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18-0418_VETERANS OF FOREIGN WARS_Memorandom of UnderstandingMEMORANDUM OF UNDERSTANDING BETWEEN THE CITY SAN JUAN CAPISTRANO AND VETERANS of FOREIGN WARS FOR THE VETERANS DAY AND MEMORIAL DAY EVENTS AND SUPPORT SERVICES nnThi EMORANDUM OF UNDERSTANDING (MOU) is made and entered into this ay of April 2018, by and between the City of San Juan Capistrano, a California municipal corporation (thereinafter referred as "City"), and the Veterans of Foreign Wars (thereinafter referred to as "VFW").The City and VFW are referred to individually as a "Party" and collectively as the "Parties." RECITALS A. VFW is a nonprofit organization providing support to speed rehabilitation of the nation's disabled and needy veterans, assist veterans' widows and orphans and the dependents of needy or disabled veterans, and promote Americanism by means of education in patriotism and by constructive service to local communities. B. A majority of VFW's members reside within the City of San Juan Capistrano. C. VFW has offered to provide annual Veterans and Memorial Day events within the City of San Juan Capistrano. D. The City supports the Community Services provided by VFW. E. The Parties desire to enter into the MOU to establish the duties and responsibilities of the City and VFW related to the annual Veterans Day and Memorial Day events. NOW, THEREFORE, LET IT BE MUTUALLY AGREED TO BY CITY AND VFW AS FOLLOWS: TERMS Term. This MOU shall remain in effect until April 17, 2019 unless terminated earlier in accordance with this MOU. This MOU may be extended for up to a maximum of four (4) additional 1 year terms, upon the mutual written agreement of both parties. 2. Scope of Collaboration. 2.1. VFW Responsibilities. VFW agrees to provide the following at no cost to the City: 2.1.1. VFW shall provide the organization and coordination of the following events annually: 2.1.1.1. Veterans Day event. 2.1.1.2. Memorial Day event. 2.1.2. VFW shall provide participants to volunteer at the Veterans Day and Memorial Day events within the City of San Juan Capistrano. 2.1.3. VFW shall provide a meeting location for volunteers to meet and coordinate the Veterans and Memorial Day events. 2.1.4. VFW shall provide fliers and informational materials about the Veterans Day and Memorial Day events. 2.1.5. VFW shall provide and maintain volunteer release forms in compliance with City's policies. The City will not be deemed to employ, contract with, or have any responsibility for anyone who volunteers or participates in such programs and events provided by VFW to the public. 2.1.6. VFW shall submit an annual performance report to the Director of Community Services. The annual performance report shall be due June 1 of each year during the term of this MOU. The annual performance report shall include the following: 2.1.6.1. Disclosure of all activities VFW has conducted in relation to the annual Veterans Day and Memorial Day events. 2.1.6.2. The donations that VFW received from those activities. 2.1.6.3. Benefits members of the public received from activities. 2.1.6.4. Proof of VFW's continued non-profit status, 2.1.6.5. Information on the total revenue received. 2.1.7. VFW shall work in collaboration with City staff to coordinate events taking place on City grounds or in City facilities. Necessary applications, permits and forms must be submitted in compliance with the City's current policies. 2.1.8. VFW shall coordinate with City staff and shall comply with regulations and procedures established by the City for special activities. 2.2. City Responsibilities. 2.2.1. City shall provide to VFW at no cost the use of three (3) City tables, fifty (50) chairs, podium and the use of a sound system for the Veterans Day and Memorial Day events. The Delivery and pick-up of the above equipment shall be provided by City at no cost to VFW. 2.2.2. City shall allow the use of Veterans Park for the purposes of hosting the Veterans Day and Memorial Day events. 2.2.3. The City Manager shall assign a liaison to act as the primary contact for VFW. 3. Indemnity. 3.1. To the fullest extent permitted by law, VFW 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 VFW, its officials, officers, employees, subcontractors, VFWs or agents in connection with the performance of the VFW's services, this MOU, 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 VFW'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 VFW. VFW's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers . 3.2. Additional Indemnity Obligations. VFW shall defend, with counsel of City's choosing and at VFW'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. VFW 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. VFW 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. VFW 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. VFW's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents and volunteers. 4. Insurance. 4.1. Time for Compliance. Licensee shall provide evidence satisfactory to the City that it has secured all insurance required under this Section. 4.2. 