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20-0121_SAN JUAN CAPISTRANO LITTLE LEAGUE_License Agreement LICENSE AGREEMENT BETWEEN CITY OF SAN JUAN CAPISTRANO AND SAN JUAN CAPISTRANO LITTLE LEAGUE FOR USE OF CONCESSION STAND AT SAN JUAN CAPISTRANO SPORTS PARK PARTIES AND DATE THIS LICENSE AGREEMENT("Agreement")is entered into as of this Z day of January, 2020, ("Effective Date") by and between the CITY OF SAN JUAN CAPISTRANO, a California municipal corporation (the "City") and SAN JUAN CAPISTRANO LITTLE LEAGUE, (the "Licensee"). City and Licensee are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as the "Parties." RECITALS: A. The City is the owner of the San Juan Capistrano Sports Park located at 'I Via Positiva, San Juan Capistrano (the "San Juan Capistrano Sports Park "). B. Licensee is a non-profit organization, providing children the opportunity to play little league. Licensee is run completely by volunteer and sponsorship support and participation. C. Licensee desires the right to vend refreshments and food items from the Concession Stand at San Juan Capistrano Sports Park("Concession Stand") upon the below-stated terms and conditions. D. City desires to grant the non-exclusive right for Licensee to operate the Concession Stand. E. Licensee acknowledges City may also grant other non-profit organizations a non-exclusive License to operate the Concession Stand. F. Licensee's Primary Season is from March through August ("Primary Season"). G. The Parties desire to enter into this Agreement to allow Licensee to operate the Concession Stand in accordance with the terms and conditions set forth in this Agreement. 1 TERMS . Grant of License. 1.1. Concession Stand. Subject to the terms of this Agreement, City grants to Licensee a non-exclusive License to Licensee to operate the Concession Stand at San Juan Capistrano Sports Park, as shown on Exhibit A, attached hereto and incorporated herein by this reference as though fully set forth herein. 1.1.1. During Licensee's Primary Season, Licensee may only operate the Concession Stand at such times as the Licensee is authorized by the City to utilize San Juan Capistrano Sports Park for a Licensee function. 1.1.2. Non-Seasonal Operation. 1.1.2.1. Licensee may request use of the Concession Stand for special tournaments and non-seasonal dates that fall outside the Primary Season. 1.1.2.2. The City shall consider such request in accordance with other youth sports organizations'use of the Concession Stand during their Primary Season. 1.1.2.3. City may, in its sole and absolute discretion, grant permission to Licensee to utilize the Concession Stand for a non-seasonal use if the request does not conflict with other youth sports organizations' Primary Season dates. 1.1.2.4. Any non-seasonal use of the Concession Stand shall be subject to the terms of this Agreement. 2. Term. The term of the Agreement shall be three (3) 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. 3. Facility Use Fees. In exchange for consideration of use of the Concession Stand during the term of the Agreement, Licensee is to assist with daily maintenance of the infields during the Primary Season. 4. Acceptance of Condition. Licensee accepts the Concession Stand 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. Licensee understands and acknowledges that the Concession Stand may contain hazardous conditions which may present danger and/or risks to the persons or property. City, its officials, employees, representatives and agents, have not made representations or 2 warranties, express or implied, as to the condition of the property, or the suitability of the Concession Stand for any purpose. 5. Licensee obligations. 5.1. Concession Stand. 5.1.1. Licensee shall be solely responsible for all taxes required by local, county, state or federal government with respect to all aspects of the Concession Stand operation. 5.1.2. Licensee shall be solely responsible for obtaining all permits and licenses required by local, county, state or federal government and payment of any and all fees associated therewith. 5.1.3, Licensee shall, at all times, keep City advised of the name, address, and telephone number of the person responsible for the operation of the Concession Stand (Authorized Persons). Only Authorized Persons shall be provided the access code by the City to the Key Pad which will provide entry to the Concession Stand. Authorized Persons are prohibited from sharing this access code with any other person. 5.1.4. Signs. All signs or advertising shall comply with the City's Municipal Code sign ordinance and shall be reviewed by the Community Services Department and approved by the Planning Department. 5.1.5. Hours of Operation. The Concession Stand hours of operation shall be within the hours of 8:00 am-9:30 p.m., Monday through Saturday, and 9:00 am-9:30 p.m on Sundays, which is in compliance with Administrative Policy No. 607 regarding hours of operation for athletic fields. 5.1.6. Food, Beverage and Promotional Products. 5.1.6.1. Concession Stand sales shall be limited to food, beverages, confectionaries and promotional merchandise. 5.1.6.2. The sale of alcoholic beverages and tobacco products is prohibited. 5.1.6.3, All items are to be sold from inside the Concession Stand and no other location on the Sports Park premises, with the exception of promotional merchandise which may be sold outside adjacent to the Concession Stand. 