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21-0316_GOIN NATIVE THERAPEUTIC GARDENS_Memorandum of UnderstandingPage 1 of 15 MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY SAN JUAN CAPISTRANO AND GOIN NATIVE THERAPEUTIC GARDENS FOR THE NON-EXCLUSIVE USE OF LOS RIOS AND REATA PARK This MEMORANDUM OF UNDERSTANDING (MOU) is made and entered into this 16th Day of March 2021, by and between the City of San Juan Capistrano, a California municipal corporation (thereinafter referred as "City"), and Goin Native Therapeutic Gardens. The City and Goin Native Therapeutic Gardens are referred to individually as a "Party" and collectively as the "Parties.” RECITALS A.Goin Native Therapeutic Gardens (Goin Native) is a 501(c)(3) organization located within the City of San Juan Capistrano which provides basic garden, life, and employment skills through various outreach programs in the community. B.Goin Native Therapeutic Gardens desires to provide care and maintenance to gardens at Los Rios and Reata Park. C.Goin Native Therapeutic Gardens desires to offer free community workshops to adult and youth at Los Rios and Reata Park. D.The City supports the community services provided by Goin Native Therapeutic Gardens. E.The Parties desire to enter into the MOU to establish the duties and responsibilities of the City and Goin Native Therapeutic Gardens related to the Los Rios and Reata Park programs and events. TERMS NOW, THEREFORE, LET IT BE MUTUALLY AGREED TO BY CITY AND GOIN NATIVE THERAPUETIC GARDENS (GOIN NATIVE) AS FOLLOWS: 1.Term. This MOU shall remain in effect until March 15, 2026 unless terminated earlier in accordance with this MOU. 2.Scope of Collaboration. 2.1. Non-exclusive use. Parties understand and agree that this MOU is for the non-exclusive use of Los Rios and Reata Park, herein referred to as “Parks” by Goin Native. Use of the Parks by Goin Native is subject to availability, and such availability is at the sole and absolute discretion of the City. All requests by Goin Native to use the Parks shall be made in writing to the City no less than thirty (30) days in advance of the event to allow time for City review, confirmation of availability and approval. Goin Native shall ensure that volunteers and any projects by Goin Native will not reduce or impact City approved uses. Page 2 of 15 2.2. Goin Native Responsibilities. Goin Native agrees to provide the following at no cost to the City: 2.2.1. Goin Native shall provide volunteers to care for and maintain gardens at the Los Rios Park as specified on Exhibit A. 2.2.2. Goin Native shall provide volunteers to care for and maintain gardens at Reata Park as specified on Exhibit B. 2.2.3. Care and Maintenance obligations. Goin Native shall care for and maintain gardens in compliance with the following: 2.2.3.1. Going Native shall comply with any and all maintenance directions provided by City. 2.2.3.2. Goin Native shall educate all volunteers and ensure compliance with any and all maintenance directions provided by City. 2.2.3.3. Goin Native will rake, remove weeds, hand water, deadhead plants, mulch, as well a light seasonal pruning in compliance with any and all maintenance directions provided by City. 2.2.3.4. All garden litter shall be properly disposed of in the refuse bin located in trash enclosures on the properties. 2.2.4. Storage. Goin Native shall provide and properly store all garden tools, plants, planting material, mulch, equipment, tools, and supplies including trash bags at no cost to the City. 2.2.4.1. Parties agree that City will provide storage as specified in section 2.3.7 herein. 2.2.4.2. Goin Native shall be solely responsible for any lost or damaged garden tools, plants, planting material, equipment, tools, and supplies. 2.2.4.3. Goin Native shall keep storage area clean and free from all debris. 2.2.4.4. Storage of chemicals by Goin Native in City storage facility shall be prohibited unless Goin Native receives advance written approval from City for said storage. 2.2.4.5. Goin Native agrees and understands that City must obtain access to City’s storage areas at the Parks and Goin Native shall insure City always has a clear path of travel to access the City’s storage areas. The storage areas provided at the Parks shall be maintained and allow for a clear path of travel at no less than four (4) feet wide to provide direct access from City Storage area to exit doors of storage facility. 2.2.4.6. Goin Native shall not cause damage to any City Property, including the storage facility, equipment, tools, and Page 3 of 15 supplies. Goin Native shall reimburse City for all costs to repair damage caused by Goin Native to City Property. 2.2.4.7. Goin Native shall insure that the storage facility is locked at all times that the storage facility is not actively being accessed. At no time shall the door be unlocked unless Goin Native is within five (5) feet, with direct line of sight, of the door. 2.2.4.8. Goin Native will be given a set of keys provided by the City for access to the storage facilities at the Parks. Goin Native shall not duplicate keys or add additional locks. 2.2.4.9. Goin Native shall ensure that only authorized members of Goin Native access the storage facility, and Goin Native shall take every precaution to ensure no unauthorized person enters the storage facility. 2.2.4.10. Goin Native shall not enter any portion of the storage facility that is for City exclusive use. 2.2.5. Volunteers. 2.2.5.1. When volunteering, all volunteers shall sign in and out, wear a name identification sticker, wear closed toe shoes, and wear proper protective gloves. 