Loading...
18-0821_CREER COMUNIDAD Y FAMILIA_License Agreement LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE CREER COMUNIDAD Y FAMILIA PARTIES AND DATE This License Agreement ("Agreement") is entered into as of this ` day of August, 2018 ("Effective Date") by and between the City of San Juan Capistrano, a California municipal corporation (the "City") and CREER Comunidad y Familia a California nonprofit corporation (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 California nonprofit corporation dedicated to develop the Cultural, Educational and Social potential of Mexican/Latino children, youth,families and communities so that they may become citizens/leaders and contributors to a prosperous and vibrant South Orange County Community. B The City currently leases property known as Stone Field, which includes the Stone Field Community Building, located at 31322 Camino Capistrano, San Juan Capistrano (the "Stone Field Community Building"), from Capistrano Unified School District ("CUSD Lease Agreement"). CUSD Lease Agreement shall expire on May 18, 2022 unless otherwise extended pursuant to the terms of the CUSD Lease Agreement. C. Licensee desires to utilize, for administrative purposes, a portion of the Stone Field Community Building. D. City desires to make available a portion of the Stone Field Community Building to Licensee for such purposes on a temporary basis under the terms and conditions set forth in this License. TERMS 1 . Grant of License 1.1. City hereby grants a License to Licensee for the purpose of allowing Licensee to utilize a portion of the Stone Field Community Building, for administrative purposes only. 1.2. The portion of the Stone Field Community Building, which is the subject of this License, is specifically described in the site plan attached hereto as "Exhibit A" and incorporated herein by this reference ("License Area"). The Stone Field Community Building, including any parking areas, is referred to herein as the "Site." 1.3. Under this License, Licensee has the right and sole discretion to deal with and manage members of the public who enter the License Area. 1.4. Licensee represents that it is recognized by the State of California as a 501(c)(3) non-profit organization. Licensee understands that its non-profit status is a substantial inducement for the City to grant this License. Licensee agrees to maintain its non-profit status as a condition of this License. Failure to maintain this non-profit status shall be considered a breach of this License, subject to the termination provisions set forth in Section 12 herein. 2: Allowable Uses 2.1. Allowable uses include the following: 2.1.1. Administrative office hours shall be Monday through Sunday, 8:00 a.m. - 9:00 P.M. 2.1.2. There shall be a maximum of four(4)workstations in this area. 2.1.3. The maximum number of persons to be in this area at any one time is ten (10). 2.1.4. The types of activities to take place at this site are administrative/office functions. 2.1.5. Storage of equipment and supplies are permitted only within the interior of the office/storage area. 2.1.6. Applicant shall have access to adjacent restroom facilities. 2.2. Licensee shall not utilize the property for any other uses than those specifically established in this License. 3. Conditions of Operation 3.1 Licensee's hours of operation shall be limited to 8:00 a.m. to 9:00 p.m., Monday through Sunday. 3.2. Licensee shall, at all times, keep City advised of the name, address, and telephone number of the person responsible for Licensee's operations on the License Area. 3.3. Licensee shall, at all times, keep City advised of the name and telephone number(s) of two persons who can be contacted in the event of an emergency. 3.4. 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. 3.5. Licensee shall submit an annual performance report, due December 1 of each year, to the Community Services Director, in accordance with City Council Policy 014. The report shall include: 3.5.1. Disclosure of all activities the Licensee has conducted both at the License Area and in the community on an outreach basis. 3.5.2. The number of citizens receiving benefits from activities, including meetings, classes, events, services. 3.5.3. The city(s) of residence of citizens receiving benefits from activities, including meetings, classes, events, services. 3.5.4. Description of any routine maintenance of the License Area. 3.5.5. Proof of the Licensee's continued non-profit status. 3.5.6. Information on the total revenue received by the Licensee during the reporting period, and disclosure of the sources of that revenue. 3.6. Parking spaces adjacent to the Site shall be shared with other users of the Stone Field Community Building (Capistrano Unified School District). No parking spaces shall be reserved for Licensee. City shall retain the right to exclusive use of parking spaces for City business at any time. 3.7. All parking must be done in a legal manner(i.e. no double parking). 3.8. Licensee shall be responsible for ensuring that attendees park in the permitted areas in a legal manner. 3.9 Licensee shall be responsible for all furniture, equipment, and supplies for the License Area. All items brought in by Licensee shall be removed at the end of the term of the License, including any applicable holdover period. Subject to the holdover period set forth in Section 4 of this License, City does not grant permission for items to remain in the facility once the term of the License ends. 3.10. 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. 