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21-0216_AGE WELL SENIOR SERVICES, INC._License Agreement1 LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND AGE WELL SENIOR SERVICES PARTIES AND DATE This License Agreement (“Agreement”) is entered into as of this _____ day of _________, 2021 (“Effective Date”) by and between the City of San Juan Capistrano, a California municipal corporation (the “City”) and Age Well Senior Services, Inc., 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 critical services, resources and programs to seniors living in South Orange County ( “Age Well”). B.The City is the owner of the Community Center located at 25925 Camino Del Avion, San Juan Capistrano. C.Licensee requests use of an office space located at the Community Center to conduct business and meet with Age Well staff and volunteers. Age Well requests use of the storage room, kitchen, refrigerator and freezer to store supplies and food for their Meal on Wheels and Lunch Programs. D.Licensee requests use of a portion of the Community Hall identified as the “Lunch Room” on Exhibit A to be accessed for the Lunch Program Monday thru Friday 8:00 a.m. – 1:30 p.m. E.The City supports the services provided by Licensee. F.The Parties desire to enter into this Agreement to allow the Licensee to use the office space, storage room, kitchen, refrigerator and freezer and a portion of the Community Hall at the Community Center in accordance with the terms and conditions set forth in this Agreement. TERMS 1.Grant of License. 1.1. City grants to Licensee a License to use the Office Space, Storage Room, Refrigerator/Freezer, and use of a portion of the Community Hall within the Community Center (identified as the “Lunch Room”) as shown on Exhibit A attached hereto and incorporated herein by this reference. The Office Space, Storage Room, Refrigerator/Freezer and Lunch Room shall be utilized solely as follows: 16 February 2 1.1.1. Office Space. Licensee may utilize office space at the Community Center for conducting business associated to services provided exclusively for Age Well Senior Services staff, volunteers, participants and associated programs such as Meals on Wheels. Age Well Staff and volunteers may utilize the fax machine located in the Community Center staff workroom. Office hours are defined as Monday – Thursday 7:30 a.m. – 5:30 p.m. and Friday 7:30 a.m. - 4:30 p.m. 1.1.1.1. Licensee shall furnish its own office furniture, computer, copier, copy paper, toner, and office supplies necessary to conduct business. 1.1.1.2. Licensee is permitted use of one City telephone line and access to City internet. Licensee must operate independent of the City’s network and programs. 1.1.1.3 Licensee will be assigned two sets of keys that allows access to the office space and storage cabinets; and one key to the refrigerator and freezer. 1.1.1.4 Licensee may use the Community Center address to receive incoming mail. A mail “in-box” will be identified at the reception counter for easy access without entering the employee only locations. 1.1.1.5. Licensee shall not make any alterations to the office space or other areas without prior written approval from the City. 1.1.2. Kitchen, Refrigerator and Freezer. 1.1.2.1. Licensee may access the kitchen, refrigerator, and freezer Monday thru Friday 8:00 a.m. – 1:30 p.m. 1.1.2.2. Half of the refrigerator and freezer shall be cleaned out when the Community Services Department has a scheduled rental. The refrigerator and freezer are to be kept in clean condition at all times. The City is not responsible for items left in the refrigerator by Licensee. 1.1.2.3. All trash produced by Licensee during the operational hours shall be disposed of prior to the end of the operatorial day. The kitchen is to be cleaned at the end of each day it is in use. 1.1.3. Storage Room. Licensee may utilize the Storage Room for storage of Age Well Senior Services program materials only. The storage room is located off the kitchen and next to the office space. 3 1.1.3.1. Products used in conjunction with the Lunch Program and Meals on Wheels are to be environmentally friendly. 1.1.3.2. There shall be no other areas on the property used for storage. 1.1.3.3. If storage expands beyond what is allotted or the storage creates complaints or problems for the City, then storage will be discontinued within five (5) days upon written request by the City to vacate the area. 1.1.4. Community Hall. Licensee may use 1/6 of the Community Hall Monday thru Friday from 8:00 a.m. – 1:30 p.m. for operation of the Lunch Program. The City reserves the right to use this space in the event there is a conflict with an existing reservation. If this occurs, City and Licensee will cooperatively work together to determine an alternative location which may include but is not limited to outside of the Community Hall, or the Senior Lounge. 1.1.4.1. Licensee is responsible for the set-up and break-down of this space including, but not limited to, tables, chairs, and other furniture necessary to the program. 1.1.4.2. Licensee is permitted use of the City furniture for the Lunch Program. City furniture is defined as four (4) 72” round tables, forty (40) chairs, one (1) 8’ information table; use of permanent shelving along drawers and cupboards. All furniture is to be returned to its assigned storage place at the end of each operation day, unless prior arrangements have been made with the Manager of Community Services. Licensee’s staff will inform City staff of special occasion lunches that require additional tables, chairs or equipment two weeks in advanced. 1.1.5. City reserves the right to enter the Property at any time for purposes of inspection and to perform any emergency repairs. Licensee shall be given reasonable notice when necessary maintenance or repair activities are scheduled. 1.1.6. This License is granted solely for Age Well Senior Service purposes. Licensee shall not allow any other person or group to utilize the License Areas without City’s written authorization for use in compliance with Section 14. 1.2. Other Uses. Should the Licensee request additional use of space outside of what is defined within this agreement Licensee shall request a Facility Use Permit by the City at least thirty (30) days prior to scheduled event. In order for any event to proceed it shall have a Facility Use Permit issued by City. Licensee understands and accepts that the City will not approve the 4 event until thirty (30) days prior to the event and the City may deny the Facility Use Permit if another Facility Use Permit request for compensation for the same date is made to the City. 1.3. Advertisement/Marketing Materials. All marketing materials that have City reference, including but not limited to use of the City seal, must be reviewed and approved by the Manager of Community Services and/or Senior Program Coordinator prior to publication and/or distribution. Licensee shall not refer to the Community Center as an Age Well Center in any of its Marketing materials or Solicitations 1.4 Deliveries and Parking. There will be no reserved parking for events and/or deliveries. 2. Term. This Agreement shall be effective for ten (10) years commencing on the Effective Date. 3. Facility Use Fees. In consideration of Licensee’s nonprofit status and its services to the City, the City agrees to provide a waiver of fees for the use of the Property. 