22-1213_THE ECOLOGY CENTER_License Agreement61147.80007\40783575.1
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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
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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
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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.
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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;
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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