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22-1213_THE ECOLOGY CENTER_License Agreement61147.80007\40783575.1 1 LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND ECOCENTER, INC., DBA THE ECOLOGY CENTER FOR THE PROPERTY LOCATED AT 32701 ALIPAZ STREET, SAN JUAN CAPISTRANO PARTIES AND DATE This License Agreement (“Agreement”) is entered into as of this ___ day of ___________, 2022 (“Effective Date”) by and between the City of San Juan Capistrano, a California municipal corporation (the “City”) and Ecocenter, Inc., dba The Ecology Center, a California nonprofit public benefit 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 nonprofit organization whose mission is to provide creative solutions for thriving on planet earth. Licensee believes everyone should have access to the tools, knowledge, and skills that promote healthy communities and an abundant future for all. B. City is the owner of a 28.225 acre farm in the City of San Juan Capistrano, California, located at 32701 Alipaz Street; and C. Licensee desires to conduct farming operations and environmental education and related uses on approximately 27.475 acres of the property in and around the Joel Congdon House (“House”), with 0.50 acres set aside for an existing access road. D. Licensee has farming and environmental education expertise and experience and desires to manage the maintenance and operations of the agricultural activities on the property. E. This Agreement supersedes and replaces in their entirety that certain License Agreement dated May 4, 2016 and that certain License Agreement dated August 21, 2018 (together the “Prior Licenses”). TERMS NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Grant of License. 1.1. Scope. The City grants to Licensee a license to manage and maintain the House and to operate a fruit and vegetable farm on 27.475 acres of the property located at 32701 Alipaz Street, San Juan Capistrano (herein after “License Area”) as described below: 1.1.1. The License Area is specifically depicted in the Site Plan attached hereto as Exhibit “A” and is incorporated hereby this reference. 13 December 61147.80007\40783575.1 2 1.1.2. The House is subject to this Agreement. 1.1.3. All crops harvested on the License Area during the term of this Agreement shall be the sole property of Licensee. 1.1.4. City makes no warranty of the suitability of the License Area for the growing of crops. 1.2. City Right to Modify. City shall have the right, at the City’s sole and absolute discretion, to reduce the License Area upon thirty (30) days’ advance written notice to Licensee should the City determine that a Skatepark and Multi-use Trail Project should be constructed on the License Area. Licensee acknowledges and agrees that modification of the License Area to accommodate the Skatepark and Multi-use Trail Project, shall not reduce or permit Licensee to renegotiate the License Fee set forth in Section 3, below. The City’s right to modify the License Area shall be for the exclusive purpose of a potential Skatepark and Multi-use Trail Project. 2.Term. This Agreement shall commence on _________________, 2023 (“Commencement Date”) and shall be effective for twenty (20) years (“Initial Term”), except as otherwise provided in this Agreement. This Agreement may be extended for two (2) additional ten (10) year terms, upon the written request of the Licensee. Such notice of the extension shall be submitted to the City in writing no less than sixty (60) nor more than ninety (90) days before the expiration of the Term. 3.License Fees. 3.1. License Fees – Initial Term. Licensee agrees to annually pay the license fees to City as follows: License Years License Fee 1-5 $125,000.00 6-10 $150,000.00 11-15 $175,000.00 16-20 $200,000.00 3.2. License Fees – Option Terms. Should Licensee exercise one or more of the options to extend the term of this Agreement as outlined in Section 2 of this Agreement, then Licensee shall pay annually the license fees to the City as follows: License Years License Fee 21-30 $225,000.00 31-40 $250,000.00 3.3. Payment of License Fee. The initial payment of the annual License fee shall be due within five (5) working days of the Commencement Date. Each January 1 61147.80007\40783575.1 3 subsequent payment of the license fee shall be due annually on each anniversary of the Commencement Date. 3.4. Intensification of Use – Fee Increase. In the event Licensee expands the approved land uses or intensifies its use of the License Area pursuant to Section 3.5, below, City shall have the right, upon advance notice to Licensee, to increase the License fees payable by Licensee to City hereunder. 3.5. Intensification of Use – Required Approval. Licensee shall not intensify its use of the License Area beyond what is existing at the time of this License Agreement or what is allowed in the approved CUP and Specific Plan 85- 01 without first seeking and obtaining all necessary permits or approvals from the City for the intensification of land uses, including compliance with the California Environmental Quality Act. 4. Licensee obligations. 4.1. Compliance with Laws. Licensee shall comply with all applicable laws, ordinances, codes and regulations of federal, state and local government. 4.2. Operation of Farm. Licensee shall be responsible for the supervision and management of every aspect of running a farming operation of produce for human consumption on the License Area in a business-like manner. Supervision and maintenance obligations shall be performed at no cost to the City, and include but are not limited to: 4.2.1. The employment, supervision and direction of all employees engaged in the farming operation. 