4. Utilities. The City will be responsible for existing utilities and reasonable utility costs, including telephone and internet. City is not responsible for any security or alarm services. The City is not responsible for providing technical support or network access for Age Well software and/or programs. 5. Acceptance of Condition. Licensee accepts the Property in its present “AS IS” condition upon execution of this Agreement, and agrees to assume all further liability arising out of the condition of the property. City, its officials, employees, representatives and agents, have not made representations or warranties, express or implied, as to the condition of the property, or the suitability of the Property for any purpose. Licensee is responsible for reporting damages equipment and/or safety hazards to City staff as soon as they are noticed or should occur. 6. Licensee obligations. 6.1. Licensee shall, at all times, keep City advised of the name, address, and telephone number of the person responsible for the operation of Age Well Senior Services. Up to two (2) sets of keys shall be issued and signed for by this person. 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. 6.2. Licensee shall, at all times, take and maintain the utmost caution and care in every respect of its operation and shall observe and maintain the highest standard of safety. 6.3. Licensee shall submit an annual performance report to the Manager of Community Services. The annual performance report shall be due 5 December 1 of each year during the term of this License. The annual performance report shall include the following: 6.3.1. Disclosure of all activities the Licensee has conducted on the property, including total people served; 6.3.2. The donations that Licensee received from those activities; 6.3.3. Benefits members or members of the public received from activities; 6.3.4. Proof of Licensee’s continued non-profit status; 6.3.5. Information on the total revenue received and expenditures incurred by Licensee during the reporting period; and, 6.3.6. Disclosure of the sources of that revenue. 6.4. Within five (5) days from the Effective Date of this Agreement, Licensee shall provide a key for the locked location(s) within the office/storage space that is not available to the City. The keys shall be given to the Director of Community Services. City assigned keys are not to be changed. Should the Licensee change the key(s) provided to the City during the term of this Agreement a new key shall be provided to the City within two (2) days of changing of the lock. 6.5. Licensee shall ensure the Property is locked after each use. 6.6. Licensee shall ensure that any and all lights are turned off and all doors are locked within the License Areas. 6.7. At no time may alcohol be served, sold or consumed within the License Areas, unless Licensee receives approval of an Application to Serve and Consume Alcoholic Beverages in City Facilities from the City. 6.8. On or before the termination or expiration of this Agreement, the Licensee shall remove all of Licensee’s personal property from the Property, including all City issued keys and shall surrender possession of the Property to the City in good order and repair to the satisfaction of the City, normal wear and tear excepted. 7. Insurance. 7.1. Time for Compliance. Licensee shall provide evidence satisfactory to the City that it has secured all insurance required under this Section. 7.2. 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. 6 7.3. 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: 7.3.1. Bodily Injury and Property Damage 7.3.2. Personal Injury/Advertising Injury 7.3.3. Premises/Operations Liability 7.3.4. Products/Completed Operations Liability 7.3.5. Aggregate Limits that Apply per Project 7.3.6. Explosion, Collapse and Underground (UCX) exclusion deleted 7.3.7. Contractual Liability with respect to this Agreement 7.3.8. Broad Form Property Damage 7.3.9. Independent Licensees Coverage 7.4. 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. 7.5. 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. 7.6. 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. 7.7. 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. 7.8. Workers’ Compensation/Employer’s Liability 7.8.1. Licensee certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement. 7 7.8.2. To the extent Licensee has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Licensee shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Licensee shall require all consultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section. 7.9. Policy Provisions Required 7.9.1. 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. 7.9.2. 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. 7.9.3. 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. 7.9.4. 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. 8 7.9.5. 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. 7.10. Qualifying Insurers 7.10.1. All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 7.10.2. 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. 7.11. Additional Insurance Provisions 7.11.1. 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. 7.11.2. 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. 7.11.3. The City may require the Licensee to provide complete copies of all insurance policies in effect for the duration of the Agreement. 7.11.4. 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. 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 9 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. 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 . 9. Termination. City and/or Licensee shall have the right to terminate this Agreement “AT WILL” and for no cause. 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. 10. 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. 11. Governing Law and Venue. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County. 12. 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. 13. 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. 14. 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. 10 15. 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. 16. Construction, References, and Captions. 16.1. 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. 16.2. 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. 16.3. Calendar Days. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. 16.4. References to the City. All references to the City shall include, but shall not be limited to, City Council, City Manager, City Attorney, 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. 16.5. 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. 17. 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. 18. 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. 11 To City: To Licensee: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Benjamin Siegel, City Manager Age Well Senior Services, Inc. 25925 Camino Del Avion San Juan Capistrano, CA 92675 Attn: Steve Moyer, Chief Executive Officer 19. Entire Agreement and Severability. 19.1. 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. 19.2. 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. 20. Binding Effect. 20.1. 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. 20.2. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 20.3. Not Authorization to Assign. This Section 20 (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 14 (Assignment or Transfer). Signatures on next page. EXHIBIT A