Adelanto City Council
September 28, 2022

identified as to the applicable findings, have been filed with the California Building Standards Commission. HSC, Section 17958.7(a).

Local Government Amendments under the State Housing Law The State Housing Law provides for amendment of building standards related to residential construction and for amendment of Title 25. • The governing body of a local jurisdiction shall make an express finding that amendments to either the building standards, including green building standards, and the adoption of appendices for residential construction contained in Title 24, or the regulations of the Department of Housing and Community Development contained in Title 25, are reasonably necessary because of local climatic, geological, or topographical conditions. HSC, Sections, 17958.5 and 17958.7(a).

There is an exception in Title 25, Section 52 to the requirement for an express finding where alternate abatement procedures are determined by the local enforcement agency to be the equivalent of those contained in Title 25. • Unlike the California Building Standards Law, there is no specific requirement in the State Housing Law that local government amendments provide either more restrictive building standards, including green building standards, than those contained in Title 24, or more restrictive regulations than those contained in Title

25. However, Title 24 provisions are the minimum standards, thus local amendments must be equivalent or more restrictive, but not less restrictive. HSC, Sections, 17958.5, 17958.7(a), and 18941.5(b)
• The local amendments are not effective or operative until a copy of the express findings and the amendments, with the amendments expressly marked and identified as to the applicable findings, have been filed with the California Building Standards Commission. HSC, Section 17958.7(a).

Filings with the California Building Standards Commission Filings submitted to the California Building Standards Commission (CBSC) are reviewed and processed in the following manner:
• The absence of a filing with CBSC of local government amendments implies that Title 24 is applicable within that local jurisdiction without amendment. HSC, Section 17958.
• Local ordinances that only adopt Title 24 by reference without amendments need not be filed with the California Building Standards Commission or the Department of Housing and Community Development. Refer to HSC, Section 18909 regarding a local regulation that is not deemed a building standard and does not require filing.
• CBSC is not authorized by law to evaluate the merits of the express findings that support the local climatic, geological, or topographical (environmental for CALGreen) conditions necessitating its amendments.
• CBSC may reject, in writing, any filings by local governments proposing to adopt and amend model codes adopted by California without California amendments included. Only Title 24, incorporating model codes and including California amendments by the state agencies, and the related regulations of the 184

Department of Housing and Community Development, are subject to adoption and amendment by local governments. HSC, Sections 17958.5 and 17958.7. • CBSC may reject, in writing, a local government filing for the following reasons:
o No express finding was submitted with the proposed amendments. HSC, Section 17958.7.
o The proposed amendments are not expressly marked and identified as to the applicable express findings. HSC, Section 18941.5.
o There is no evidence by signature(s), certification of the city/county clerk, transmittal letter or other reasonable means to validate that the express findings were a lawful action of the governing body of the local jurisdiction. • CBSC will issue a letter to the local enforcement agency stating that the code modifications are accepted for filing when they meet the requirements of Health and Safety Code Sections 17958.7 and 18941.5.

Local Amendments for Universal Design in Housing
HSC Section 17959 authorizes local ordinances for universal design in residential occupancies based on guidelines and the Universal Design Model Ordinance developed by HCD. In general, the HCD model ordinance applies to new or substantially rehabilitated single-family, duplex, and triplex residential dwellings, except for custombuilt homes, that are not otherwise subject to the accessibility requirements in Part 2 of Title 24. These ordinances are filed with HCD.

Local Amendments for Shelter Crisis
Government Code (GOV) Sections 8698.3 and 8698.4 permit local jurisdictions to adopt ordinances to address shelter crises arising from homelessness or a natural disaster, such as fire. These local jurisdictions, upon declaring a shelter crisis, may adopt reasonable local standards and procedures for the design, site development and operation of shelters in lieu of compliance with state and local building approval procedures or state housing, health, habitability, planning, zoning or safety standards, procedures and laws. To assist locals with quickly adopting shelter crisis regulations, Appendix O of the CBC and Appendix X of the CRC are available for adoption by ordinance without the need for express findings. Appendices O and X are the minimum standards that must be met by a local shelter crisis ordinance. Refer to HCD’s Information Bulletin 2020-09 for filing of Emergency Housing Ordinances with HCD.

Local Amendments for Shelter Crisis- Fire and Life Safety Government Code (GOV) Section 8698.1 permits a local jurisdiction with a population over 3.5 million to adopt ordinances related to fire and life safety to address shelter crises arising from homelessness or a natural disaster, such as fire. The alternative standards must be reasonable and, at a minimum, meet the requirements listed in the law and filed with the State Fire Marshal.
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Local Amendments under the Fire Protection District Law Local government amendments to building standards in Title 24 adopted by the State Fire Marshal for fire and panic safety that are more stringent are permitted under this provision of state law for fire protection districts organized under HSC, Division 12, Part

2.7. There are differences in how these amendments are implemented. These ordinances are filed with HCD.

Local Amendments for Energy Conservation
Public Resources Code (PRC) Section 25402.1(h)(2) allows more stringent local amendments to the energy conservation provisions in the California Energy Code, Title 24, Part 6. The California Administrative Code, Title 24, Part 1, Chapter 10, Section 10- 106, requires local government to gain approval from the California Energy Commission (CEC) for any local energy conservation requirement more restrictive than the regulations in the Energy Code. Filed with CBSC and application approval by the CEC.

Local Amendments under the State Historical Building Code HSC, Division 13, Part 2.7 (the State Historical Building Code), Section 18959 (f), authorizes local government to make amendments to the California Historical Building Code, Part 8 of Title 24, for qualified historical buildings. Filed with the State Historical Building Safety Board.

Local Amendments under the Earthquake Protection Law
CBSC does not review ordinances developed pursuant to the Earthquake Protection Law (HSC Section 19100, et seq.) relative to seismic retrofit standards for seismically hazardous buildings. HSC Section 19165 requires these amendments be filed with HCD for informational purposes.

Local Amendments for Accessory Dwelling Units
Local amendments developed for the purpose of regulating accessory dwelling units pursuant to GOV Section 65852.2 are subject to the requirements of those provisions of law and local building code requirements that apply to detached dwellings. Filed with HCD.

Note: Refer to the 2022 Guide for Local Amendments of Building Standards for detailed filing requirements for each of these types of amendments.

Submitting Accessible Documents for Posting on CBSC’s Website In accordance with GOV Sections 7405,11135 and11546.7, in order for ordinances to be posted to CBSC’s website for viewing or downloading by the public, they must be provided in a format that is accessible to persons with disabilities. The applicable standards for accessible documents are as follows:
• Meet WCAG 2.0 AA (see * below) standards for document attributes including headers, lists, tables, alternative text for images (including signatures and logos), font and text styles, color and/or meaningful links
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CBSC will review submitted documents for accessibility and will not be able to remediate those that do not meet these standards. When an ordinance document is not accessible, CBSC’s local amendments webpage will only list the identification number of the ordinance. Constituents will then be able to request a copy by contacting CBSC or the local jurisdiction.

Another alternative is for a jurisdiction to provide a link to the ordinance posted on their own website and that link will be shared on CBSC’s website.

CBSC highly encourages jurisdiction staff to obtain training in creating accessible documents to proactively meet the needs of constituents now and in the future. Some resources for accessibility information and training are:
• California Department of Technology (CDT) Web Accessibility Training at cdt.ca.gov/workforce-development/course-schedule/
• California Department of Rehabilitation (DOR) Accessibility Training at https://www.dor.ca.gov/Home/disabilityaccessservices
• Document Accessibility Information at dor.ca.gov/Home/DocumentAccessibility • Guides for Creating Accessible Documents at
dor.ca.gov/Home/ConstructingAccessibleElectronicContent • *Web Content Accessibility Guidelines (WCAG) by the World Wide Web Consortium (W3C) at www.w3.org/TR/WCAG20/
Local Administrative Ordinances
Local regulations necessary to carry out procedures by a city, county, or city and county relating to civil, administrative, or criminal procedures and remedies available for enforcing code violations, and that do not establish building standards, may be enacted without meeting the requirements of HSC, Sections 17958, 17958.5, 17958.7 and 18941.5.

