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18-0101_ORANGE COUNTY HEAD START, INC._License AgreementLICENSE AGREEMENT This License Agreement is made this 1 day of January, 2018 (the "Agreement") by and between the City of San Juan Capistrano, a California municipal corporation (the "City") and the Orange County Head Start, Inc., a California non-profit corporation (hereinafter "Licensee"). RECITALS A. The City is owner of certain real property located at 31485 EI Camino Real (hereinafter "Property"), and as further depicted in Exhibit "A" attached hereto and incorporated herein by reference; and, B. The Licensee currently utilizes the building structure for the purpose of offering educational opportunities to bring about a greater degree of "social competence" to children and their families; and, C. The City has recognized the Head Start Pre -School Program as a valuable service and is supportive of the program's goals and objectives; and, D. The Licensee desires to lease premises in the City of San Juan Capistrano to conduct the Head Start Pre -School Program. TERMS Grant of License:. City hereby grants to Licensee a license to continue to utilize the property at 31485 EI Camino Real for the purpose of operating a Pre -School Head Start Program. 2. Term and Termination. 2.1. The term of this license shall expire on June 30, 2022. 2.2. Notwithstanding term of this Agreement, should City and Licensee elect to terminate this Agreement, written notice of such intent shall be given not later than ninety (90) days prior to June 30 of any such year. Whereupon Licensee shall commence to terminate its operation within such time as to enable it to vacate the premises within the designated time. Licensee shall, in addition, remove all of its equipment and materials, clean the premises, and leave it in a condition substantially similar to that prevailing in the time of the commencement of this Agreement. Page 1 of 13 3. Compensation. City and Licensee agree that the lease amount shall be One Dollar ($1.00) per year. 4. Parking. 4.1. Parking for Licensee will be limited to the adjacent La Sala parking lot and the Library Parking Lot located at the corner of EI Horno Street and EI Camino Real. 4.2. Licensee will assure that all Head Start program participants and staff are required to follow the guidelines for pedestrian and vehicular access as outlined in Exhibit "A." Licensee is required to provide these guidelines to all program participants and enforce them at all times. Licensee will be responsible for adherence by all program participants and staff to these guidelines. Failure to do so will be considered a breach of this agreement. 4.3. At no time may the Licensee block the La Sala parking lot or the Library Parking lot. The blocking of either driveway will be considered a breach of this agreement 4.4. There shall be no overnight parking in either parking lot. Licensee shall ensure that all program participants and staff comply with the prohibition against parking overnight. Any vehicle left in the parking lot by Licensee or program participants will be considered a breach of this agreement. 5. Pedestrian and Vehicle Access. Pedestrian access to the Premises will be from the La Sala Parking Lot on the north side of the Premises. Licensee will assure that all program participants and staff are required to follow the guidelines for pedestrian and vehicular access as outlined in Exhibit "A." Licensee is required to provide these guidelines to all program participants and enforce them at all times. Licensee will be responsible for adherence by all program participants and staff to these guidelines. Failure to do so will be considered a breach of this agreement. & School Bus Access. Licensee is prohibited from providing program participants bus service to the premises as part of the Head Start program. 7. Utilities. Licensee will be responsible for the payment of all utility costs incurred during their occupancy of the Premises. & Entry by Lesser. City reserves the right to enter the Premises at reasonable times for reasonable purposes. No right reserved by City in this section shall be exercised as to interfere unreasonably with Licensee's operation hereunder. 9. Maintenance of Premises. Licensee agrees to assume full responsibility and costs for the maintenance of the Premises within the inside perimeter fencing for the modular complex throughout the term of this Agreement. Licensee will take Page 2 of 13 10 all necessary action to maintain and preserve the Premises in good order and in a safe, healthy, and sanitary condition satisfactory to City and in compliance with all applicable laws. This includes, but is not limited to, the accumulation of any refuse or waste materials which might constitute a fire hazard or a public or private nuisance. City agrees to provide grounds keeping services for the landscaping and lawns outside the perimeter fencing. Insurance. 10.1. Time for Compliance. Licensee shall provide evidence satisfactory to the City that it has secured all insurance required under this Section. 10.2. The Licensee shall take out and maintain, during term of this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. 10.3. Coverage for Commercial General Liability insurance shall be at least as broad as Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent and shall include the following coverage: 10.3.1. Bodily Injury and Property Damage 10.3.2. Personal Injury/Advertising Injury 10.3.3. Premises/Operations Liability 10.3.4. Products/Completed Operations Liability 10.3.5. Aggregate Limits that Apply per Project 10.3.6. Explosion, Collapse and Underground (UCX) exclusion deleted 10.3.7. Contractual Liability with respect to this Agreement 10.3.8. Broad Form Property Damage 10.3.9. Independent Licensees Coverage 10.4. The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement. 10.5. The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement Page 3 of 13 forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. 10.6. The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. 10.7. Minimum Policy Limits Required. Licensee shall maintain Commercial General Liability with a limit of $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage. 10.8. Policy Provisions Required. 10.8.1. Licensee shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Licensee shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Licensee shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. 