licensee's
expense, to use reasonable care keep the Property clean of debris, and
keep the Property in good condition and repair at all times, reasonable
wear and tear expected.
5.3. Maintenance and Repair by the City. A duly authorized representative of
City may enter upon the Property at a reasonable time for the purposes of
inspection and to perform any necessary maintenance or repair for which
the City is responsible, or to carry out any municipal function.
5.3.1. City shall be responsible for any major structural repairs to the
premises, including such items as leaking roofs, plumbing, and
related improvements, providing that the damage to be repaired
has not been caused directly by Licensee's use of the premises.
City shall also accept responsibility for following items:
5.3.1.1. Exterior Painting
5.3.1.2. Exterior Lighting
5.3.1.3. Roofing
5.3.1.4. Windows and Doors (excluding screen doors)
5.3.1.5. Exterior Wall Repair
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5.3.1.6. HVAC
5.3.1.7. Plumbing
6. Licensee obligations.
6.1. Licensee shall, at all times, keep City advised of the name, address, and
telephone number of the person responsible for the operation of the
aforesaid facility.
6.2. Licensee shall, at all times, take and maintain the utmost caution and care
in every respect of its operation and shall observe and maintain the
highest standard of safety.
6.3. Licensee must ensure the facility is locked after use.
6.4. Licensee shall be responsible to turn off the coffee maker, clean all coffee
pots used during the meeting, and turn off all lights, ceiling fans and the
HVAC.
6.5. At no time may alcohol be served, sold or consumed on the Property.
6.6. On or before the termination or expiration of this Agreement, the Licensee
shall remove all of Licensee's personal property from the Property and
shall surrender possession of the Property to the City in good order and
repair to the satisfaction of the City, normal wear and tear excepted.
7. Default.
7.1. In the event of a default by the Licensee, the City shall give the Licensee
thirty (30) days' written notice to cure the default. The notice shall specify
in reasonable detail the nature and extent of the default. If the default is
not cured by the Licensee within the 30 days' notice period, then the City
may immediately terminate this Agreement.
8. Indemnification.
8.1. Indemnification of the City by the Licensee. The Licensee shall defend,
indemnify and hold the City, its officials, officers, employees, and agents
(the "Indemnified Parties") free and harmless from any and all liability from
loss, damage, or injury to property or persons, including wrongful death, in
any manner arising out of or incident to acts, omissions, and/or operations
by the Licensee, its officials, officers, personnel, employees, contractors,
and/or subcontractors as well as its contractors' and/or subcontractors'
officials, officers, employees, and agents. Further, the Licensee shall
defend at its own expense, including attorneys' fees, the Indemnified
Parties in any legal action based upon such acts, omissions and/or
operations.
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8.2. The Licensee's Obligations. The Licensee's obligations under this Section
9 (Indemnification) shall apply to all damages and claims for damages of
every kind suffered, or alleged to have been suffered, regardless of
whether or not the City has prepared, supplied, or approved any plans or
for the uses allowed by this Agreement, and regardless of whether or not
such insurance policies shall have been determined to be applicable to
any of such damages or claims for damages.
8.3. The City's Rights. The City does not and shall not waive any rights against
the Licensee that the City may have under the indemnification provision in
this Section 9 (Indemnification) because of the City's acceptance of any
security deposits or insurance policies.
8.4. Survival. The indemnification provision in this Section 9 (Indemnification)
shall survive the termination or expiration of this Agreement.
9. Insurance.
9.1. Coverage and Amount. The Licensee agrees to maintain in full force
during the term of this Agreement, at Licensee's own expense, a policy of
comprehensive liability insurance, including property damage, which will
insure Licensee and the City against liability for injury to persons, damage
to property, and death of any person occurring in or about the Property.
The City shall be named as an additional insured on the policy. Other
terms and conditions, including cancellation provisions and endorsement
forms, shall be reviewed and approved by the Office of the City Attorney.