3 5.1.6.4. All Food and Beverages shall be stored securely so as to not be attractive to rodents or insects. 5.1.6.5. Licensee agrees to operate and maintain the Concession Stand in compliance with County of Orange Health Department regulations. 5.1.7. Recycling Program. In compliance with the City's recycling program,,the Licensee shall obey recycling requirements. Beverages shall be served in plastic bottles or aluminum cans. No glass containers are allowed. Paper cups will also be required, no Styrofoam or waxed-lined cups are allowed. All trash and recyclable products will be separated by Licensee. 5.1.8. Equipment. 5.1.8.1. Any and all equipment,either replacement or new, shall be provided and maintained by Licensee. 5.1.8.2. City assumes no responsibility for the sharing of Concession Stand equipment between Licensee and any other Licensee. 5.1.8.3. All equipment must be in good operable condition, and an electrical inspection by the City will be performed prior to the first day of Concession Stand operations. City reserves the right to inspect the equipment at any time while the Concession Stand is in operation. 5.1.8.4. All equipment shall be removed by Licensee from the Concession Stand at the end of License Agreement term. 5.1.8.5. Any and all equipment left in the Concession Stand following the end of the License Agreement term will become the property of the City unless prior written arrangements have been made with City. 5.1.9. A first-aid kit shall be available at all times and adequately supplied with bandages, ice packs, etc.,and placed in a visible location within the Concession Stand. 5.1.10. A fire extinguisher shall be placed in a visible location and inspected regularly by the Orange County Fire Authority. 5.1.11. Vehicles. Vehicles are prohibited in the park. All loading and unloading of Concession Stand supplies shall take place at curbside of the street. 4 5.1.12. Maintenance and Cleanliness. 5.1.12.1. Licensee shall keep the Concession Stand in good condition and repair, reasonable wear and tear excepted. 5.1.12.2. Licensee shall be responsible for all expenses incurred by City for property damage arising out of the concession operation under this License Agreement 5.1.12.3. Licensee shall reimburse the City for any and all costs of maintenance and repairs incurred by the City as a result of Licensee's use of the Concession Stand. 5.1.12.4. Licensee shall ensure that Concession Stand is locked and secured after each use. 5.1.12.5. Licensee shall ensure that any and all lights are turned off within the Concession Stand. 5.1.12.6. Licensee shall immediately notify City if any graffiti is • observed on or around the Concession Stand. 5.1.12.7. The Concession Stand shall be cleaned and sanitized after each use of the Concession Stand including, but not limited to, wiping down and removing all debris from counter tops, shelves, sinks, appliances, walls and floors. 5.1.12.8. It is the responsibility of Licensee to keep the Concession Stand and area within thirty (30) feet surrounding the Concession Stand free of trash and debris. 5.1.12.9. All trash is to be removed from the Concession Stand at the conclusion of each Licensee activity. 5.1.12.10. Trash cans and recycling containers throughout the park shall be emptied throughout the day to ensure no overflow of trash onto the premises. 5.1.12.11. All trash and recycling in the park and Concession Stand shall be bagged and dumped in the City-provided dumpsters at the conclusion of the day. 5.1.12.12. At the end of term of License Agreement, the Concession Stand shall be left in the same condition as 5 it was upon entering this Agreement as evidenced by the City's Inspection Report (Section 6.1). 5.2. Annual Performance Report. Licensee shall submit an annual performance report to the Director of Community Services. The annual performance report shall be due December 1 of each year during the term of this License. The annual performance report shall include the following: 5.2.1.1. Disclosure of all activities the Licensee has conducted both at the License Area and in the community on an outreach basis. 5.2.1.2. The number of citizens receiving benefits from activities. 5.2.1.3. The city(s) of residence of citizens receiving benefits from activities. 5.2.1.4. Description of any routine maintenance of the License Area. 5.2.1.5. Proof of the Licensee's continued non-profit status. 5.2.1.6. Information on the total revenue received by the Licensee during the reporting period, and disclosure of the sources of that revenue. 6. City's obligations. 6.1. Concession Stand. 6.1.1. The City will perform an inspection of the Concession Stand upon commencement of this Agreement and prepare an Inspection Report 6.1.2. The City's Public Works Department will repair any and all damages to the Concession Stand. Licensee shall reimburse the City for any and all costs of maintenance and repairs incurred by the City as a result of the Licensee's use of the Concession Stand. 6.1.3. The City may spray for insects or perform rodent remediation as it deems necessary. Licensee shall reimburse the City for any and all costs of insects or perform rodent remediation incurred by the City as a result of the Licensee's use of the Concession Stand. 6.1.4. City will provide Authorized Persons (Section 5.1.3 above)the access code to the Key Pad for access to the Concession Stand. City may, change the access code at any time City deems necessary, but shall 6 provide Authorized Persons with the new access code as soon as practicable. 