4.2.2. Providing for the maintenance of all equipment and supervising its use in a safe and prudent manner. 4.2.3. Soil preparation, planting, fertilizing, irrigating, pesticide and herbicide applications, and the harvesting of all crops. 4.2.4. The marketing and sale of crops. 4.2.5. Maintenance of records and accounting for all revenues and expenditures, including employee payroll and related records. 4.2.6. Purchasing of all seeds, plants, fertilizers, herbicides, pesticides, and other materials and supplies, such as boxes and packaging materials, required for marketing and sale of the crops. 4.2.7. All operations shall be performed in a competent manner, consistent with the standards of the industry and in accordance with all applicable federal, state and local regulations, including the City’s Municipal Code. 61147.80007\40783575.1 4 4.2.8. Licensee shall farm the License Area in a manner that protects the soil in accordance with sound agricultural practices commensurate with the custom and practice within Orange County, California. Should Licensee desire to implement any unique agricultural practices, the Licensee shall seek written approval from the City in advance of implementing the unique agricultural practices. 4.2.9. Licensee shall not plant or cultivate, or permit to be planted or cultivated, Cannabis otherwise known as Marijuana (“Marijuana”). 4.3. Joel Congdon House 4.3.1. Maintenance, Repair, and Custodial Responsibilities: Licensee shall be responsible for, but is not limited to, the following items: 4.3.1.1. Interior maintenance and janitorial functions including solid waste and recycling disposal; 4.3.1.2. Appliance repair and replacement; 4.3.1.3. Maintenance of the heating/cooling system, smoke detectors and interior plumbing, including repair or replacement of deteriorated equipment/fixtures due to aging; 4.3.1.4. Care and maintenance of interior flooring, walls, ceilings, including painting/wallpaper, and built-ins. Repair or like-for-like replacement of materials shall be in compliance with the Secretary of the Interior's Standards for Treatment of Historic Properties due to ordinary wear and tear/aging; 4.3.1.5. Repair and maintenance of interior furnishings; 4.3.1.6. Repair and maintenance of interior and exterior light fixtures, including replacement of bulbs and like-for-like replacement of fixtures due to aging or malfunction; 4.3.1.7. Exterior grounds maintenance and repair, including ensuring adequate drainage to prevent deterioration of historic building foundations; irrigation; utility laterals; landscape (except historic tree trimming), parking and drive aisles; and hardscape in compliance with the Secretary of the Interior's Standards for Treatment of Historic Properties; 4.3.1.8. Pest Control; 4.3.1.9. Exterior building(s) upkeep and minor repair, including minor wall, window and door repair; exterior painting of the House, outbuilding, and water tower per Secretary of the Interior's Standards for Treatment of Historic Properties; 61147.80007\40783575.1 5 4.3.1.10. House, outbuilding, water tower roof shingle repair/replacement and exterior character-defining feature replacement, repair, maintenance as determined by the City Manager or designee; 4.3.1.11. No alterations to the House or any other facility located on the License Area shall occur without prior written approval by the City; 4.3.1.12. Repair or replacement of House electrical system due to aging of structure consistent with the Secretary of the Interior's Standards for Treatment of Historic Properties; 4.3.1.13. Periodic trimming and maintenance as determined necessary by the City for the three pre-existing historic trees (palm and citrus southeast of, and palm in front of the House); 4.3.1.14. Interior repair and maintenance of water tower and it's components if proposed to be used for program, office or any related uses by Licensee with prior City approval; 4.3.1.15. Maintenance (sanitation pipe cleaning and clog removal, minor leaks) of water/sewer mains and storm drains external to the site that serves the License Area. 4.3.2. Additional Conditions of Operation. The House shall be used for environmental education and museum functions in accordance with the provisions of this Agreement and CUP 15-006 including the specific conditions therein, as amended from time to time and incorporated herein by reference. 4.3.2.1. Any holes or other defacement of the walls, roof or ceiling of the House shall be repaired and restored back to original condition by Licensee in accordance with the Secretary of the Interior's Standards for Treatment of Historic Properties. No structural or other changes of any kind shall be made to the House or any other improvement on the License Area unless prior written approval is obtained from the City. The House floor shall be maintained in its original condition, with no permanent alterations; only temporary coverings (e.g., rugs) that do not need to be affixed to the floor are allowed. 4.3.2.2. Licensee shall ensure that the House remains secure at all times. 4.3.2.3. Licensee shall, at all times, ensure that the operation and use of the License Area does not adversely affect the public health, safety and welfare. 