However, amendments to administrative provisions in Title 24 that relate to the implementation or enforcement of a building standard that do not have express findings that each amendment is reasonably necessary because of local climatic, geological, topographical, or environmental conditions and/or are not expressly marked is reason for rejection of the filing.

An example of an amendment of an administrative requirement necessitating an express finding is where a local ordinance changes when a permit is required by modifying the height provision for a fence. The administrative provisions of Title 24 do not require a permit for fencing not over 7 feet in height. A local ordinance changing the height requirement to 6 feet necessitates a permit, and compliance with design provisions (building standards) would be mandatory, thereby implementing or enforcing a building standard.

Local Approval of Alternatives
Local building departments have authority under HSC, Section 17951(e) to allow alternative materials and methods of construction that are not specifically adopted in Title 24. Said section is from the State Housing Law with application to the design and construction of hotels, motels, lodging houses, apartments, condominiums, and dwellings. Thus, an alternative material or method of construction not specifically 187

adopted in Title 24 may be approved on a case-by-case basis for residential structure construction under the conditions stated in HSC, Section 17951(e), without the need for a local ordinance or code amendment. Additionally, Chapter 1 of various parts of Title 24 allows for the use of alternate materials, design, and methods of construction for both residential and nonresidential occupancies.

Additional Resources
The Local Code Ordinances webpage on CBSC’s website has a number of helpful resources including the 2022 edition of the Guide for Local Amendments of Building Standards, the 2022 California Code Adoption for Local Jurisdictions video presentation and a list of acceptable ordinances that were filed in accordance with state law. This video is a joint effort with the California Building Standards Commission, JAS Pacific, and the International Code Council. We highly recommend reviewing the guide and video after reading this bulletin, as these additional resources provide an in-depth overview of required ordinance filings with numerous state agencies and the approval of certain building standards such as amendments to the California Energy Code, Part 6 of Title 24. Additionally, please see BSC Information Bulletin 22-01 Announcing 2022 Codes and BSC Information Bulletin 22-03 NFPA Tentative Interim Amendments.

Questions or comments regarding the contents of this information bulletin should be directed to CBSC’s staff at (916) 263-0916 or via email at [email protected].

Mia Marvelli
Executive Director
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CITY COUNCIL AGENDA REPORT
DATE: September 28, 2022
TO: Honorable Mayor and City Council Members
FROM: Jessie Flores, City Manager
BY: City Attorney
SUBJECT: APPROVAL OF SPECIAL LEGAL SERVICES AGREEMENT WITH BARON & BUDD, P.C. and COSSICH, SUMICH, PARSIOLA & TAYLOR LLC
STAFF RECOMMENDS:

Staff recommends that the City Council move to adopt the attached resolution approving an agreement with Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC for special legal services.

BACKGROUND:

Per- and polyfluoroalkyl substances (“PFAS”) including, but not limited to, perfluorooctanoic acid (“PFOA”) and/or perfluorooctane sulfonic acid (“PFOS”) have been detected in Adelanto’s groundwater supply.

It is believed that compounds and solutions containing PFAS were utilized at George Air Force Base while it was active (1941-1992). Multiple governmental agencies in California and throughout the United States have commenced litigation against the manufacturers of such compounds and solutions.

Multiple manufacturers have been named as defendants for their role in manufacturing PFAS.

Multiple cases have all been transferred to federal court and have been consolidated. The consolidated case is under federal court jurisdiction in South Carolina. The Judge overseeing the case appointed law firms Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC (the “Firms”) to represent public agencies in this matter. It is anticipated the legal process can take up to 3 or more years.

If retained, the Firms will provide legal services to the City of Adelanto with respect to damages, compensation, and other relief to which the City may be entitled to as a result of an Action filed on the City’s behalf against the manufacturer(s) and supplier(s) of firefighting foam products (known as “aqueous film forming foam” or “AFFF”) and/or other products containing PFAS, PFOA or PFOS, and any other related compounds.

Staff recommends that the City retain the Firms to seek recovery of the substantial costs necessary to ensure a safe and reliable drinking water supply from wells that have been, and continue to be, impacted by PFAS including but not limited to PFOA and/or PFOS. 189
September 28, 2022

If retained, the City Attorney's Office, the City Manager, and the City’s Water Manager will remain in communication with the Firms to provide data and necessary information, allow for inspections, and respond to requests related to the City’s water system. The Firms will incur any and all costs associated with the legal services based a contingency fee.

CONCLUSION:

If approved, the City will enter into an agreement with Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC for special legal services to seek recovery of the substantial costs necessary to ensure a safe and reliable drinking water supply from wells that are impacted by PFAS including but not limited to PFOA and/or PFOS.

FISCAL IMPACT:

No fiscal impact. The special legal services agreement operates under a 25% contingency basis, which means there is no cost to the City. If the City were to succeed, Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC will recover 25% of any recovery.

ATTACHMENTS:

Exhibit 1 - Resolution No. 22-65
Exhibit 2 - Legal Services Agreement
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RESOLUTION NO. 22-65

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ADELANTO, COUNTY OF SAN BERNARDINO,

CALIFORNIA, APPROVING THE CITY ENTERING INTO
AN AGREEMENT WITH BARON & BUDD, P.C. AND

COSSICH, SUMICH, PARSIOLA & TAYLOR LLC FOR

SPECIAL LEGAL SERVICES
WHEREAS, the City of Adelanto (the “City”), through the Adelanto Public Utility Authority, is the owner of the Adelanto Water Department and the City’s municipal water system operated by multiple wells providing groundwater; and
WHEREAS, Per- and polyfluoroalkyl substances (“PFAS”) including, but not limited to, perfluorooctanoic acid (“PFOA”) and/or perfluorooctane sulfonic acid (“PFOS”) have been detected in Adelanto’s groundwater supply; and
WHEREAS, the City learned of pending legal actions relating to PFAS, in which multiple manufacturers have been named as defendants for their role in manufacturing PFAS; and WHEREAS, the City desires to weigh its options and seek to recover the substantial costs necessary to ensure a safe and reliable drinking water supply from wells that have been impacted by PFAS including but not limited to PFOA and/or PFOS; and WHEREAS, Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC are able to provide legal services to the City of Adelanto with respect to damages, compensation, and other relief to which the City may be entitled as a result of an Action to be filed by these firms on behalf of the City against the manufacturer(s) and supplier(s) of firefighting foam products (known as “aqueous film forming foam” or “AFFF”) and/or other products containing PFAS, PFOA or PFOS, and any other related compounds; and
WHEREAS, the City now desires to enter into the Agreement for special legal services by and between the City and Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Adelanto hereby approves and award for one year a Non-Exclusive Revocable License Agreement for the Glasper Center to South Capitol Cottage, Inc., a non-profit tax-exempt organization, which seeks to help improve the quality of life for the residents of Adelanto, especially its youth and young adult population.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Adelanto as follows:

SECTION 1. The City Council of the City of Adelanto hereby finds that the above recitals are true and correct and incorporated them herein by this reference. 191
Resolution No. 22-65

SECTION 2. Based upon the above recitals, the staff report accompanying this Resolution, and such other oral and written evidence, the Adelanto City Council finds that that the City should seek legal services to weigh its options against the PFAS manufacturers for the reasons stated in the recitals and hereby approves entering into the agreement with Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC.

SECTION 3. The City Council further approves an Agreement with Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC in substantially the same form as Exhibit “2” to the Agenda Report accompanying this Resolution and authorizes and directs the City Manager to execute the Agreement, along with all exhibits thereto, and other ancillary documents necessary to effectuate the intent and objectives of the Agreement and this Resolution.

SECTION 4. The City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original resolutions, and it shall become effective immediately upon approval.

