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23-0606_SAN JUAN CAPISTRANO FRIENDS OF THE LIBRARY_License Agreement1 LICENSE AGREEMENT BY AND BETWEEN THE CITY OF SAN JUAN CAPISTRANO AND THE SAN JUAN CAPISTRANO FRIENDS OF THE LIBRARY, INC. PARTIES AND DATE This License Agreement (“Agreement”) is entered into as of this _6th____ day of June, 2023 (“Effective Date”) by and between the City of San Juan Capistrano, a California municipal corporation (the “City”) and San Juan Capistrano Friends of the Library, Inc. a California nonprofit corporation (the “Licensee”). City and Licensee are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the “Parties.” RECITALS A. The City is the owner of the La Sala Facility located at 31495-A El Camino Real Capistrano, San Juan Capistrano (the “Licensed Area”). B. Licensee is a California nonprofit corporation dedicated to raising funds and promoting the services for the San Juan Capistrano Public Library (the “Library”) and requests to operate a retail bookstore, including space for the storage of books, the sorting of books and the storage of other donated items. C. The City supports the services to the community and benefits provided by Licensee and desires to enter into this Agreement to allow the Licensee to use the bookstore, as well as ancillary areas which include the office space, storage space, and the trash enclosure located at the La Sala Facility at no cost in accordance with the terms and conditions set forth in this Agreement. D. The Parties also request a Facility Use Permit Fee Waiver (Waiver) to allow Licensee to conduct a limited number of fundraising activities, monthly appreciation membership programs, and monthly meetings to be held at the La Sala facility (auditorium, courtyard, foyer and kitchen) with the intent of raising funds and creating community awareness about supporting the Library in accordance with the terms and conditions set forth in this Agreement. TERMS 1. Grant of License. 1.1. City grants to Licensee a license to use the Licensed Area (as shown on Exhibit A, attached hereto and incorporated herein by this reference as though fully set forth herein) (collectively referenced herein as “License Areas”), to be utilized solely as follows: 1.1.1. Bookstore. Licensee shall be limited to utilize the bookstore to operate a retail storefront to sell books and materials so long as said operation is for the for the sole purpose of providing financial support to benefit the Library. 2 1.1.2. Office Space. Licensee may utilize the office space for storage, sorting of books, and the storage of other donated items. 1.1.3. Trash Enclosure. Licensee may utilize the La Sala Facility Trash Enclosure for disposal of items directly related to Licensee’s use of the La Sala Facility and is restricted from disposing of hazardous waste or electronics. The trash enclosure shall remain locked at all times. At any point during the term of the agreement, the City may impose additional requirements or modify Licensee’s use of the Trash Enclosure. 1.1.4. Storage Area. 1.1.4.1. Licensee may utilize the Storage Area to temporarily store overflow books awaiting weekly pick-up. 1.1.4.2. The Storage Area shall not be used for permanent storage of books or other donated items. 1.1.4.3. All books must be neatly stored within the Storage Area. Licensee shall not store any items except books, magazines, audio books, archived documents, and office supplies or materials in the Storage Area. 1.1.4.4. The Storage Area shall be kept clean of debris at all times in a manner acceptable to the Director/Manager of Community Services. 1.1.4.5. Licensee shall not make any alterations to the Storage Area without prior written approval from the City. 1.1.4.6. If Licensee violates provisions of Section 1.1.4, the City shall provide Licensee with written notice to remove all items from the Storage Area. Removal of all items shall be completed within five (5) days of receipt of written notice from the City. 1.1.5. Book Bin. One Book Collection Bin is installed at driveway entrance to the La Sala Facility. The location of this Book Collection Bin is identified on Exhibit A, and this location shall not be modified without the prior written authorization of the City. The Book Collection Bin shall be secured and installed by the Licensee consistent with the manufacturer’s recommendations and in a manner acceptable to the Community Services Director/Manager. 1.1.6. There shall be no other areas on the Property used for storage, except as provided above. 3 1.1.7. At all times, the Licensed Area shall be maintained neatly by the Licensee and shall not create any hazardous situations. 1.1.8. City reserves the right to enter the Property at any time for purposes of inspection and to perform any emergency repairs. Licensee shall be given reasonable notice when necessary maintenance or repair activities are scheduled 1.1.9. This License is granted solely for Friends of the Library purposes. Licensee shall not allow any other person or group to utilize the License Areas without City’s written authorization for use in compliance with Section 14 of this License. 2. Scope of Licensee for events. 2.1 The City grants to Licensee, its contractors, volunteers, and agents a non- exclusive revocable temporary license to use the La Sala Facility including the Auditorium, Courtyard, Kitchen and Foyer as described below: 2.2 Licensee may conduct up to Eighteen (18) events in total annually. Such events include membership meetings, community events, volunteer appreciation programs, and fundraising activities. 2.3 Prior to any event, Licensee will be required to complete a facility use application for membership meetings, community events, volunteer appreciation programs, and fundraising activities to be held at the La Sala Facility. 2.4 Licensee shall submit a facility use application to the City no less than thirty (30) days prior to scheduled event. In order for any event to proceed it shall have an approved application issued by City. 2.4.1 Approval for a request less than thirty (30) days will be at the sole and absolute discretion of the Community Services Department. 2.5 Licensee understands and accepts that City shall not approve any Facility Use Application if the La Sala Facility has already been reserved by another party. 2.6 Events that the Licensee may request more than ninety (90) day advance approval include events where Licensee hires a guest speaker, advanced deposit or fee is required or needs to conduct significant advertising. 3. Other Uses. The Licensee may not use the La Sala Facility for any other purpose or business without obtaining the City’s prior written consent. 