61147.80007\40783575.1 6 4.3.2.4. Licensee shall submit a performance report annually on or before March 31st to the City Manager per City Council Policy 014 including the following: (i) Number of visitors receiving benefits from activities including tours, meetings, and classes. (ii) The city of residence of citizens receiving benefits. (iii) Proof of the organization's continued nonprofit status. (iv) Disclosure of all activities being conducted on the License Area, including tours, meetings, and classes. (v) Description of maintenance of Property and information on the total revenue received by the Licensee in conjunction with the operation of the License Area under this Agreement during the reporting period and disclosure of the sources of that revenue 4.4. Maintenance of Property. Licensee shall be responsible for the management and maintenance of all on-site improvements, at no cost to the City. 4.4.1. Caretaker’s residence is subject to City’s approval based on all applicable provisions of Specific Plan 85-01 . No more than one caretaker unit shall be installed/constructed on the License Area . 4.4.2. Licensee agrees to accept the License Area in its present condition as of the date of execution of this Agreement. Licensee may use the buildings and existing structures on the License Area for Licensee’s use in farming operations. 4.4.3. Licensee shall use reasonable care to control all weeds, noxious or otherwise, growing on the License Area, including those growing in drainage ditches. 4.4.4. Licensee shall reasonably control all rodents, insects, and other pests on the License Area. 4.4.5. Licensee shall maintain all fences, gates, ditches, and borders of the License Area in good condition and repair. 4.4.6. Licensee shall maintain, at Licensee’s expense, the License Area, including all existing structures and all equipment owned and furnished by Licensee, in a reasonable state of repair and working order. 61147.80007\40783575.1 7 4.4.6.1. Licensee may plant fruit trees on the License Area and shall be responsible for properly maintaining all trees including removal of all tree debris. 4.4.6.2. Licensee understands that the shrubs on the Premises block the wind, limit road dust, and reduce the amount of debris entering the License Area. Licensee shall sufficiently maintain the shrubs in order to keep harmful elements away from the crops. 4.5. Retail Stand. 4.5.1. The existing retail stand may be utilized by Licensee solely for retail sales of agricultural products and related agricultural products that support the ecological mission of Licensee. Related merchandise may be allowed; however, sales shall be primarily agricultural products and City reserves the right to prohibit the sale of certain merchandise. 4.5.2. Licensee shall not sell Marijuana, Marijuana products or Marijuana accessories as those terms are defined in the San Juan Capistrano Municipal Code that may be amended from time to time. 4.5.3. Licensee is also permitted to allow members of the public to pick their own produce. Sufficient parking on site shall be provided for the retail stand. 4.5.4. Any expansion, regardless of size or scope, is prohibited under this Agreement unless Licensee obtains written approval of the City. 4.6. Improvements: Licensee shall receive written approval from City prior to making any improvements or alterations to the License Area and/or facilities. If a permit is required, the Licensee shall submit to the Development Services Department, in writing, any desired changes/improvements to the License Area and/or facilities. It is the responsibility of Licensee to determine if a permit(s) is required. All required permits, including environmental review, must be obtained prior to commencing any improvement work. 4.6.1. All improvements undertaken by Licensee shall be the sole financial responsibility of Licensee unless Licensee and City enter into a cost sharing agreement. 4.7. Domestic and Irrigation Water, Electrical, Gas, Telephone, Television/Cable/ Wireless Services. Licensee shall be solely responsible for any and all expenses related to any and all utilities, including but not limited to domestic and irrigation water, electrical, gas, telephone, television/cable/wireless services, for the License Area. The License Area 61147.80007\40783575.1 8 shall be repaired by Licensee if any damage is done to the License Area due to the installation or removal of the utilities and services. 4.8. Access Road. The access road as shown in Exhibit “A” attached hereto and incorporated herein shall be accessible for use by the representatives of the wireless phone company to gain access to the antenna site located on the sports park field adjacent to the License Area. In addition, a gate and corresponding locks shall be added and maintained by Licensee, at no cost to City, consistent with Section 4.4.5 above. 4.9. Responsible Party. Licensee shall, at all times, keep City advised of the name, address, and telephone number of the person(s) responsible for the operation of the License Area. 4.10. Personal Property. On or before the termination or expiration of this Agreement, the Licensee at their sole expense shall remove all of Licensee’s personal property from the License Area and shall surrender possession of the License Area to the City in good order and repair, in substantially the same condition at the time of entry into this Agreement, to the satisfaction of the City. Licensee shall leave Property free and clear of all rubbish and debris. Licensee shall not remove any fruit trees or approved improvements at the termination of the Agreement. 