PASSED, APPROVED AND ADOPTED this 28th day of September, 2022. ______________________________
Gabriel Reyes, Mayor
_______________________________
Brenda Lopez, City Clerk
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Resolution No. 22-65

I, Brenda Lopez, City Clerk of the City of Adelanto, California, do hereby certify that the foregoing Resolution No. 22-65was duly and regularly adopted at a regular meeting of the City Council of the City of Adelanto on this 28th day of September 2022 be the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

IN WITNESS THEREOF, I hereunto set my hand and affix the official seal of the City of Adelanto on the 28th day of September 2022.
______________________________
Brenda Lopez, City Clerk
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LEGAL SERVICES AGREEMENT

1. IDENTIFICATION OF PARTIES. This Agreement is made between City of Adelanto (“Client”) and the law firms of Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC, (collectively referred to as “Attorneys”).

2. RETENTION OF FIRM RATHER THAN PARTICULAR ATTORNEY. By signing this Agreement, Client retains the law firms. Attorney services will be provided to Client by the firms and will not necessarily be performed by any particular attorney.

3. AUTHORIZED REPRESENTATIVE OF CLIENT. Client designates ________________________________________________ as the authorized representative to direct Attorneys and to be the primary individual to communicate with Attorneys regarding the subject matter of Attorneys’ representation of Client under this Agreement. This designation is intended to establish a clear line of authority and to minimize potential uncertainty, but not to preclude communication between Attorneys and other representatives of Client.

4. SCOPE AND DUTIES. Attorneys will provide legal services to Client with respect to damages, compensation, and other relief to which Client may be entitled as a result of an Action to be filed by Attorneys on behalf of Client against the manufacturer(s) of firefighting foam products (known as “aqueous film forming foam” or “AFFF”) and/or other products containing perfluoroalkyl substances (“PFAS”) (including perfluorooctanoic acid (“PFOA” or “C8”), perfluorooctane sulfonate (“PFOS”), and any other related compounds). Client hires Attorneys to provide legal services in connection with pursuing claims against all those responsible for damages Client suffered or will suffer. Attorneys shall provide those legal services reasonably required to represent Client, and shall take reasonable steps to keep Client informed of progress and to respond to Client’s inquiries. Client shall be truthful with Attorneys, cooperate with Attorneys, and keep Attorneys informed of any and all factual developments.

5. LEGAL SERVICES SPECIFICALLY EXCLUDED. Unless otherwise agreed in writing by Client and Attorneys, Attorneys will not provide legal services with respect to (a) defending any legal proceeding or claim against the Client commenced by any person unless such proceeding or claim is filed against the Client in the Action or (b) proceedings before any federal or state administrative or governmental agency, department, or board including, but not limited to, the United States Environmental Protection Agency. With Client’s permission, however, Attorneys may elect to appear at such administrative proceedings to protect Client’s rights. If Client wishes to retain Attorneys to provide any legal services not provided under this Agreement for additional compensation, a separate written agreement between Attorneys and Client will be required.

6. JOINT RESPONSIBILITY. Baron & Budd, P.C. and Cossich, Sumich, Parsiola & Taylor LLC assume joint legal responsibility to Client for the representation described in this Agreement, and agree to be available for consultation with the client. Client approves of and consents to the participation of the firms in their representation.
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7. ATTORNEYS’ FEES. Client and Attorneys have agreed that Client will pay Attorneys a contingent fee for representing Client in this matter. The fee is not set by law but is negotiable between Attorneys and Client. Attorneys and Client agree that the contingent fee will be calculated as described below.

A. Calculation of Contingent Fee
Attorneys will receive a contingency fee of 25% of any gross recovery (as defined below).

The contingent fee is to be calculated based on Client’s gross recovery before deduction of costs and expenses (as defined below).

The contingent fee is calculated by multiplying the gross recovery by the fee percentage.

B. Definitions
“Costs” and “Expenses” include, but are not limited to, the following: process servers’ fees, court reporters’ fees, document management costs, messenger and other delivery fees, parking, investigation expenses, consultants’ fees, expert witness fees, expert fees, fees fixed by law or assessed by courts or other agencies, and other similar items, incurred by Attorneys in the course of representing Client. “Document Management Costs” are the costs associated with collecting, copying, and storing documents relevant to the Action as discussed in paragraph 8, below. These costs include processing and hosting charges, hardware, software, and any other resources necessary to manage documents.
“Gross recovery” means the total recovery, whether obtained by settlement, arbitration award, court judgment following trial or appeal, or otherwise. “Gross recovery” shall include, without limitation, the following: (1) the then-present value of any monetary payments to be made to Client; and (2) the fair market value of any non-monetary property and services to be transferred and/or rendered for the benefit of Client; and (3) any attorney’s fees recovered by Client as part of any cause of action that provides a basis for such an award. “Gross recovery” may come from any source, including, but not limited to, the adverse parties to the Action and/or their insurance carriers and/or any third party, whether or not a party to the Action.

If Client and Attorneys disagree as to the fair market value of any non-monetary property or services as described above, Attorneys and Client agree that a binding appraisal will be conducted to determine this value. However, regardless of the results of the binding appraisal, the fee associated with non-monetary property or services transferred or rendered for the benefit of the Client shall not, in any case, exceed the amount of the monetary 195

payments made to the Client as part of the governing settlement or judgment. It is possible that payment to the Client by the adverse parties to the Action or their insurance carrier(s) or any third-party may be deferred, as in the case of an annuity, a structured settlement, or periodic payments. In such event, gross recovery will consist of the initial lump sum payment plus the present value (as of the time of the settlement) of the total of all payments to be received thereafter. The contingent fee is calculated, as described above, by multiplying the gross recovery by the fee percentage. The Attorneys’ fees will be paid out of the initial lump-sum payment if there are sufficient funds to satisfy the Attorneys’ fee.

If there are insufficient funds to pay the Attorneys’ fees in full from the initial lump sum payment, the balance owed to Attorneys will be paid from subsequent payments to Client before there is any distribution to Client.

C. Reasonable Fee if Contingent Fee is Unenforceable or if Attorney is Discharged Before Any Recovery.

In the event that the contingent fee portion of this agreement is determined to be unenforceable for any reason or the Attorneys are prevented from representing Client on a contingent fee basis, Client agrees to pay a reasonable fee for the services rendered. If the parties are unable to agree on a reasonable fee for the services rendered, Attorneys and Client agree that the fee will be determined by arbitration proceedings before a neutral affiliated with the Judicial Arbitration and Mediation Services (JAMS); in any event, Attorneys and Client agree that the fee determined by arbitration shall not exceed 25% of the gross recovery as defined in this Agreement. If there is no recovery by Client, no fee will be due to Attorneys.

D. Order or Agreement for Payment of Attorneys’ Fees or Costs by Another Party.

If a court orders, or the parties to the dispute agree, that another party shall pay some or all of Client’s attorneys’ fees, costs, or both, Attorneys shall be entitled to the greater of (i) the amount of any attorney’s fees awarded by the court or included in the settlement or (ii) the percentage or other formula applied to the recovery amount not including such attorney’s fees.

8. COSTS AND EXPENSES.

A. General
In addition to paying legal fees, Client authorizes Attorneys to incur all reasonable costs and expenses and to hire any investigators, consultants, or expert witnesses. Attorneys will advance all costs and expenses. Attorneys will deduct those costs and expenses out of Client’s recovery after attorney’s fees have been deducted. If there is no recovery, Client will not be required to reimburse Attorneys for costs and fees. In the event a recovery is less than incurred costs and expenses, Client will not be required to reimburse Attorneys for costs/expenses, above and beyond the recovery, and fees.

B. Document Management Costs
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Attorneys have explored two means of managing litigation documents:
(1) Outsource to outside vendor. Attorneys contract with outside vendors to collect, copy, and store documents. Attorneys advance these costs, and Client reimburses Attorneys out of any recovery.
(2) Internal processing. Attorneys can create an internal document management system by obtaining computer software, hardware, and related resources necessary to collect, copy, store, organize, and produce documents and data. This option obviates the need to outsource this work to an outside vendor.

Attorneys represent that the second option above, internal processing, is the better choice for promoting efficiency, saving Client costs, and limiting legal expenses.