3.11. City shall issue up to two (2) keys to the individuals whose names are provided by Licensee; all keys must be signed-out in accordance with City procedure. Licensee shall ensure that only the individuals issued the key shall be authorized to use the key. When a person leaves Licensee's program, Licensee shall return the key to City so that the person's name can be removed from City records. Licensee shall not re-issue any key, or allow any sharing or borrowing of the City issued key. 3.12 The keys issued shall not be copied by Licensee. Additional keys will be issued at the discretion of the City and shall incur a fee of $50.00. Lost keys will be replaced for a fee of$250.00. 3.13 Licensee agrees and understands that Capistrano Unified School District (CUSD) reserves the right to allow groups and individuals to utilize the adjacent meeting room. 4. Term of License 4.1. The term of the License shall be two (2) years from the Effective Date. The License may be renewed for two (2) additional one (1) year terms, upon the mutual written agreement of both parties. 4.2. In addition, Licensee is hereby granted a 60-day holdover period with respect to the term, wherein, Licensee may occupy the License Area for up to 60 days to accommodate any need Licensee may have to move its operations to another location. During this holdover period, Licensee shall continue to pay a monthly fee in the amount set forth in Section 6 of this License. 4.3. Licensee acknowledges the CUSD Lease Agreement shall expire on May 18, 2022 unless extended pursuant to the terms of the CUSD Lease Agreement. Parties agree that any extension exercised under this agreement or the holdover period shall not extend beyond the term of the CUSD Lease Agreement. Should the CUSD Lease Agreement terminate with the City on May 18, 2022, Licensee hereby agrees that it shall vacate the License Area prior to May 17, 2022, and this License Agreement shall immediately terminate on the date the Licensee provides the City notice of the vacation of the Licensee Area. City agrees that it will provide Licensee with as much notice as possible, but Parties agree that that said notice may be less than 60-days. 5. Utilities 5.1. Licensee shall be responsible for the cost of all utility services required in conducting its operations in the License Area authorized under this License. Gas, water and electrical fees are part of the monthly fee set forth in Section 6 of this License. Telephone, television, cable, security or alarm services or Internet services and any other expenses related to these services are the sole responsibility of Licensee. City shall not require sub-metering of the facility. 5.2. Licensee shall be responsible for opening and closing the License Area for installation, repairs, and/or removal of these services. City staff will not meet vendors for delivery, installation, repair, or removal appointments. 6. Fees 6.1. In consideration of the foregoing, Licensee shall pay to the City a monthly fee in the amount of forty-nine dollars and zero cents ($49.00)and a twenty-five dollar($25.00) monthly utility fee (Section 5), totaling seventy-four dollars and zero cents ($74.00) per month. 6.2. Licensee's monthly fees shall be paid upon License execution of the Agreement and on the first of each month thereafter. 6.3. Late Fee. Licensee's failure to pay the monthly fee by the 10th day of the month will result in a late charge of 10%of the monthly fee. Licensee acknowledges that late payment by Licensee to Licensor of any sums due hereunder will cause Licensor to incur costs not contemplated by this License, the exact amount of such costs being extremely difficult and impracticable to fix. Such costs include, without limitation, processing and accounting charges. The parties agree that this late charge represents a fair and reasonable estimate of the costs that Licensor will incur by reason of late payment by Licensee. 7. Maintenance;._Repairs, and lmnr.ovem(,nts 7.1. Restoration Requirement. City retains the right to require that Licensee restore the License Area to its condition prior to Licensee's occupancy when Licensee vacates the License Area. If Licensee does not restore the License Area to the original condition upon vacating the Site, Licensee will be provided (within thirty [30] days of vacating) with a written explanation of restoration expenses, along with an invoice for these expenses. Licensee shall pay this invoice within sixty (60) days of the postage date. Further, any damage resulting from Licensee's use of the License Area shall also be corrected at Licensee's sole cost and expense. 7.2. Repairs and Damages. City shall be responsible for any major structural repairs to the Site, 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 Site. City shall accept responsibility for the following items: exterior painting, exterior lighting, roofing, windows and doors (excluding window treatment and screen doors), exterior wall repair, HVAC, plumbing. If the Site is unusable due to damage or destruction, the monthly fee shall be suspended until the use of the License Area is restored. 7.3. Custodial Responsibilities. Licensee shall be responsible for all arrangements and costs to provide custodial service to the License Area. City shall be responsible for all arrangements to provide custodial service for the public restrooms on the Site. Licensee and/or the custodial staff shall be responsible for placing rubbish and recyclable materials in the appropriate locked dumpster located on the Site. They shall further be responsible for locking that dumpster after each use. This dumpster shall be kept locked at all times when not in use. 7.4. Tenant Improvements. Licensee shall submit to the Community Services Department, in writing, any desired changes/improvements to the License Area. This shall include any modifications to existing walls, ceiling, windows, flooring, doors, lighting, interior, exterior, etc. Licensee must receive written approval from City prior to making any improvements or modifications to the License Area. All improvements and their maintenance shall be the financial responsibility of Licensee. 