2.2.5.2. Prior to performing any work at the Parks, Goin Native shall insure that all volunteers sign a City approved liability waiver. All forms shall be turned into the Community Services Manager within three (3) days of a volunteer event. 2.2.6. Alterations. Alterations to any area of the Parks specified on Exhibit A and Exhibit B may be made by Goin Native in compliance with the following: 2.2.6.1. Goin Native may make and install City approved plant identification signs. 2.2.6.2. Goin Native shall seek written approval by the City’s Community Services Manager prior to making any alterations to Los Rios and/or Reata Park, including by not limited to planting new or replacement plants; changing any landscaping materials, border materials, or signage. 2.2.6.3. Goin Native shall ensure that volunteers and any projects by Goin Native will not reduce or impact City approved use. 2.2.6.4. Goin Native shall seek City’s written approval prior to posting of any banners, signage, or any advertising materials on City Property. Page 4 of 15 2.2.7. Lectures. Goin Native agrees to provide no less than six (6) free lectures or craft sessions for the community at the Parks as follows: 2.2.7.1. All lectures or crafts workshops shall be open to the public for no cost, except for the craft sessions, which Goin Native may request participants to pay a materials fee to the instructor. Material Fees to be charged to the participants must be approved of in advance in writing by the City and shall not exceed the costs of the supplies for the class. 2.2.7.2. The dates for the lectures or craft workshops shall be requested no less than thirty (30) days in advance of the event to allow time for City review, confirmation of availability and approval. 2.2.7.3. The requests for lectures or craft session shall specifically identify where within the Los Rios and/or Reata Park site, the lecture or craft workshop is to be held. 2.2.7.4. All lectures or craft workshops are to be held on Saturday between the hours of 8:00 a.m. – 4:30 p.m., and subject to City approval. 2.2.8. Goin Native shall provide a report of the program statistics including number of volunteers, number of participants for each lecture or craft session conducted at the Parks. The report shall contain statistics for the previous quarter and is due to the Community Services Manager on January 1, April 1, July 1, and October 1. 2.2.9. Any requests for staff assistance related to the Goin Native Responsibilities contained within this MOU shall be made at least 72 hours in advance. In cases of emergency, the 72-hour request requirement will not be enforced, but in such cases, Goin Native will provide City with as much notice as possible. 2.2.10. Goin Native shall not solicit any donations on City Property. 2.2.11. Goin Native shall not attempt to supervise or direct the work of any City Contractor. Any concerns regarding the actions of a City Contractor shall be directed to City Staff. 2.2.12. Use of the City logo is prohibited unless and until Goin Native receives written permission for each and every use of the City Logo. Permission by the City for use for one event or specific use shall not constitute permission for any other event or specific use. 2.3. City Responsibilities. 2.3.1. City agrees to allow Goin Native to utilize the Parks for City approved activities, consistent with Section 2.1. 2.3.2. City will provide Goin Native with directions on how to properly maintain the Parks. Page 5 of 15 2.3.3. City will insure there are refuse bins located within the trash enclosures on the properties to allow for the disposal of the garden litter. 2.3.4. City shall review all requests for use of the Parks by Goin Native and determine if there is availability for the date and location requested. 2.3.5. City shall review all requests by Goin Native for participants to pay a Supply Fee to the instructor. Material Fees charged to the participants shall not exceed the costs of the materials for the class. 2.3.6. Upon written request by Goin Native, City shall include pre-approved flyers and marketing materials provided by Goin Native, advertising free classes, workshops and/or tours in the City Manager Weekly Update, consistent with the terms as defined in this MOU and at the City’s discretion. 2.3.7. City shall provide Goin Native no-cost rental fee for offering the following programs: educational and horticulture classes, walking or historical tours, class demonstrations and any projects done at the Parks inference to a program defined by this MOU. Goin Native will pay all costs associated with the rental of City property for events not defined within this MOU. 2.3.8. City shall attempt to comply with any requests for staff assistance related to the Goin Native Responsibilities contained within this MOU. The granting of such request is dependent upon City resources and shall be at the sole and absolute discretion of the City. 2.3.9. Storage Facility. City agrees to provide storage at the Parks specified in Exhibit A and B, attached hereto, and incorporated herein by this reference. 3. Indemnity. 3.1. To the fullest extent permitted by law, Goin Native 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 Goin Native, its officials, officers, employees, subcontractors, Goin Native’s or agents in connection with the performance of the Goin Native’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. Goin Native's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers. Page 6 of 15 4. Insurance. 