Client agrees that Attorneys may purchase the resources necessary to provide an internal document management system for Client. Attorneys may, however, use outside vendors where costs or circumstances warrant.

9. SHARED EXPENSES. Client understands that Attorneys may incur certain expenses that jointly benefit multiple clients, including, for example, expenses for travel, experts, and copying.

Client agrees that Attorneys may, in their discretion, divide such expenses equally or pro rata among such clients, and deduct Client’s portion of those expenses from Client’s share of any recovery.

Prior client approval is not required for shared expenses. Nevertheless, Client shall only be responsible for prudent, fair and reasonable expenses.

10. DIVISION OF ATTORNEYS’ FEES. At the conclusion of the case, if a recovery is made on behalf of Client, Client understands and agrees that the total Attorneys’ fee will be divided as follows:

Baron & Budd, P.C. will receive fifty percent (50%) and Cossich, Sumich, Parsiola & Taylor LLC will receive fifty percent (50%).

11. MULTIPLE REPRESENTATIONS. Client understands that Attorneys do or may represent many other individuals with actual or potential PFAS related litigation claims. Attorneys’ representation of multiple claimants at the same time may create certain actual or potential conflicts of interest in that the interests and objectives of each client individually on certain issues are, or may become, inconsistent with the interests and objectives of the other. Attorneys are governed by specific rules and regulations relating to professional responsibility in representation of clients, and especially where conflicts of interest may arise from representation of multiple clients against the same or similar defendants, Attorneys must advise clients of any actual or potential conflicts of interest and obtain their informed written consent to our representation when actual, present, or potential conflicts of interest exist. Client has conferred with its own separate corporate or municipal counsel, and has determined that it is in its own best interests to waive any and all potential or actual conflicts of which Client is currently aware as the result of Attorneys’ current 197

and continuing representation of other entities in similar litigation. By signing this agreement, Client states that (1) it has been advised of the potential conflicts of interest which may be or are associated with our representation of Client and other multiple claimants; (2) it nevertheless wants Attorneys to represent Client; and (3) Client consents to Attorneys’ representation of others in connection with PFAS litigation (AFFF or otherwise). Client remains completely free to seek other legal advice at any time even after signing this agreement.

12. POWER OF ATTORNEY. Client gives Attorneys a power of attorney to execute all reasonable and necessary documents connected with the handling of the litigation associated with this cause of action. Prior to signing any documents relative to settlement agreements, compromises and releases, Attorneys will confer with and advise Client of the contents and ramifications of such documents. Under no circumstances will Client’s claims be settled without obtaining Client’s advance consent.

13. SETTLEMENT. Attorneys will not settle Client’s claim without the advance approval of Client, who will have the absolute right to accept or reject any settlement. Attorneys will notify Client promptly of the terms of any settlement offer received by Attorneys.

14. AGGREGATE SETTLEMENTS. Often times in cases where Attorneys represent multiple clients in similar litigation, the opposing parties or defendants attempt to settle or otherwise resolve all of Attorneys’ cases in a group or groups, by making a single settlement offer to settle a number of cases simultaneously. There exists a potential conflict of interest whenever a lawyer represents multiple clients in a settlement of this type because it necessitates choices concerning the allocation of limited settlement amounts among the multiple clients. However, if all clients consent, a group settlement can be accomplished and a single offer can be fairly distributed among the clients by assigning settlement amounts based upon the strengths and weaknesses of each case, the relative nature, severity and extent of injuries, and individual case evaluations. In the event of a group or aggregate settlement proposal, Attorneys may implement a settlement program, overseen by a referee or special master, who may be appointed by a court, designed to ensure consistency and fairness for all claimants, and which will assign various settlement values and amounts to each client’s case depending upon the facts and circumstances of each individual case. Client authorizes Attorneys to enter into and engage in group settlement discussions and agreements that may include Client’s individual claims. Although Client authorizes Attorneys to engage in such group settlement discussions and agreements, Client retains the right to approve any settlement of Client’s claims, and Attorneys are required to obtain Client’s approval before settling Client’s claims.

15. ATTORNEYS’ LIEN. Attorneys will have a lien for attorneys’ fees and costs advanced on all claims and causes of action that are the subject of the representation of Client under this Agreement and on all proceeds of any recovery obtained (whether by settlement, arbitration award, or court judgment). If no recovery is obtained for Client, or if a lien is obtained that exceeds the recovery by the Client, any lien in excess of the recovery for Client shall be released by Attorneys.

16. DISCHARGE OF ATTORNEYS. Client may discharge Attorneys at any time by written notice effective when received by Attorneys. Unless specifically agreed by Attorneys and Client, Attorneys will provide no further services and advance no further costs on Client’s behalf after 198

receipt of the notice. If Attorneys appear as Client’s attorneys of record in any proceeding, Client will execute and return a substitution-of-attorney form immediately on its receipt from Attorneys.

In the event that Attorneys are discharged, for whatever reason, Attorneys and Client agree that Attorneys will have a lien for attorneys’ fees and costs advanced on all claims and causes of action that are the subject of the representation of Client under this Agreement and on all proceeds of any recovery obtained (whether by settlement or court judgment). If no recovery is obtained for Client or if a lien is obtained that exceeds the recovery by the Client then any lien in excess of the recovery for Client shall be released by Attorneys.

17. WITHDRAWAL OF ATTORNEYS. Client and Attorneys agree that if, after investigation of the facts and research of the law, Attorneys believe that Client’s claims are of limited merit, Attorneys may terminate this agreement with Client prior to and without filing suit. Termination releases Attorneys from any further action on Client’s claim and discharges Attorneys from this Agreement. Termination will be effected via delivery service with signature receipt to the last address provided by Client to Attorneys. After filing suit, Attorneys may withdraw with Client’s consent as permitted under the governing Rules of Professional Conduct. The circumstances under which the Rules permit such withdrawal include, but are not limited to, the following: (a) the representation will result in violation of the rules of professional conduct or other law; (b) if withdrawal can be accomplished without material adverse effect on the interests of Client; (c) if Client persists in a course of action involving Attorneys’ services that Attorneys reasonably believe is criminal or fraudulent or if Client has used Attorneys’ services to perpetrate a crime or fraud; (d) if Client insists upon pursuing an objective that Attorneys consider repugnant or imprudent; (e) if Client fails substantially to fulfil an obligation to Attorneys regarding Attorneys’ services and has given reasonable warning that Attorneys will withdraw unless the obligation is fulfilled; (f) the representation will result in an unreasonable financial burden on Attorneys; or (g) if other good cause for withdrawal exists. Upon termination of representation, Attorneys shall take steps to the extent reasonably practicable to protect Client’s interests, will give reasonable notice to Client, will allow time for employment of other counsel, will surrender papers and property to which Client is entitled, and will refund any advance payment of fee that has not been earned. Notwithstanding Attorneys’ withdrawal, Attorneys and Client agree that in all such cases described herein above, Attorneys will have a lien for attorneys’ fees and costs advanced on all claims and causes of action that are the subject of the representation of Client under this Agreement and on all proceeds of any recovery obtained (whether by settlement or court judgment). If no recovery is obtained for Client or if a lien is obtained that exceeds the recovery by the Client any lien in excess of the recovery for Client shall be released by Attorneys.

18. RELEASE OF CLIENT’S PAPERS AND PROPERTY. At the termination of services under this Agreement, Attorneys will release promptly to Client on request all of Client’s papers and property. “Client’s paper and property” includes correspondence, deposition transcripts, exhibits, experts’ reports, legal documents, physical evidence, and other items reasonably necessary to Client’s representation, whether Client has paid for them or not.

19. INDEPENDENT CONTRACTOR. The relationship to Client of Attorneys, and any associate counsel or paralegal provided through Attorneys, in the performance of services under this Agreement is that of Client to independent contractor and not that of Client to employee. No 199

other wording in this Agreement shall stand in derogation of this subparagraph. The fees and costs paid to Attorneys for legal services rendered pursuant to this Agreement shall be deemed revenues of their law office practices and not as remuneration for individual employment apart from the business of that law office.