4.11. Prevailing Wages. Licensee acknowledges that City has made no representation, express or implied, to Licensee or any person associated with Licensee regarding whether or not laborers employed relative to the construction and installation of any improvements to City-owned property must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to California Labor Code section 1720 et seq. Licensee understands and agrees that Licensee shall assume the responsibility and be solely responsible for determining whether or not laborers employed relative to any construction on the Property must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to Labor Code section 1720 et seq. Except in the case of City’s or its employees’, council members’, officers’, agents’, and/or contractors’ gross negligence or intentional misconduct, Licensee shall additionally indemnify City, in accordance with the provisions of Section 8 below, against any claims pursuant to California Labor Code section 1781 arising from the date of mutual execution of this Agreement or the construction or installation by Licensee of any improvements on the Property in accordance with this Agreement. Notwithstanding any other provision of this Agreement, City shall have no duty to monitor or ensure the compliance of Licensee with any State of California labor laws, including without limitation, prevailing wage laws. 4.12. Hazardous Materials & Underground Storage Tanks Not Permitted. Licensee covenants that it will not handle or store Hazardous Materials on the License Area, and that it will not install or use any underground storage tanks on or about the License Area. As used in this Agreement, “Hazardous 61147.80007\40783575.1 9 Materials” means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law based upon, directly or indirectly, its properties or effects. As used in this preceding sentence, “Environmental Law” means any federal, state or local environmental, health and/or safety-related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to the Licensee or the Property. 5. Skatepark, Multi-Use Trail, and Perimeter Fence Project. As the City considers options for an approximate 1-acre skatepark location and an approximate 35,000 SF multi-use trail, if the City determines that a portion of the License Area is the preferred location for said improvements, Licensee shall cooperate with the City, and City shall include Licensee, during the design, environmental review, and construction of a Skatepark, Multi-Use Trail, and Perimeter Fence Project(s). Licensee shall not be liable for any costs associated with the Skatepark and Trail. Licensee hereby agrees that the City (and its contractors) shall have access to the Property as necessary for the construction of the Skatepark and Trail. Additionally, the City will construct perimeter fencing around the entirety of the License Area in conjunction with the Skatepark and Trail Project, should the project be approved in this location. Licensee will fund or reimburse City for those portions of perimeter fencing that include access gates and/or doors to the Property. If a Skatepark and/or Trail is not constructed on the License Area, the perimeter fencing will be a standalone City project with the Licensee funding or reimbursing the City for those portions of perimeter fencing that include access gates and/or doors to the property. 6. Event Parking. Licensee shall provide, on-site vehicle parking for all workshops, classes and events held at the License Area. For events that exceed the onsite parking capacity, Licensee shall secure written approval from the City Engineer for parking on the west side of Alipaz Street (from Via Positiva to Camino del Avion) and Camino del Avion.. 7. Reservations to City 7.1. Inspection Rights. City reserves the right to enter the License Area at any reasonable time for the purpose of inspection. Any rights herein reserved shall, moreover, not be exercised in any manner which will unreasonably interfere with Licensee’s use and occupancy of the License Area for the purposes stated in this Agreement. 7.2. Maintenance. City also reserves the right to enter the License Area for purposes of maintenance, which may include the need for Licensee to vacate Property for a reasonable temporary period to be specified at that time, with provision of ninety (90) days’ notice, except for repairs deemed to be for emergency/public safety reasons no notice shall be required. 7.3. Fourth of July Celebration. City shall have use and access to the License Area at no cost to the City in order to host the fireworks celebration for the 61147.80007\40783575.1 10 community from the License Area each July 4th on an annual basis throughout the term of this Agreement. This access shall include, but is not limited to, all set up, coordination, and take-down activities necessary for the annual fireworks display. City shall clean up and return the License Area to its ordinary state at the conclusion of such event. 8. Indemnification. 