4. Term. This Agreement shall be effective for five (5) years commencing on the Effective Date, except as otherwise provided in this Agreement. This Agreement may be extended for up to a maximum of three (3) additional 1 year terms, upon the mutual written agreement of both parties. 4 5. Facility Use Fees. 5.1. In consideration of Licensee’s nonprofit status and its contributions to the Library, the City agrees to provide a waiver of fees for the use of the Property. 5.2 Licensee will be responsible for providing a one-time refundable rental deposit at the time the application is submitted. The refundable rental deposit may be retained on file and replaced annually. 5.2.1 The deposit will be refunded so as long as the associated conditions and policies are followed. 6. Utilities. The City will be responsible for existing utilities and reasonable utility costs, except for telephone and internet services. City is not responsible for any security or alarm services. 7. Acceptance of Condition. Licensee accepts the Property in its present “AS IS” condition upon execution of this Agreement, and agrees to assume all further liability arising out of the condition of the property. Licensee understands and acknowledges that the Property may contain hazardous conditions which may present danger and/or risks to the persons or property. City, its officials, employees, representatives and agents, have not made representations or warranties, express or implied, as to the condition of the property, or the suitability of the Property for any purpose. 8. Licensee obligations. 8.1. Licensee shall, at all times, keep City advised of the name, address, and telephone number of the person responsible for the operation of the San Juan Capistrano Friends of the Library. Up to two (2) keys for the Storage Area shall be issued and signed for by this person. The keys issued shall not be copied by Licensee. Additional keys will be issued at the discretion of the City and shall incur a fee of $50.00. Lost keys will be replaced for a fee of $250.00. 8.2. Licensee shall, at all times, take and maintain the utmost caution and care in every respect of its operation and shall observe and maintain the highest standard of safety. 8.3. Janitorial, Maintenance and Repair by Licensee. Licensee shall at Licensee’s sole expense, provide janitorial services to the Property, as well as use reasonable care to keep the Property clean of debris, and keep the Property in good condition and repair, reasonable wear and tear excepted. 8.4. Licensee shall submit an annual performance report to the Community Services Manager. The annual performance report shall be due July 15 of each year during the term of this License. The annual performance report shall include the following: 5 8.4.1. Description of all activities the Licensee has conducted on the property, 8.4.2. An accounting of all donations that Licensee received from those activities, 8.4.3. Benefits members or members of the public received from activities, 8.4.4. Proof of Licensee’s continued non-profit status, 8.4.5. An accounting of the total revenue received and expenditures incurred by Licensee during the reporting period, and 8.4.6. Disclosure of the sources of that revenue. 8.5. Licensee shall ensure that any and all lights are turned off, including the lights in the restrooms, the air conditioning is shut off and all doors are locked within the License Areas. 8.6. At no time may alcohol be served, sold or consumed within the License Areas, unless Licensee receives approval of an Application to Serve and Consume Alcoholic Beverages in City Facilities from the City. 8.7. On or before the termination or expiration of this Agreement, the Licensee shall remove all of Licensee’s personal property from the Property and return all City issued keys to the Community Services Manager. Licensee shall surrender possession of the Property to the City in good order and repair to the satisfaction of the City, normal wear and tear excepted. 9. Insurance 9.1. Time for Compliance. Licensee shall provide evidence satisfactory to the City that it has secured all insurance required under this Section. 9.2. The Licensee shall take out and maintain, during term of this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. 9.3. 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: 9.3.1. Bodily Injury and Property Damage 9.3.2. Personal Injury/Advertising Injury 9.3.3. Premises/Operations Liability 9.3.4. Products/Completed Operations Liability 6 9.3.5. Aggregate Limits that Apply per Project 9.3.6. Explosion, Collapse and Underground (UCX) exclusion deleted 9.3.7. Contractual Liability with respect to this Agreement 9.3.8. Broad Form Property Damage 9.3.9. Independent Licensees Coverage 9.4. 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. 9.5. 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. 9.6. The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. 9.7. Minimum Policy Limits Required. Licensee shall maintain Commercial General Liability with a limit of $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property damage. 9.8. Policy Provisions Required 9.8.1. Licensee shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Licensee shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Licensee shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration. 9.8.2. The Commercial General Liability Policy shall contain a provision stating that Licensee’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss. 9.8.3. The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Licensee shall maintain such coverage continuously for a period of at least three years after the 7 termination of this Agreement. Licensee shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement. 9.8.4. All required insurance coverages, shall contain or be endorsed to waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City. 9.8.5. The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability. Further the limits set forth herein shall not be construed to relieve the Licensee from liability in excess of such coverage, nor shall it limit the Licensee’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law. 9.9. Qualifying Insurers 9.9.1. All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements: 9.9.2. Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. 9.10. Additional Insurance Provisions 9.10.1. The foregoing requirements as to the types and limits of insurance coverage to be maintained by Licensee, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Licensee pursuant to this Agreement, including but not limited to, the provisions concerning indemnification. 