20. NOTICES. Client agrees to receive communications and documents from Attorneys via email. Attorneys agree to receive communications and documents from Client via email. In the event that Client needs to send hardcopy documents or other physical materials, Client agrees to send those to Attorneys at the following addresses:

Baron & Budd, P.C.
3102 Oak Lawn Ave., Suite 1100
Dallas, Texas 75219
Cossich, Sumich, Parsiola & Taylor LLC
8397 Highway 23, Suite 100
Belle Chasse, Louisiana 70037

21. DISCLAIMER OF GUARANTEE. Although Attorneys may offer an opinion about possible results regarding the subject matter of this Agreement, Attorneys cannot guarantee any particular result. Client acknowledges that Attorneys have made no promises about the outcome and that any opinion offered by Attorneys in the future will not constitute a promise, guarantee, or warranty.

22. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties. No other agreement, statement, or promise made on or before the effective date of this Agreement will be binding on the parties.

23. SEVERABILITY IN EVENT OF PARTIAL INVALIDITY. If any provision of this Agreement is held in whole or in part to be unenforceable for any reason, the remainder of that provision and of the entire Agreement will be severable and remain in effect.

24. MODIFICATION BY SUBSEQUENT AGREEMENT. The parties may agree to modify this Agreement by executing a new written agreement.

25. DISPUTES ARISING UNDER AGREEMENT. Client and Attorneys agree that any controversy, claim, or dispute (including issues relating to the fee) arising out of or relating to this Agreement, its performance, and/or its breach will be resolved by arbitration proceedings before a neutral associated with the Judicial Arbitration and Mediation Services (JAMS). Disagreement as to the fair market value of any non-monetary property or services, however, will be resolved in accordance with paragraph 7.C.

26. ATTORNEY’S FEES AND COSTS IN ACTION ON AGREEMENT. The prevailing party in any action or proceeding to enforce any provision of this Agreement will be awarded 200

reasonable attorney’s fees and costs incurred in that action or proceeding or in efforts to negotiate the matter.

27. EFFECTIVE DATE OF AGREEMENT. This Agreement is effective when the Client signs the Agreement. This Agreement applies to any services provided by Attorneys before its effective date.

28. MULTIPLE COUNTERPARTS. This Agreement will be effective whether or not executed in multiple counterparts.

This agreement and its performance are subject to the Louisiana Rules of Professional Conduct, the Texas Disciplinary Rules of Professional Conduct, and the California Rules of Professional Conduct.

Agreed to by: Date: _____________________

CITY OF ADELANTO
Printed name and title (“Client”)
Signature

ATTORNEYS
Scott Summy, Baron & Budd, P.C.

Phil Cossich, Cossich, Sumich, Parsiola & Taylor LLC
201

CITY COUNCIL AGENDA REPORT
DATE: September 28, 2022
TO: Honorable Mayor and City Council Members
FROM: Jessie Flores, City Manager
BY: Brian D. Wolfe, Contract Engineer
SUBJECT: Recommend reject bid received for the Jonathan Street and Chamberlaine Way Street Improvement Project.

STAFF RECOMMENDATION:

Staff recommends City Council the bid sole bid received for the Jonathan Street and Chamberlaine Way Street Improvement Project.

BACKGROUND:

The southwest corner of Jonathan Street and Chamberlaine Way is the future site of a public park.

Street widening at this corner was designed to facilitate access to and from the park. Plans and specifications were produced by Adelanto’s Engineering Department.

Staff advertised the project for construction on August 8, 2022. The City Clerk’s office received and opened one bid on September 13, 2022 which is summarized below.

No. Company Bid Total
1 LCR Earthwork and Engineering Co. $1,133,173.25
Bid total is more than twice the cost estimate of $494,682 not including 10% contingency. Staff recommends rejecting this bid which will allow the project to be advertised again or combined with another project.

FISCAL IMPACT:

There is no fiscal impact by rejecting the bid.

ATTACHMENTS:

A. Location Map
B. Bid Register
C. Bid Analysis
202
Future Public Park
Future Curb Line
A
203
B
204
Item Description Qty Unit Unit Price Amount Unit Price Amount 1 Mobilization/Demobilization 1 LS $ 25,000.00 $ 25,000.00 $ 65,000.00 $ 65,000.00 2 Temporary Traffic Control 1 LS $ 10,000.00 $ 10,000.00 $ 26,250.00 $ 26,250.00 3 Clearing, Grubbing and Grading 1 LS $ 30,000.00 $ 30,000.00 $ 400,000.00 $ 400,000.00 4 SWPPP/Erosion Control 1 LS $ 15,000.00 $ 15,000.00 $ 26,000.00 $ 26,000.00 5 Sawcut and Remove Existing AC Pavement
and Subgrade 53,879 SF $ 107,758.00 2.00 $ 1.75 $ 94,288.25 $ 6 Adjust Existing valve to Grade 7 EA $ 500.00 $ 3,500.00 $ 750.00 $ 5,250.00 7 Adjust Existing MH to Grade 3 EA $ 1,500.00 $ 4,500.00 $ 2,000.00 $ 6,000.00 8 Remove and Relocate Fire Hydrant 1 EA $ 5,000.00 $ 5,000.00 $ 15,000.00 $ 15,000.00 9 Remove and Relocate Bus Shelter 1 EA $ 5,000.00 $ 5,000.00 $ 21,000.00 $ 21,000.00 10 Remove Existing Tree Including Roots 6 EA $ 1,500.00 $ 9,000.00 $ 3,000.00 $ 18,000.00 11 Construct 1.5" AC Pavement over 2.5" over
6" Agg Base 979 TON $ 127,270.00 130.00 $ 190.00 $ 186,010.00 $ 12 Construct 5" Misc. Base 843 TON $ 100.00 $ 84,300.00 $ 85.00 $ 71,655.00 13 Construct 8" AC Dike 143 LF $ 10.00 $ 1,430.00 $ 35.00 $ 5,005.00 14 Construct 8" PCC Curb & Gutter 555 LF $ 40.00 $ 22,200.00 $ 65.00 $ 36,075.00 15 Construct PCC Curn return 502 SF $ 10.00 $ 5,020.00 $ 50.00 $ 25,100.00 16 Construct 8" PCC Spandrel and Cross Gutter 968 SF $ 7,744.00 8.00 $ 40.00 $ 38,720.00 $ 17 Construct 4" PCC Sidewalk 3,370 SF $ 8.00 $ 26,960.00 $ 16.00 $ 53,920.00 18 Install Traffic Signing and Striping 1 LS $ 5,000.00 $ 5,000.00 $ 39,900.00 $ 39,900.00 Total: $ 494,682 $ 1,133,173.25
Jonathan Street and Chamberlaine Way Widening - Bid Analysis Project Number CIP 2022-04 Bid Opening Date: September 13, 2022 at 10:00 am Engineer's Estimate LCR Earthwork & Engineering
C
205

CITY COUNCIL AGENDA REPORT
DATE: September 28, 2022
TO: Honorable Mayor and City Council Members
FROM: Jessie Flores, City Manager, & City Attorney
SUBJECT: CONSIDERATION, APPROVAL AND ADOPTION OF RESOLUTION

AWARDING A NON-EXCLUSIVE REVOCABLE LICENSE AGREEMENT TO SOUTH CAPITOL COTTAGE, INC., A SECTION 501(C)(3) TAX-EXEMPT NONPROFIT ORGANIZATION, TO USE THE GLASPER CENTER FOR ONE YEAR STAFF RECOMMENDATION: Staff recommends the City Council adopt the resolution awarding a non-exclusive revocable license agreement to South Capitol Cottage, Inc., a 501(c)(3) tax-exempt nonprofit organization, to use the Glasper Center for a period of one (1) year.

BACKGROUND: In July 2022, the City of Adelanto (“City”) issued a Request for Proposals (RFP) for a one-year Non-Exclusive Revocable License Agreement with a local non-profit organization to use the Adelanto Glasper Center (“Glasper Center”), a City-owned property located at 17537 Montezuma Street, Adelanto, California 92301. The City’s primary objective of the RFP is to provide the non-profit a location that will enable it to operate within the City and provide services and community events that will benefit the quality of life for City residents.