The insurance shall be not less than the following minimum amounts:
Commercial General Liability $1,000,000 per occurrence/$2,000,000
aggregate for bodily injury, personal
injury, and property damage
Copy of Policy and Endorsements. The Licensee shall provide the City
with a copy of the policy, including an endorsement that states that the
policy will not be cancelled except after ten (10) days' notice in writing to
the City. The policy shall name the City as Additional Insured and an
endorsement shall be included. The policy shall contain a provision
stating that the Licensee's policy is primary insurance and that any
insurance, self-insurance or other coverage maintained by the City or any
named insureds shall not be called upon to contribute to any loss.
10. Termination. City shall have the right to terminate this Agreement without cause
by giving ninety (90) days advance written notice of termination to Licensee.
11. Attorneys' Fees. If any legal action or proceeding arising out of or relating to this
Agreement is brought by either party to this Agreement, the prevailing party shall
be entitled to receive from the other party, in addition to any other relief that may
be granted, the reasonable attorneys' fees, costs, and expenses incurred in the
action or proceeding by the prevailing party.
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12. Governing Law and Venue. This Agreement shall be governed by the laws of the
State of California. Venue shall be in Orange County.
13_ Waiver. The City's failure to insist upon strict compliance with any provision of
this Agreement or to exercise any right or privilege provided herein, or the City's
waiver of any breach hereunder, shall not relieve the Licensee of any of its
obligations hereunder, whether of the same or similar type. The foregoing shall
be true whether the City's actions are intentional or unintentional. Further, the
Licensee agrees to waive as a defense, counterclaim, or setoff any and all
defects, irregularities, or deficiencies in the authorization, execution, or
performance of this Agreement as well as any laws, rules, regulations,
ordinances, or resolutions of the City with regard to this Agreement.
14. Supplement, Modification, and Amendment. No supplement, modification, and/or
amendment of this Agreement shall be binding unless executed in writing and
signed by both Parties.
15. Assignment or Transfer.
15.1. No Assiqnment without the City's Consent. The Licensee shall not assign,
hypothecate, or transfer, either directly or by operation of law, this
Agreement or any interest herein without prior written consent of the City.
Any attempt to do so shall be null and void, and any assignee,
hypothecatee, or transferee shall acquire no right or interest by reason of
such attempted assignment, hypothecation, or transfer. Unless
specifically stated to the contrary in the City's written consent, any
assignment, hypothecation, or transfer shall not release or discharge the
Licensee from any duty or responsibility under this Agreement.
15.2. Merger. The transfer of a majority of the ownership interests in the
Licensee, however accomplished, and whether in a single transaction or in
a series of related or unrelated transactions, or the merger of the Licensee
into any other entity in which the Licensee is not the surviving entity, or the
sale of all or substantially all of the Licensee's assets, shall be deemed an
assignment of the Licensee's rights hereunder subject to the requirements
of Section 16.1 (No Assignment without the City's Consent).
16. No Relocation Benefits. This License is not intended to convey a property
interest but to permit the Licensee to use the property as provided for herein. The
Licensee acknowledges the rights granted by State and/or Federal Relocation
Assistance Laws and regulations and, notwithstanding any other provision of this
License, expressly waives all such present and future rights, if any, to which the
Licensee might otherwise be entitled from the City with regard to this License and
the business operated on the property. The Licensee shall not be entitled to
relocation assistance, relocation benefits, or compensation for loss of goodwill
upon the termination of this License.
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17. Construction, References, and Captions.
17.1. Simple Construction. It being agreed the Parties or their agents have
participated in the preparation of this Agreement, the language of this
Agreement shall be construed simply, according to its fair meaning, and
not strictly for or against any Party.
17.2. Section Headings. Section headings contained in this Agreement are for
convenience only and shall not have an effect in the construction or
interpretation of any provision.
17.3. Calendar Days. Any term referencing time, days, or period for
performance shall be deemed calendar days and not work days.