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. 4.3. 4.4. 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: 4.4.1. Bodily Injury and Property Damage 4.4.2. Personal Injury/Advertising Injury 4.4.3. Premises/Operations Liability 4.4.4. Products/Completed Operations Liability 4.4.5. Aggregate Limits that Apply per Project 4.4.6. Explosion, Collapse and Underground (UCX) exclusion deleted 4.4.7. Contractual Liability with respect to this Agreement 4.4.8. Broad Form Property Damage 4.4.9. Independent Licensees Coverage 4.5. 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. 4.6. The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. 4.7. The additional insured coverage under the policy shall be "primary and non-contributory" and will not seek contribution from the City's insurance or self-insurance and shall be at least as broad as CG 20 01 04 13, or endorsements providing the exact same coverage. 4.8. 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. 4.9. 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. 4.10. Policy Provisions Required 4.10.1. 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. 4.10.2. 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. 4.10.3. 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 termination of 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. 4.10.4. 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. 4.10.5. 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. 4.11. Qualifying Insurers 4.11.1. All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 4.11.2. 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. 4.12. Additional Insurance Provisions 4.12.1. 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. 4.12.2. 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. 4.12.3. The City may require the Licensee to provide complete copies of all insurance policies in effect for the duration of the Agreement. 4.12.4. Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement 5. Covenant Against Discrimination. VWF covenants for itself, its heirs, executors, assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this MOU. VWF further covenants and agrees to comply with the terms of the Americans with Disabilities Act of 1990 (42 U.S.C. §12101 secs.) as the same may be amended from time to time. 6. Termination. City and VWF reserve the right to terminate this MOU at any time, with or without cause, upon ninety (90) days written notice to the other party . 7. Attorneys' Fees. If any legal action or proceeding arising out of or relating to this MOU is brought by either party to this MOU, 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. 8. Governing Law and Venue. This MOU shall be governed by the laws of the State of California. Venue shall be in Orange County. 9. Waiver. The City's failure to insist upon strict compliance with any provision of this MOU or to exercise any right or privilege provided herein, or the City's waiver of any breach hereunder, shall not relieve VFW 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 VFW agrees to waive as a defense, counterclaim, or setoff any and all defects, irregularities, or deficiencies in the authorization, execution, or performance of this MOU as well as any laws, rules, regulations, ordinances, or resolutions of the City with regard to this MOU. 10. Supplement, Modification and Amendment. No supplement, modification, and/or amendment of this MOU shall be binding unless executed in writing and signed by both Parties. 11. Construction References and Captions. 11.1. Simple Construction. It being agreed the Parties or their agents have participated in the preparation of this MOU, the language of this MOU shall be construed simply, according to its fair meaning, and not strictly for or against any Party. 11.2. Section Headings. Section headings contained in this MOU are for convenience only and shall not have an effect in the construction or interpretation of any provision. 11.3. 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. 12. Relationship Between the Parties. The Parties hereby mutually agree that neither this MOU, nor any other related entitlement, permit, or approval issued by the City for the City Facilities shall operate to create the relationship of partnership, joint venture, or agency between the City and VFW. 13. 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 18 (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 16. Entire Agreement and Severabilitu. To Veterans of Foreign Wars : Veterans of Foreign Wars VFW Serra Post 3801 31878 Del Obispo St., Suite 118-184 San Juan Capistrano, CA 92675 Attn: Joseph Love, Commander 16.1. Entire Agreement. This MOU 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. 16.2. Severability. The invalidity in whole or in part of any provision of this MOU shall not void or affect the validity of any other provision of this MOU. In witness thereof, the Parties here to have executed this MOU: City of San Juan Capistrano Veterans of Foreign Wars . A California municipal corporation ATTEST' By:rr MARI"ORRIS, City Clerk APPROVED AS TO FORM: By: JEFF, AL01\16ER, City Attorney