In August 2022, South Capitol Cottage, Inc., a local 501(c)(3) tax-exempt non-profit organization, submitted a proposal in response to the RFP. It was the only organization to submit a proposal.

According to the submitted proposal, South Capitol Cottage, Inc. intends to use the Glasper Center as the location for its Boys and Girls Club, where South Capitol Cottage, Inc. will not only provide various afterschool programs for the City’s youth and young adults but will also provide equipment, free clinics and other low-cost programs to City residents. South Capitol Cottage, Inc. has agreed to the terms of City’s Non-Exclusive Revocable License Agreement and the Release and Waiver of Liability and Indemnification Form.

A representative from South Capitol Cottage, Inc., has advised staff that it will implement minor improvements and repairs to the Glasper Center, such as new flooring and drywall. The agreement calls for major, structural repairs and maintenance to be the City’s responsibility, while South Capitol Cottage, Inc. will be responsible for minor repairs and maintenance.

FISCAL IMPACT: South Capitol Cottage will pay a proportional share of the utilities for the Glasper Center, as well as $1,000.00 annually, as a license fee.

ATTACHMENTS:

Resolution No. 22-65
Exhibit A – Non-Exclusive Revocable License Agreement
Exhibit B – Release & Waiver of Liability and Indemnification Form Exhibit C – City-issued Request for Proposals for Glasper Center 206
Exhibit D – South Capitol Cottage, Inc. Proposal
207
RESOLUTION NO. 22-66

A RESOLUTION OF THE CITY COUNCIL OF THE CITY

OF ADELANTO, COUNTY OF SAN BERNARDINO,

CALIFORNIA, AWARDING NON-EXCLUSIVE

REVOCABLE LICENSE AGREEMENT TO SOUTH
CAPITOL COTTAGE, INC., A SECTION 501(C)(3) TAXEXEMPT NON-PROFIT ORGANIZTION, TO USE THE CITY’S GLASPER CENTER
WHEREAS, in July 2022, the City of Adelanto (“City”) issued a Request for Proposals (RFP) for a one-year Non-Exclusive Revocable License Agreement with a local non-profit organization to use the Adelanto Glasper Center (“Glasper Center”), a City-owned property located at 17537 Montezuma Street, Adelanto, California 92301; and, WHEREAS, the City’s primary objective of the RFP is to provide the non-profit a location that will enable it to operate within the City and provide services and community events that will benefit the quality of life of the residents within the City; and WHEREAS, in August 2022, South Capitol Cottage, Inc., a local 501(c)(3) tax-exempt non-profit organization, submitted a proposal in response to the RFP; and WHEREAS, according to the submitted proposal, South Capitol Cottage, Inc. intends to use the Glasper Center as the location for a Boys and Girls Club, where South Capitol Cottage, Inc. will not only provide various afterschool programs for the City’s youth and young adults but will also provide equipment, free clinics and other low-cost programs to the City’s residents; and WHEREAS, South Capitol Cottage, Inc. has agreed to all the terms of City’s NonExclusive Revocable License Agreement, attached hereto as Exhibit A, and the Release and Waiver of Liability and Indemnification Form, attached hereto as Exhibit B; and WHEREAS, the City Council desires to approve and award the Non-Exclusive Revocable License Agreement for the Glasper Center to South Capitol Cottage, Inc.; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Adelanto hereby approves and award for one year a Non-Exclusive Revocable License Agreement for the Glasper Center to South Capitol Cottage, Inc., a non-profit tax-exempt organization, which seeks to help improve the quality of life for the residents of Adelanto, especially its youth and young adult population.
208
Resolution No. 22-66

PASSED, APPROVED AND ADOPTED this 28th day of September, 2022. ______________________________
Gabriel Reyes, Mayor
_______________________________
Brenda Lopez, City Clerk
209
Resolution No. 22-66

I, Brenda Lopez, City Clerk of the City of Adelanto, California, do hereby certify that the foregoing Resolution No. 22-66 was duly and regularly adopted at a regular meeting of the City Council of the City of Adelanto on this 28th day of September 2022 be the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

IN WITNESS THEREOF, I hereunto set my hand and affix the official seal of the City of Adelanto on the 28th day of September 2022.
______________________________
Brenda Lopez, City Clerk
210

EXHIBIT A
Non-Exclusive Revocable License Agreement
211
2 NON-EXCLUSIVE REVOCABLE LICENSE AGREEMENT BETWEEN

THE CITY OF ADELANTO AND
SOUTH CAPITOL COTTAGE, INC.

THIS NON-EXCLUSIVE REVOCABLE LICENSE AGREEMENT (“Agreement”) is made and executed this _____ day of_______________ 2022, by and between the City of Adelanto, a California municipal corporation, as Licensor (“City”) and South Capitol Cottage, Inc., a 501(c)(3) non-profit organization (“Licensee”). City and Licensee are collectively referred to herein as the “Parties.”
RECITALS.

WHEREAS, City owns certain real property described as the Glasper Center, located at 17537 Montezuma, Adelanto, California 92301 (“Center”); and WHEREAS, City wishes that the Center be used for the benefit and well-being of the community and residents of the City; and
WHEREAS, Licensee is a non-profit public benefit corporation providing valuable civic services to members of the community; and
WHEREAS, Licensee desires that City grant a non-exclusive, revocable license to the Center as set forth herein; and
WHEREAS, subject to the terms and conditions set forth herein, City wishes to grant to Licensee a non-exclusive, revocable license to use the Center for the purpose of providing a community service to the City’s residents;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. LICENSE. City hereby grants Licensee a non-exclusive, revocable license to use the Center for the term and upon the terms and conditions set forth in this Agreement. Licensee does not acquire any right to the Center independent of City’s rights. City’s action herein is not, and shall not be construed to be, a conveyance of a property interest or lease; it is a license to use City’s property as described in this Agreement. City shall have the right to enter upon the Center for the duration of this Agreement, without notice to, or permission of, Licensee. The City shall also maintain control of the Center including, without limitation, the right to grant additional licenses for the use of the Facilities in consultation with the Licensee. 212
3 2. USE OF THE CENTER.
(a) Licensee acquires the privilege of using the Center from Monday to Sunday, 6:00 a.m. to 9:00 p.m. (“Usage Times”).
(b) Licensee agrees to conduct all of its activities during Usage Times with full regard for public safety, and to observe and abide by all applicable laws, regulations, and requests by City or any other governmental agency responsible for public safety. All activities must be listed in a Calendar of Events, which is attached and incorporated hereto as Exhibit “1”. (c) In the event Licensee holds an event or activity for which public participation is permitted, Licensee shall require all participants of such events or activities who are eighteen (18) years of age or older execute a Release & Waiver of Liability form, attached hereto as Exhibit 2, prior to the participant’s participation in the Licensee’s event or activity. For all participants who are seventeen (17) years of age or younger, Licensee shall require the parent(s) and/or legal guardian(s) of the minor participant execute a Release & Waiver of Liability form, attached hereto as Exhibit 3, on behalf of the minor participant, prior to the participant’s participation in the Licensee’s event or activity.
(d) No portion of the Center’s sidewalks, ramps, entries, doors, corridors, passageways, hallways, stairways, aisles or driveways shall be obstructed or impeded by Licensee or its agents, employees, contractors, patrons, or invitees, or used by any of them for any purpose other than ingress or egress from the Center’s premises. Access to public utilities, heating and air conditioning vents, lighting fixtures, fire hoses, fire extinguishers, fire prevention water sprinkler systems, and restrooms shall not be covered or obstructed at any time by Licensee or its agents, employees, contractors, patrons, or invitees.
(e) Any conflict with Licensee regarding the use of the Center shall be resolved by the City of Adelanto City Manager (“City Manager”) in his or her sole discretion.