10.8.2. The Commercial General Liability Policy shall contain a provision stating that 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. 10.8.3. The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Licensee shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Licensee shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims -made policy with a retroactive date subsequent to the effective date of this Agreement. 10.8.4. All required insurance coverages, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City. Page 4 of 13 10.8.5. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Licensee from liability in excess of such coverage, nor shall it limit the Licensee's indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law 10.8.6. Qualifying Insurers. 10.8.6.1. All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements. 10.8.6.2. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 10.8.7. Additional Insurance Provisions 10.8.7.1- The foregoing requirements as to the types and limits of insurance coverage to be maintained by Licensee, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Licensee pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 10.8.7.2. If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Licensee or City will withhold amounts sufficient to pay premium from Licensee payments. In the alternative, City may cancel this Agreement. 10.8.7.3, The City may require the Licensee to provide complete copies of all insurance policies in effect for the duration of the Project. Neither the City nor any of Page 5 of 13 its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement. 10.9. Indemnification. 10.9.1.. To the fullest extent permitted by law, Licensee shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its officials, officers, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, "Claims') in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Licensee, its officials, officers, employees, subcontractors, Licensees or agents in connection with the performance of the Licensee's services, the Project or this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys' fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Licensee's services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Licensee. Licensee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers. 10.9.2. Additional Indemnity Obliqations. Licensee shall defend, with counsel of City's choosing and at Licensee's own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against the City, its officials, officers, employees, agents or volunteers. Licensee shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Licensee shall also reimburse City for the cost of any settlement paid by the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for the City's attorney's fees and costs, including expert witness fees. Licensee shall reimburse the City, its officials, officers, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Licensee's obligation to indemnify shall not be restricted to insurance Page 6 of 13 proceeds, if any, received by the City, its officials, officers, employees, agents and volunteers. 11. Use of Premises. 11.1. As a material consideration for the granting of this lease, Licensee shall permit City or the City of San Juan Capistrano (the "City") to use the Premises and appurtenant facilities for such community purposes as may be determined by the Director of Community Services. Any such use shall, however, not interfere in any way with the Head Start program. 11.2. City shall have the right to use the fenced playground area, owned and provided by Licensee. City shall retain the right to use this fenced playground area; however, this usage shall not interfere with the Head Start program. 11.3. The Premises will be available for public use after the Head Start Pre - School program's regularly scheduled school hours. 11.4. Licensee shall assume no liability for any use of the playground area and equipment by City pursuant to this arrangement. City shall defend, indemnify, and hold harmless Licensee, its elected and appointed officials, employees, and agents from any and all losses, damage, injury, accidents, costs, or expenses (including but not limited to attorneys' fees) arising out of the exercise of City's rights under this section. 12. Annual Performance Report. Licensee shall submit an annual performance report. The report will be submitted to the City Manager in accordance to City Council Policy 014 (Exhibit "B"). The report shall include: 12.1. Disclosure of all activities Licensee has conducted at the premises or with City funds, including meetings, classes, and events. 12.2. The number of citizens receiving benefits and city residency. 12.3. Proof of Licensee's continued nonprofit status. 12.4. An account of Licensee's performance. 12.5. Information on the total revenue and expenses received by Licensee during the reporting period and disclosure of the sources of that revenue. 13. Improvements. Licensee shall not construct any additional improvements to the Premises without prior written consent of City. 14. Termination. Should Licensee default in the performance of any covenant, condition, or agreement contained in this Agreement, and such default is not Page 7 of 13 corrected within sixty (60) days after Licensee receives written notice of default from City, City may terminate this Agreement. 15. No Assignments. Licensee may not assign its rights under this Agreement to any third party. 16. Notices All notices shall be personally delivered or mailed to the below listed addresses, or to such other addresses as may be designated by written notice. These addresses shall be used for delivery of service of process: To City: To Licensee: City of San Juan Capistrano Orange County Head Start, Inc. 32400 Paseo Adelanto 2501 S. Pullman St., Suite 100 San Juan Capistrano, CA 92675 Santa Ana, CA 92705-5511 Attn: City Manager Department Attn: Loyal Sharp 17. 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 18. Dispute Resolution. In the event of a dispute arising between the parties regarding performance or interpretation of this Agreement, the dispute shall be resolved by binding arbitration under the auspices of the Judicial Arbitration and Mediation Service ("JAMS"). 19. Governing Law and Venue. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County. 20. 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. 21. 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. 