8.1. Indemnification of City by Licensee. The Licensee shall defend (with counsel approved by City), indemnify and hold the City, its officials, officers, employees, and agents (the “City Indemnified Parties”) free and harmless from any and all liability from loss, damage, or injury to property or persons, including wrongful death, in any manner arising out of or incident to acts, omissions, and/or operations by the Licensee, its officials, officers, personnel, employees, contractors, and/or subcontractors as well as its contractors’ and/or subcontractors’ officials, officers, employees, and agents. Furthermore, Licensee shall defend (with counsel approved by City), indemnify and hold the City Indemnified Parties free and harmless from any and all claims brought to challenge this Agreement under all laws including but not limited to the California Environmental Quality Act and the Planning and Zoning Law. 8.2. Indemnification of Licensee by City. The City shall defend (with counsel approved by Licensee), indemnify and hold the Licensee, its officials, officers, employees, and agents (the “Licensee Indemnified Parties”) free and harmless from any and all liability from loss, damage, or injury to property or persons, including wrongful death, in any manner arising out of or incident to negligent acts, omissions, and/or operations on the License Area by the City (including, but not limited to, any activities conducted pursuant to Section 7) by City’s officials, officers, personnel, employees, contractors, and/or subcontractors as well as its contractors’ and/or subcontractors’ officials, officers, employees, and agents. 8.3. Scope of Section. The Parties’ obligations under this Section 8 (Indemnification) shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, regardless of whether or not the City has prepared, supplied, or approved any plans or for the uses allowed by this Agreement, and regardless of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 8.4. The City’s Rights. The City does not and shall not waive any rights against the Licensee that the City may have under the indemnification provision in this Section 8 (Indemnification) because of the City’s acceptance of any security deposits or insurance policies. 8.5. Survival. The indemnification provision in this Section 8 (Indemnification) shall survive the termination or expiration of this Agreement. 61147.80007\40783575.1 11 9. Insurance 9.1. On or before beginning any of the services or work called for by any term of this Agreement, Licensee, at its own cost and expense, shall carry, maintain for the duration of the Agreement, and provide proof thereof that is acceptable to City, the insurance specified below with insurers and under forms of insurance satisfactory in all respects to the City. Insurance required herein shall be provided by Admitted Insurers in good standing with the State of California and having a minimum Best’s Guide Rating of A-Class VII or better. 9.1.1. Throughout the term of this Agreement, Licensee at Licensee’s sole cost and expense, shall maintain in full force and effect the following insurance against liabilities arising out of Licensee’s activities on the License Area: 9.1.1.1. Comprehensive General Liability coverage in an amount not less than two million dollars ($2,000,000), per occurrence combined single limit coverage, and three million dollars ($3,000,000) aggregate; 9.1.1.2. Worker’s Compensation in an amount not less than one million ($1,000,000) per accident and to include a Waiver of Subrogation; 9.1.1.3. Automobile Insurance covering all owned, non-owned and hired vehicles with a limit of one million dollars ($1,000,000) each accident for bodily injury and property damage; and, 9.1.1.4. The insurance coverage required herein shall be primary insurance as respects the City, its officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officials, employees, or volunteers shall be in excess of the insurance required herein and shall not contribute with it; and 9.1.1.5. The City, its officials, employees, and volunteers are to be covered as additional insureds, and the coverage shall contain no special limitations on the scope of the protection afforded to the City, its officials, employees, or volunteers. 9.1.2. Proof of Insurance Requirements/Endorsement: Licensee shall submit the insurance certificates, including the deductible or self- retention amount, and an additional insured endorsement naming City, its officers, employees, agents, and volunteers as additional insured as respects each of the following: liability arising out of activities performed by or on behalf of Licensee, including the insured’s general supervision of Licensee; products and completed 61147.80007\40783575.1 12 operations of Licensee; or premises owned, occupied or used by Licensee. The coverage shall contain no special limitations on the scope of protection afforded City, its officers, employees, agents, or volunteers. 9.1.3. Notice of Cancellation/Termination of Insurance: The above policy/policies shall not terminate, nor shall they be canceled, nor the coverages reduced, until after thirty (30) days' written notice is given to City, except that ten (10) days' notice shall be given if there is a cancellation due to failure to pay a premium. 9.2. Copy of Policy and Endorsements. The Licensee shall provide the City with a copy of the policy, including an endorsement that states that the policy will not be cancelled except after ten (10) days’ notice in writing to the City. 10. Termination. This Agreement may be terminated upon the default of one of the Parties if such default is not cured within ninety (90) days following written notice of such default from non-defaulting Party. In the event of a dispute between the Parties, City and Licensee shall meet and confer regarding the matter. If the dispute cannot be resolved through a meet and confer session, then the Agreement may be terminated by the non-defaulting Party 10.1. In the event Licensee files for bankruptcy or is found to be in a state of insolvency, then City shall have the right to terminate this Agreement and all further rights and obligations hereunder by ten (10) days’ written notice to Licensee. Upon the expiration of the ten (10) days’ notice this Agreement shall automatically terminate. 