6.1.5. Inspections. 6.1.5.1. The City shall have the right to enter the Concession Stand at any time during the term of this Agreement for inspection purposes. 6.1.5.2. Inspections shall not hinder the normal operation of Concession Stand and, when at all possible, Licensee will be notified of inspection and inspection shall be scheduled with a representative of Licensee. 6.2. Utilities. City shall be responsible for payment of utility bills for the Concession Stand. 7. Insurance. 7.1. Licensee shall not occupy Property until it has provided evidence satisfactory to the City it has secured all insurance required under this section. 7.1.1. Commercial General Liability 7.1.1.1. The Licensee shall take out and maintain, during the term of this License, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. 7.1.1.2. Coverage for Commercial General Liability insurance shall be at least as broad as the following Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. 7.1.1.3. Commercial General Liability Insurance must include coverage for the following: (i) Bodily Injury and Property Damage. (ii) Premises/Operations Liability. (iii) Property Damage 7.1.1.4. 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 7 liability; or (4) contain any other exclusion contrary to the Agreement.. 7.1.1.5. 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. 7.1.1.6. 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. 7.2. Minimum Policy Limits Required. 7.2.1. The minimum Commercial General Liability policy limits are $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage. 7.2.2. Defense costs shall be payable in addition to the limits. 7.2.3. Requirements of specific coverage or limits contained in this section are not intended, as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. 7.3. Evidence Required. Prior to execution of the Agreement, the Licensee shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer's equivalent) signed by the insurer's representative and Certificate of Insurance (Acord Form 25- S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance. 7.4. Policy Provisions Required. 7.4.1. 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 8 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. 7.4.2. 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. 7.4.3. The retroactive date (if any) of each policy is to be no later than the effective date of this Licensee. 7.4.4. All required insurance coverages shall contain or be endorsed to provide a 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. 7.4.5. 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. 7.5. Qualifying Insurers 7.5.1. All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 7.5.2. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:Vil 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. 7.6. Additional Insurance Provisions 7.6.1. 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 9 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. 7.6.2. 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 the City may cancel this Agreement. 7.6.3. The City may require the Licensee to provide complete copies of all insurance policies in effect for the duration of the Agreement. 7.6.4. 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. 8. Indemnification. 8.1. To the fullest extent permitted by law, 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. 9. Independent Contractor. Licensee shall be deemed at all times as an independent contractor and not an employee of the City. All persons employed to provide services under this Agreement shall be employees or volunteers of Licensee and shall not be deemed employees of City for any reason or purpose. 10. Termination. 10.1. City shall have the right to terminate this Agreement"AT WILL" and for no cause. 10 10.2. Upon termination of this Agreement Licensee shall clean and remove all equipment, materials from Concession Stand. 10.3. No termination hereof shall release Licensee or its respective successor or assigns from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events occurring prior to the effective date of such termination. 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. 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. No Assignment without the City's Consent, The Licensee shall not assign, hypothecate, ortransfer, 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. 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 11 assistance, relocation benefits, or compensation for loss of goodwill upon the termination of this License. 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 19 (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. 12 • To City: To Licensee: City of San Juan Capistrano San Juan Capistrano Little League 32400 Paseo Adelanto Brett Vermeulen San Juan Capistrano, CA 92675 PO Box 458 Attn: Kipp Lyons SJC, CA 92693 P: 949 285 0371 Email: brettverm©gmail,com 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. Binding 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. 13 SIGNATURE PAGE TO LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE SAN JUAN CAPISTRANO LITTLE LEAGUE In witness thereof,the Parties here to have executed this Agreement: City of San Juan Capistrano San Juan Capistrano Little League A California municipal corporation By: -6,(4,—/ BEN Si r4 , Brett Vermeuten Cit Manages ATTEST: \ By: . 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