3. COMPENSATION. In exchange for the use of the Center, Licensee shall pay City an annual sum of one thousand dollars ($1,000.00) and shall be responsible for the payment of their proportional share of the utilities, as determined by City staff (“License Fee”). City reserves the right to amend the License Fee, as determined appropriately by the City Manager.

4. TERM. This Agreement shall be for a term of one (1) year. This Agreement shall be reviewed by the City Council at the conclusion of the initial term for possible renewal for an additional one (1) year term. If the City Council does not renew this Agreement within thirty (30) days of the termination date of any term, this Agreement shall be deemed terminated. 213
4 5. TERMINATION.
(a) City and Licensee shall each have the right to terminate this Agreement upon fortyfive (45) days written notice to the other party. Such notice of termination may be given at any time, with or without cause.
(b) Condition on Termination.
(i) Upon the expiration or earlier termination of the Term of the License, Licensee shall vacate the Center, in good order and condition, in the same condition as received subject to ordinary wear and tear, and any alterations to the Center made by Licensee pursuant to Section 12, as required to comply with applicable laws or otherwise not required to be removed by City, “warehouse clean” and free of debris.
(ii) Licensee shall remove all of its personal property from the Center. (iii) Licensee acknowledges that occupation and use of the Center must cease upon the expiration or earlier termination of this License. (iv) The provisions of this Section shall survive the expiration or earlier termination of the Term of this License. If Licensee fails to fulfill its obligations under this Section, City shall have the right, in its sole discretion and without prejudice to any other remedy it may have under this Agreement or at law, or so much thereof as necessary, to satisfy Licensee’s obligations under this Section at Licensee’s sole cost and expense.

6. CENTER MAINTENANCE.
(a) Licensee shall at all times maintain the Center in good order, condition, and repair during the term of the Agreement. Licensee covenants and agrees that it shall be responsible for all repairs, alterations, replacements, or maintenance of all ordinary non-structural repairs necessary to keep the Center in good order and condition, including but not limited to, the interior and exterior of the Center, the above-ground plumbing and electrical systems, parking areas and landscaping of the Center.
(b) If Licensee fails to maintain the Center in a condition satisfactory to City, as determined by City in its reasonable discretion, and if Licensee fails to correct such conditions pursuant to Section 9 of this Agreement, then City may, at its option, terminate this License and/or correct the condition in the Center, and Licensee shall bear the reasonable costs thereof. (c) City shall have the right under this Section to require Licensee to make repairs or perform maintenance of Center in a shorter period of time if such maintenance or repair is 214
5 necessary to protect the public safety or prevent property damage, and Licensee shall be responsible to reimburse City for the cost of same.
(d) City shall repair and maintain the structural and exterior portions of the Center, including, without limitation, roofing and covering materials, foundations, exterior walls, major plumbing (i.e., underground plumbing), fire sprinkler systems (if any), and electrical systems installed or furnished by the City, unless such repairs and maintenance is required in whole or in part because of any negligent or wrongful act or omissions of Licensee, its agents, servants, employees or invitees, in which case Licensee shall pay to City the cost of such repairs and maintenance. In no event shall City be liable to Licensee for failure to make any required replacement or repair unless written notice of the need for such replacement or repair has been delivered pursuant to the terms of this Agreement.
(e) All repairs made by Licensee or City shall utilize materials and equipment which are at least equal in quality and usefulness to those originally used in constructing the Center.

7. CENTER IMPROVEMENTS. Licensee shall have the right, but not the obligation, from time to time and at its own expense, to install improvements and upgrades or make other changes to the Center so as to increase its efficiency or otherwise improve its operational characteristics. However, no such improvements, upgrades or changes shall be made without the prior written approval of City.

8. INSPECTIONS.
(a) Quarterly Inspections by City. City shall, at City’s sole cost and expense, inspect Center as often as necessary, but not less than once on a quarterly basis, and shall provide Licensee with a quarterly inspection report within three (3) days of said inspection, which describes the condition of Center. City reserves the right to conduct inspections on a more frequent basis in its sole and absolute discretion. Licensee shall promptly perform any and all necessary and appropriate repairs or maintenance identified as a result of said inspection. In the event Licensee fails to perform any and all necessary and appropriate repairs or maintenance identified as a result of said inspection pursuant to Section 9, then City may, at its option, terminate this License and/or correct the condition in the Center, and Licensee shall bear the reasonable costs thereof. (b) Annual Inspection by San Bernardino County Fire and Health Departments. The Center shall, at City’s sole cost and expense, be inspected by the San Bernardino County Fire Department and San Bernardino County Health Department as often as necessary, but in any event at least once each year. City shall provide Licensee with a true and correct copy of the San Bernardino County Fire Department and San Bernardino County Health Department’s annual inspection reports on or before each anniversary of the Effective Date of this License. City reserves the right to require inspections on a more frequent basis in its sole and absolute discretion. Licensee 215
6 shall promptly perform any and all necessary and appropriate repairs or maintenance identified as a result of said inspection. In the event Licensee fails to perform any and all necessary and appropriate repairs or maintenance identified as a result of said inspection pursuant to Section 9, then City may, at its option, terminate this License and/or correct the condition in the Center, and Licensee shall bear the reasonable costs thereof

9. REMEDIES. In the event that Licensee fails to comply with any obligation hereunder, City shall give a three (3) day notice to Licensee of such noncompliance and may give thirty (30) day written notice of termination. If Licensee fails to remedy same within three days – or, if such noncompliance cannot be remedied within three days, if Licensee fails to commence a cure within this period and diligently thereafter pursue to completion – City shall have the right to terminate this Agreement on the date specified in the initial thirty (30) day notice. If Licensee fails to maintain the Center in good condition, then City has the right, but not the obligation, to perform the necessary maintenance, and Licensee shall reimburse City for the reasonable costs incurred by the City. In addition to the other available rights and remedies, a Party may institute legal action to cure, correct or remedy any default of this Agreement

10. NO RESPONSIBILITY.
(a) It is understood and agreed that City has no obligation to safeguard or insure any property installed or maintained by Licensee at the Center. All such obligations are solely those of the Licensee. Licensee will not look to City for any loss of, damage to, or destruction of such property, except where it is caused by the sole active negligence or willful misconduct of City or its agents or employees.
(b) Licensee shall be responsible for any damages to persons or property which may arise out of Licensee’s, or any of Licensee’s agents, employees, independent contractors, or other person acting by, through, or on Licensee’s behalf, use of the Center, or any other act or omission.

Licensee agrees to reimburse City for any and all costs incurred by City to repair or otherwise remedy any such damages.

11. NO USE OF CITY FUNDS; NO FUNDRAISING BY CITY. Licensee acknowledges and agrees that City shall have no obligation to provide or support Licensee’s use of the Center or Licensee’s programming with any City funds or perform any fundraising service on behalf of Licensee.

12. ALTERATIONS.
(a) Licensee shall not make or cause to be made any alterations, installations, improvements, additions or other physical changes in or about the Center without obtaining the 216
7 prior written approval of City with respect thereto, which approval may be withheld for any reason in City’s sole discretion.
(b) Licensee shall make no change or alteration to the exterior of the Center without City’s prior written approval, which approval may be withheld for any reason in City’s sole discretion.
(c) Any alterations, improvements, or additions shall at once become the property of City and shall be surrendered to the City upon termination of this Agreement; provided, however, that City may require Licensee to remove any such alterations, improvements, or additions, to restore the Center to the condition existing at the time Licensee took possession of Center. All costs of removal and/or alterations shall be borne by Licensee. This clause shall not apply to moveable equipment, furniture, or other personal property owned by Licensee. (d) Any alterations, improvements, or additions shall be made or performed at Licensee’s sole cost and expense by a contractor or contractors acceptable to City and in good, workmanlike and lien free manner. It is specifically understood and agreed that City has no obligation and has made no promises to finance the requested alterations, improvements or additions, and is under no obligation to assist Licensee in obtaining any or all necessary permits, licenses, etc. for such alterations, improvements, or additions. (e) Should Licensee make any alterations, improvements, or additions without the prior written approval of City, City may, at any time during the Term of this Agreement, require that Licensee remove any or all of the same.