4.1. Time for Compliance. Goin Native shall provide evidence satisfactory to the City that it has secured all insurance required under this Section. 4.2. Goin Native 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. 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: 4.3.1. Bodily Injury and Property Damage 4.3.2. Personal Injury/Advertising Injury 4.3.3. Premises/Operations Liability 4.3.4. Products/Completed Operations Liability 4.3.5. Aggregate Limits that Apply per Project 4.3.6. Explosion, Collapse and Underground (UCX) exclusion deleted 4.3.7. Contractual Liability with respect to this Agreement 4.3.8. Broad Form Property Damage 4.3.9. Independent Licensees Coverage 4.4. 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. 4.5. 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. 4.6. 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. 4.7. 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. 4.8. Minimum Policy Limits Required. Goin Native 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. 4.9. Policy Provisions Required Page 7 of 15 4.9.1. Goin Native shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Goin Native 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 Goin Native 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. 4.9.2. The Commercial General Liability Policy shall contain a provision stating that Goin Native’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. 4.9.3. The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Goin Native shall maintain such coverage continuously for a period of at least three years after the termination of this Agreement. Goin Native 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. 4.9.4. 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 Goin Native or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Goin Native hereby waives its own right of recovery against City. 4.9.5. 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 Goin Native from liability in excess of such coverage, nor shall it limit the Goin Native’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. 4.10. Qualifying Insurers 4.10.1. All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 4.10.2. 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 Page 8 of 15 otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 4.11. Additional Insurance Provisions 4.11.1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by Goin Native, 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 Goin Native pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 4.11.2. 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 Goin Native or City will withhold amounts sufficient to pay premium from Goin Native payments. In the alternative, City may cancel this Agreement. 4.11.3. The City may require the Goin Native to provide complete copies of all insurance policies in effect for the duration of the Agreement. 4.11.4. 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 5. Licenses, Permits. Fees and Assessments. Goin Native shall obtain at its sole cost and expense all licenses, permits, and approvals that may be required by law for the performance of the services required by this MOU. Goin Native shall have the sole obligation to pay any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for Goin Native’s performance of the services required by this MOU. 6. Laws and Regulations. Goin Native shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of the services required by this MOU. Goin Native shall be liable for all violations of such laws and regulations in connection with performance of the services required by this MOU. 7. Use of Patented Materials. Goin Native shall assume all costs arising from the use of patented or copyrighted materials, including but not limited to equipment, devices, processes, and software programs, used or incorporated in the services or work performed by Goin Native under this MOU. 8. Termination. City and Goin Native reserve the right to terminate this MOU at any time, with or without cause, upon ninety (90) days written notice to the other party. 9. 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, Page 9 of 15 the reasonable attorneys’ fees, costs, and expenses incurred in the action or proceeding by the prevailing party. 10. Governing Law and Venue. This MOU shall be governed by the laws of the State of California. Venue shall be in Orange County. 11. 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 Goin Native 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 Goin Native 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. 12. 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. 13. Construction, References, and Captions. 13.1. 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. 13.2. 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. 13.3. 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. 14. 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 Goin Native. 15. 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 15 (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. Page 10 of 15 To City: 16. Goin Native: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: Benjamin Siegel, City Manager 17. Goin Native Therapeutic Gardens 31661 Los Rios Street San Juan Capistrano, CA 92675 Attn: Marianne Taylor, Founder 16. Entire Agreement and Severability. 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. Page 12 of 15 Exhibit A Los Rios Park Landscape Maintenance Area Page 13 of 15 Los Rios Park Storage Page 14 of 15 Exhibit B Reata Park Landscape Maintenance Area Page 15 of 15 Reata Park Storage