8. Reservations to City. City reserves the right to enter the Site at any reasonable time for the purpose of inspection and/or repairs for which the City is responsible, or to carry out any municipal function. This right shall not be exercised in any manner which will unreasonably interfere with Licensee's use of the License Area. The City will have a key to the License Area, for emergency or maintenance purposes. 9. Condition of Premises. Licensee agrees to accept the License Area in "AS IS" condition, and agrees to assume all further liability arising out of the condition of the License Area, once a final inspection is completed jointly by both parties. 10.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 forms CG 20 1010 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 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. 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. 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. 10.9. Qualifying Insurers 10.9.1. All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 10.9.2 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. 10.10. Additional Insurance Provisions. 10.10.1 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. 10.10.2. 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. 10.10.3 The City may require the Licensee to provide complete copies of all insurance policies in effect for the duration of the Agreement. 10.10.4. 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. 11.Indemnification. 11.1. 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, 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 . 11.2. Additional Indemnity Obligations. 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 proceeds, if any, received by the City, its officials, officers, employees, agents and volunteers. 12.Termination. 12.1. This License may be terminated upon the default of one of the parties. In the event of a dispute between the parties, the parties shall first meet and confer regarding the matter. If the dispute cannot be resolved through a meet and confer session within thirty (30) days of written notice of a default, then the License may be unilaterally terminated by the non-defaulting party. 12.2. City and Licensee shall have the right to terminate this License without cause by giving ninety (90) days advance written notice of termination to the other party. 12.3 Upon termination of this License, Licensee shall, at Licensee's sole cost and expense, remove all equipment and materials and restore the License Area to its original condition, excepting only normal wear and tear, acts of God and repairs required to be made by City hereunder. 13.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. 14.Governing Law and Venire. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County. 15.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. 16.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. 17.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 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. 18.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. 19.Construction References and Captions. 19.1. 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. 19.2. 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. 19.3. Calendar hays. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. 19.4 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. 19.5. 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. 20.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. 21.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 21 (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: To Licensee: City of San Juan Capistrano Angeles Ceballos 32400 Paseo Adelanto C/O CREER Comunidad y Familia San Juan Capistrano, CA 92675 31322 Camino Capistrano Attn: Gil Leon San Juan Capistrano, CA 92675 22.Entire Agreement and Severabilit 22.1. 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. 22.2. 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. 23.Binding Effect. 23.1. 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. 23.2. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 23.3. Not Authorization to Assign. This Section 23 (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 17 (Assignment or Transfer). Signatures on next page. SIGNATURE PAGE TO LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE CREER COMUNIDAD Y FAMILIA. In witness thereof, the Parties here to have executed this Agreement: City of San Juan Capistrano CREER Comunidad y Familia A California municipal corporation By B j AIL -La BENJAMIN SIEGEL, City Manager ATTEST: By: MARIA MORRIS, City Clerk APPROVED AS TO FORM: By: JEFF BALLINGER, City Attorney SIGNATURE PAGE TO LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE CREEK COMUNIDAD Y FAMILIA. In witness thereof,the Parties here to have executed this Agreement: City of San duan Capistrano CREER Comunidad y Familia A California municipal corporation AEM B GE ATTEST: By. MA IALVR City Clerk APPROVED AS TO FORM: By: JEF BACLi GE1 J City Attorney Exhibit A Stone Field Facility (Aerial View) s. r'�.•�.%�. Stone Field r '►� t Facility " k•.e Op Y ; IL w - 1 ■ 'i P M n f f n,��!rfl•!vr�.a• ,1�� Exhibit A(continued) Stone Field Facility f (Aerial View) f t�[00 -'Nos F r RR R E G0g fog ` Stone Field Facili#y (Side View) t- Mail& I L _ Bathroom CR EER _ CUSD �;