9.10.2. 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 8 Licensee or City will withhold amounts sufficient to pay premium from Licensee payments. In the alternative, City may cancel this Agreement. 9.10.3. The City may require the Licensee to provide complete copies of all insurance policies in effect for the duration of the Agreement. 9.10.4. 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. 10. Indemnification. 10.1. To the fullest extent permitted by law, Licensee shall defend (with counsel reasonably approved by the City), indemnify and hold the City, its officials, officers, employees, agents and volunteers free and harmless from any and all claims, demands, causes of action, suits, actions, proceedings, costs, expenses, liability, judgments, awards, decrees, settlements, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, (collectively, “Claims’) in any manner arising out of, pertaining to, or incident to any alleged acts, errors or omissions, or willful misconduct of Licensee, its officials, officers, employees, subcontractors, Licensees or agents in connection with the performance of the Licensee’s services, this Agreement, including without limitation the payment of all consequential damages, expert witness fees and attorneys’ fees and other related costs and expenses. Notwithstanding the foregoing, to the extent Licensee’s services are subject to Civil Code Section 2782.8, the above indemnity shall be limited, to the extent required by Civil Code Section 2782.8, to Claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Licensee. Licensee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, agents or volunteers . 10.2. Additional Indemnity Obligations. Licensee shall defend, with counsel of City’s choosing and at Licensee’s own cost, expense and risk, any and all Claims covered by this section that may be brought or instituted against the City, its officials, officers, employees, agents or volunteers. Licensee shall pay and satisfy any judgment, award or decree that may be rendered against the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Licensee shall also reimburse City for the cost of any settlement paid by the City, its officials, officers, employees, agents or volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment for the City's attorney's fees and costs, including expert witness fees. Licensee shall reimburse the City, its officials, officers, employees, agents and volunteers, for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Licensee's obligation to indemnify shall not be restricted 9 to insurance proceeds, if any, received by the City, its officials, officers, employees, agents and volunteers. 11. Termination. City shall have the right to terminate this Agreement “AT WILL” and for no cause. No termination hereof shall release Licensee or its respective successor or assigns from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events occurring prior to the effective date of such termination. 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 action or proceeding by the prevailing party. 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. No Assignment without the City’s Consent. The Licensee shall not assign, hypothecate, or transfer, either directly or by operation of law, this Agreement or any interest herein without prior written consent of the City. Any attempt to do so shall be null and void, and any assignee, or transferee shall acquire no right or interest by reason of such attempted assignment, or transfer. Unless specifically stated to the contrary in the City’s written consent, any assignment, or transfer shall not release or discharge the Licensee from any duty or responsibility under this Agreement. 17. No Relocation Benefits. This License is not intended to convey a property interest but to permit the Licensee to use the property as provided for herein. The Licensee acknowledges the rights granted by State and/or Federal Relocation Assistance Laws and regulations and, notwithstanding any other provision of this License, expressly waives all such present and future rights, if any, to which the Licensee might otherwise be entitled from the City with regard to this License and the business operated on the property. The Licensee shall not be entitled to 10 relocation assistance, relocation benefits, or compensation for loss of goodwill upon the termination of this License. 18. Relationship Between the Parties. The Parties hereby mutually agree that neither this Agreement, nor any other related entitlement, permit, or approval issued by the City for the Property shall operate to create the relationship of partnership, joint venture, or agency between the City and the Licensee. The Licensees’ contractors and subcontractors are exclusively and solely under the control and dominion of the Licensee. Nothing herein shall be deemed to make the Licensee or its contractors or subcontractors an agent or contractor of the City. 19. Notices. All notices to be given hereunder shall be in writing and may be made either by personal delivery or by registered or certified mail, postage prepaid, return receipt requested. Mailed notices shall be addressed to the parties at the addresses listed below, but each party may change the address by written notice in accordance with this Section 18 (Notices). Notices delivered personally will be deemed communicated as of actual receipt; mailed notices will be deemed communicated as of two (2) days after mailing. 11 To City: To Licensee: City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Attn: City Manager San Juan Capistrano Friends of the Library 31495-A El Camino Real San Juan Capistrano, CA 92675 Attn: Hilary Keith, President 20. Entire Agreement and Severability. 20.1. Entire Agreement. This Agreement contains the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all prior negotiations, understandings or agreements, either written or oral, express or implied. 20.2. Severability. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 21. Binding Effect. 21.1. The Parties. Each and all of the terms and conditions of this Agreement shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns. 21.2. Successors and Assigns. This Agreement shall be binding on the successors and assigns of the Parties. 21.3. Not Authorization to Assign. This Section 20 (Binding Effect) shall not be construed as an authorization for any Party to assign any right or obligation under this agreement other than as provided in Section 14 (Assignment or Transfer). Signatures on next page. A-1 EXHIBIT “A”