22. No Assignment without the City's Consent. The Licensee shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or Page 8 of 13 any interest herein without prior written consent of the City. Any attempt to do so shall be null and void, and any assignee, or transferee shall acquire no right or interest by reason of such attempted assignment, or transfer. Unless specifically stated to the contrary in the City's written consent, any assignment, or transfer shall not release or discharge the Licensee from any duty or responsibility under this Agreement. 23. 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. 24, Construction, References, and Captions. 24.1. 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. 24.2. 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. 24.3. Calendar pays. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. 24.4. 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. 24.5. 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. 25. 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 Page 9 of 13 the Licensee or its contractors or subcontractors an agent or contractor of the City. 26. Entire Agreement and Severability. 26.1. 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. 26.2. 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. 27. Authority to Enter Agreement. Licensee has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement. Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. 28. COUnterparts. This Agreement may be signed in counterparts, each of which shall constitute an original Signatures on next page. Page 10 of 13 1 ) SIGNATURE PAGE TO LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND ORANGE COUNTY HEAD START, INC. In witness thereof, the Parties here to have executed this Agreement: City of San Juan Capistrano ORANGE COUNTY HEAD START, INC., A California municipal corporation ATTEST: By: A (- (A M IA MORRIS,` CityYGwk APPROVED AS TO FORM By- JEFPtALKNOER, City Attorney oftw am St By. ftM. AW CA UMl LOYAL S A P, Director of Finance & Administration Page 11 of 13 Exhibit A Dear Head Start Parents/Guardians: EI Camino Real can be a busy street which provides access not only to the Head Start facility, but also to the Mission Hills neighborhood, San Juan Elementary School, and the Mission School. In order to provide safe and convenient access to the Head Start facility, the City of San Juan Capistrano requires that all parents who bring their children to Head Start comply with the following access requirements: Parents/Guardians who walk their children to the fa_cili For parents of families living west of Camino Capistrano and who walk their children to Head Start, you must use Camino Capistrano to the tennis courts and then the existing walkway along the side and rear of the tennis courts up the slope to the library, then left of the library and front of the Head Start facility. You may also use Camino Capistrano to Acjachema to El Camino Real. Parents are not permitted to walk along La Zanja to EI Camino Real to access Head Start. Parents/Guardians who drive their children to the facility: For parents who drive their children to Head Start, you may park in the public parking lot across the street from the library on EI Camino Real and EI Horno Street and walk your children across the street to the facility. You may also park in the existing parking lot between Head Start and the Library if parking is available. You may not park, stop, load or unload in the aisle. This is a marked fire lane and you will receive a parking citation. Parking and/or stopping is not permitted along EI Camino Real in front of Head Start. Parking is permitted in marked spaces along EI Camino Real in front of the Library. Parking is also permitted along EI Camino Real across the street from the Library/Head Start. Violations of these requirements may jeopardize the ability of Orange County Head Start to continue operating the program at this current location. Please help us maintain a safe environment for the neighborhood and our children by complying with these requirements. Thank you, Orange County Head Start, Inc. Page 12 of 13 Exhibit B Council Policy 014 Page 13 of 13 CITY OF SAN JUAN CAPISTRANO Subject: NONPROFIT PUBLIC BENEFIT CORPORATIONS COUNCIL POLICY Effective Policy Page Date Number 1 of 1 2/5/02 014 This policy is hereby created as a means to ensure that non-profit public benefit corporations that enter into, and maintain, any agreements or relationships, with the City of San Juan Capistrano, where the City provides a direct subsidy, or leases property at no rent or minimal rent levels to the non-profit organization, are not organized for the private gain of any person. The subject organization must be a non-profit organization with headquarters or a branch office located within the City of San Juan Capistrano. The subject organization must: Be organized under the Nonprofit Public Benefit Corporation Law for charitable purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code. 2. Not carry on any other activities not permitted to be carried on by a corporation exempt from federal income tax under Section 501(c)(3) of the Internal Revenue Code. 3. Not dedicate any part of its net income or assets to the benefit of any director, officer or member of said corporation or to the benefit of any private person. 4. Submit a semi-annual report describing how the agreed upon services or programs were rendered during the performance reporting period. The report must include: 1. Number of citizens receiving benefits; 2. The city of residence of citizens receiving benefits; 3. Proof of the organization's continued nonprofit status; 4. Disclosure of all activities the organization has conducted on City property, or with City funds; 5. An account of organization's performance as established in agreement with the City. Such performance measurement standards shall be negotiated at the time agreement is entered into, and reflected in said agreement. The agreement shall also identify to whom the report is to be addressed and establish the dates when it is due to the City. 6. Information on the total revenue received by the organization during the reporting period and disclosure of the sources of that revenue. Failure to submit to the City the required performance reports shall make the organization ineligible for a continued financial relationship, agreement, etc. with the City of San Juan Capistrano. EXHIBIT B