17.4. References to the City. All references to the City shall include, but shall
not be limited to, City Council, City Manager, City Attorney, City Engineer,
or any of their authorized representatives. The City shall have the sole and
absolute discretion to determine which public body, public official or public
employee may act on behalf of the City for any particular purpose.
17.5. References to the Licensee. All references to the Licensee shall include all
officials, officers, personnel, employees, agents, contractors, and
subcontractors of Licensee, except as otherwise specified in this
Agreement
18. Relationship Between the Parties. The Parties hereby mutually agree that neither
this Agreement, nor any other related entitlement, permit, or approval issued by
the City for the Property shall operate to create the relationship of partnership,
joint venture, or agency between the City and the Licensee. The Licensees'
contractors and subcontractors are exclusively and solely under the control and
dominion of the Licensee. Nothing herein shall be deemed to make the Licensee
or its contractors or subcontractors an agent or contractor of the City.
19. Notices. All notices to be given hereunder shall be in writing and may be made
either by personal delivery or by registered or certified mail, postage prepaid,
return receipt requested. Mailed notices shall be addressed to the parties at the
addresses listed below, but each party may change the address by written notice
in accordance with this Section 16 (Notices). Notices delivered personally will be
deemed communicated as of actual receipt; mailed notices will be deemed
communicated as of two (2) days after mailing.
To City:
City of San Juan Capistrano
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
Attn: Gil Leon
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To Licensee:
Veterans of Foreign Wars
31877 Del Obispo Street, Suite 118-184
San Juan Capistrano 92675
Attn: Joseph Love
20. Entire Agreement and Severability.
20.1. Entire Agreement. This Agreement contains the entire Agreement of the
parties with respect to the subject matter hereof, and supersedes all prior
negotiations, understandings or agreements, either written or oral, express
or implied.
20.2. Severability. The invalidity in whole or in part of any provision of this
Agreement shall not void or affect the validity of any other provision of this
Agreement.
21. Bindinq Effect.
21.1. The Parties. Each and all of the terms and conditions of this Agreement
shall be binding on and shall inure to the benefit of the Parties, and their
successors, heirs, personal representatives, or assigns.
21.2. Successors and Assigns. This Agreement shall be binding on the
successors and assigns of the Parties.
21.3. Not Authorization to Assign. This Section 21 (Binding Effect) shall not be
construed as an authorization for any Party to assign any right or
obligation under this agreement other than as provided in Section 15
(Assignment or Transfer).
Signatures on next page.
SIGNATURE PAGE TO LICENSE AGREEMENT
BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO
AND VETERANS OF FOREIGN WARS
In witness thereof, the Parties here to have executed this Agreement:
City of San Juan Capistrano
A California municipal corporation
KE4FAY
Mayor
ATTEST:
By:
MARIA MORRIS,!
City Clerk
APPROVED AS TO FORM:
By:
JEFF BALL
IGER,
City Attorney
VETERANS OF FOREIGN WARS
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JOS 1�0
Com ander
EXHIBIT "A"
REGULATIONS FOR USE OF THE NYDEGGER BUILDING
IN THE OLD FIRE -STATION COMPLEX
VFW - SERRA POST 3801
Regulations for Use of the Property:
• Type of activity to take place at the Property is a gathering of Veteran Foreign
Wars members and potential members for meeting on a monthly basis.
The maximum number of persons to be in the Property at one time is one hundred
and fifty (150) persons in a theatre style set up and 105 in a banquet style set up.
Storage of equipment and supplies is NOT permitted on the Property,
• Hours of use: The first Wednesday, of every month during the hours of 6:30 p.m. -
8:45 p.m. All set up and break down shall take place during the above referenced
times.
• The Licensee shall not utilize the Property during the Swallows Day Parade day
• Alcohol is prohibited at all times on the Property or anywhere within the Old Fire
Station Complex.
Licensee shall not utilize the Property for any uses other than those specifically
established in the License.
A-1
EXHIBIT "B"
SITE PLAN
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