11. Possessory Interest Tax Notice. Licensee hereby recognizes and understands that this Agreement may create a possessory interest subject to property taxation, and that Licensee may be subject to the payment of property taxes levied on such interest. Any such imposition of a possessory interest tax shall be a tax liability of Licensee solely, notwithstanding any provision of this Agreement to the contrary. Licensee shall promptly notify City of any possessory interest tax imposed against Licensee’s interest in the License Area, and shall provide City with a copy of any bill or assessment imposing the possessory interest tax. Licensee shall remit to the taxing agency the amount of the possessory interest tax imposed against Licensee, and shall notify City in writing of the payment. Licensee acknowledges that City, in accordance with California Revenue and Taxation Code Section 107.6, has given notice to Licensee that Licensee may be subject to property taxation, and that Licensee may be subject to the payment of property taxes levied on the possessory interest created by this Agreement and license. Licensee shall be fully responsible for the payment of all possessory interest taxes levied and/or assessed during the term of this Agreement regarding the license. 12. 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 61147.80007\40783575.1 13 action or proceeding by the prevailing Party. If any legal action or proceeding arising out of or relating to this Agreement is brought by a third party, the Parties 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 in accordance with the Indemnification provisions of Section 8, above. 13. Governing Law and Venue. This Agreement shall be governed by the laws of the State of California. Venue shall be in Orange County. 14. 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. 15. 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. 16. Assignment or Transfer. 16.1. 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, hypothecate, or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation, or transfer. Unless specifically stated to the contrary in the City’s written consent, any assignment, hypothecation, or transfer shall not release or discharge the Licensee from any duty or responsibility under this Agreement. 16.2. Merger. The transfer of a majority of the ownership interests in the Licensee, however accomplished, and whether in a single transaction or in a series of related or unrelated transactions, or the merger of the Licensee into any other entity in which the Licensee is not the surviving entity, or the sale of all or substantially all of the Licensee’s assets, shall be deemed an assignment of the Licensee’s rights hereunder subject to the requirements of Section 16.1 (No Assignment without the City’s Consent). 17. No Relocation Benefits. This Agreement is not intended to convey a property interest but to permit the Licensee to use the License Area 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 Agreement, expressly waives all such present and future rights, if any, to which 61147.80007\40783575.1 14 the Licensee might otherwise be entitled from the City with regard to this Agreement and the business operated on the License Area. The Licensee shall not be entitled to relocation assistance, relocation benefits, or compensation for loss of goodwill upon the termination of this Agreement. 18. Construction, References, and Captions. 18.1. Simple Construction. The Parties agree that , the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. 18.2. 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. 18.3. Calendar Days. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days. 18.4. 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 19. 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 License Area 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. 20. 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 20 (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 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager Evan Marks, Executive Director The Ecology Center 32701 Alipaz Street San Juan Capistrano, CA 92675 61147.80007\40783575.1 15 21. Entire Agreement and Severability. 21.1. 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. 21.2. 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. 22. Binding Effect. 22.1. 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. 22.2. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 22.3. Not Authorization to Assign. This Section 22 (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 16 (Assignment or Transfer). Signatures on next page. 61147.80007\40783575.1 1616 SIGNATURE PAGE TO LICENSE AGREEMENT LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND ECOCENTER,INCNC.,.,DBA THE ECOLOGY CENTER FOR THE PROPERTY LOCATED AT 32701 ALIPAZ STREET,SAN JUAN CAPISTRANO In witness thereof, the Parties here to have executed this Agreement: City of San Juan Capistrano A California municipal corporation Ecocenter, Inc. By: ________________________________ _ By: ________________________________ _ BENJAMIN SIEGEL City Manager EVAN MARKS, Executive Director ATTEST: By: ________________________________ _ APPROVED AS TO FORM: By: ________________________________ _ JEFF BALLINGER, City Attorney 61147.80007\40783575.1 A-1 EXHIBIT “A” SITE PLAN