13. ASSUMPTION OF RISK. Licensee acknowledges and agrees that the City makes no representations or warranties, express or implied, as to the condition or suitability for Licensee’s use of any portion of the Center. Licensee has conducted all inspections of the property to its satisfaction and agrees to enter and use the Center in its “as-is, with all faults” condition, with full acceptance of all conditions thereon. City shall have no obligation to maintain or otherwise prepare the Center for use by Licensee. Licensee assumes the risk that certain conditions may exist on the Center and hereby releases the City from all claims, actions, demands, rights, damages, costs or expenses that might arise out of or in connection with any condition of the Center, including any dangerous condition of property. City and its agents and employees shall not be responsible or liable for loss or damages by reason of fire, theft, collision or any other cause to Licensee’s personnel, equipment, or other personal property. By use of the Center, Licensee assumes all risk of loss or damage to property, and assumes all risk of personal injury

14. ASSIGNMENT. Licensee is not permitted to assign this Agreement or any interest herein.
217
8 15. INDEMNIFICATION.

To the fullest extent permitted by law, Licensee shall immediately indemnify, defend, and hold harmless, with legal counsel of the City’s choosing, the City, its directors, officials, officers, employees, volunteers, and agents from any and all claims, demands, causes of action, costs, expenses, liability, 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 this Agreement or Licensee’s use of any part of the Center, including without limitation the payment of all reasonable attorneys’ fees and costs, including expert witness fees.

Licensee shall reimburse City, its directors, officials, officers, employees, volunteers, and agents for all legal expenses and costs incurred by each of them in connection with any Claims subject to indemnification by Licensee, or in enforcing the indemnity herein provided. Licensee’s indemnification obligations shall not be restricted by the amount of any insurance proceeds. The sole limitation on Licensee’s indemnity obligation herein is for Claims found to be caused by the sole negligence or willful misconduct of the City. Licensee’s indemnification obligation shall survive any revocation or termination of this Agreement It expressly understood and agreed that the foregoing provisions of this Section 15 shall survive termination of this Agreement.

16. INSURANCE. Prior to the commencement of this Agreement, Licensee shall procure and maintain policies that meet the requirements and specifications set forth under this Article. Licensee shall procure and maintain the following insurance coverage at its own expense.

A. COMMERCIAL GENERAL LIABILITY INSURANCE. Licensee shall procure and maintain Commercial General Liability Insurance (“CGL Coverage”) as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) or its equivalent. Such CGL Coverage will have minimum limits of no less than Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) in the general aggregate for bodily injury, personal injury, property damage, operations, products and completed operations, and contractual liability.

B. WORKERS COMPENSATION INSURANCE / EMPLOYERS LIABILITY INSURANCE. A policy of workers’ compensation insurance in such amount as will fully comply with the laws of the State of California and which will indemnify, insure and provide legal defense for both Licensee and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Licensee during the Term of this Agreement.

C. ADDIITIONAL INSURED REQUIREMENTS. The CGL Coverage will contain an endorsement naming the City and City’s elected and appointed officials, officers, 218
9 employees, agents and volunteers as additional insureds.

D. REQUIRED CARRIER RATING. All varieties of insurance required under this Agreement will be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance will be procured from insurers who, according to the latest edition of the Best’s Insurance Guide, have an A.M. Best’s rating of no less than A:VII. City may also accept policies procured by insurance carriers with a Standard & Poor’s rating of no less than BBB according to the latest published edition the Standard & Poor’s rating guide. As to Workers’ Compensation Insurance / Employer’s Liability Insurance, the City Manager is authorized to authorize lower ratings than those set forth in this Section.

E. PRIMACY OF CONCESSIONAIRE’S INSURANCE. All policies of insurance provided by Licensee will be primary to any coverage available to City or City’s elected or appointed officials, officers, employees, agents or volunteers. Any insurance or self-insurance maintained by City or City’s elected or appointed officials, officers, employees, agents or volunteers will be in excess of Licensee’s insurance and will not contribute with it.

F. WAIVER OF SUBROGATION. All insurance coverage provided pursuant to this Agreement will not prohibit Licensee or Licensee’s officers, employees, agents, subcontractors or subconsultants from waiving the right of subrogation prior to a loss. Licensee hereby waives all rights of subrogation against City, its officials, officers, employees, agents and volunteers.

G. VERIFICATION OF COVERAGE. Licensee acknowledges, understands and agrees, that City’s ability to verify the procurement and maintenance of the insurance required under this Article is critical to safeguarding City’s financial well-being and, indirectly, the collective well-being of the residents of the City.

Accordingly, Licensee warrants, represents and agrees that it will furnish City with original certificates of insurance and endorsements evidencing the coverage required under this Article on forms satisfactory to City in its sole and absolute discretion. The certificates of insurance and endorsements for each insurance policy will be signed by a person authorized by that insurer to bind coverage on its behalf and will be on forms provided by the City if requested.

All certificates of insurance and endorsements will be received and approved by City prior to the execution of this Agreement. Upon City’s written request, Licensee will also provide City with certified copies of all required insurance policies and endorsements.
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10 H. FAILURE TO MAINTAIN COVERAGE. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced immediately so as to avoid a lapse in the required coverage, City has the right but not the duty to obtain the insurance if it deems necessary and any premium paid by City will be promptly reimbursed by Licensee or City may cancel this Agreement effective upon notice.

17. COMPLIANCE WITH LAW. Licensee shall, at its sole cost and expense, comply with all of the requirements of all federal, state and local authorities and laws now in force, or which may hereafter be in force. The judgment of any court of competent jurisdiction, or the admission by Licensee in any action or proceeding against Licensee, whether City be a party thereto or not, that Licensee has violated any such ordinance or statute shall be conclusive of that fact.

18. WAIVER OF BREACH. Any express or implied waiver of a breach of any term of this Agreement will not constitute a waiver of any further breach of the same or other term of this Agreement.

19. NOTICES. Except as otherwise expressly provided by law, all notices or other communications required of permitted by this Agreement or by law to be served on or given to either party to this Agreement by the other party shall be in writing and shall be deemed served when personally delivered to the party to whom they are directed, or in lieu of the personal service, upon deposit in the United States Mail, certified or registered mail, return receipt requested, postage prepaid at:

City:

City Manager
11600 Air Expressway
Adelanto, California 92301
Licensee:

South Capital Cottage, Inc.

Address: 15054 Daisy Road
Adelanto, CA 92301
Attn: Carol Frazier

20. INDEPENDENT CAPACITY OF LICENSEE. Licensee, its officers, agents, and employees shall act in an independent capacity and shall not represent themselves to be or be construed to be officers, agents, or employees of City
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11 21. TITLE TO THE CENTER. Licensee agrees and affirms that it holds no easement, nor any title, interest or estate in any portion of the Center. The use of any portion of the Center by Licensee shall neither create nor vest in Licensee any ownership or leasehold interest in real property. Fee title to the entire Center remains fully vested in the City.

22. GOVERNING LAW. This Agreement has been made in and shall be construed in accordance with the laws of the State of California and exclusive venue for any action involving this Agreement will be in San Bernardino County.

23. PARTIAL INVALIDITY. Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid or unenforceable, the remaining provisions of this Agreement will remain in effect, unimpaired by the holding.

24. INDEPENDENT COUNSEL. The parties acknowledge that they had the time and opportunity to seek independent legal counsel regarding this Agreement and that they enter into this Agreement on an intelligent and informed basis without any undue influence.

25. CONSTRUCTION. The language of each part of this Agreement shall be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against either party.

26. AUTHORITY / MODIFICATION. The Parties warrant and represent that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may only be modified by written agreement signed by both Parties

27. INTEGRATION. This Agreement constitutes the complete and exclusive expression of all the terms and provisions of the agreement between the Parties. This Agreement supersedes any previous agreements or negotiations between the Parties, whether oral or written.

28. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date.
[SIGNATURES ON FOLLOWING PAGE]
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12 IN WITNESS WHEREOF, the Parties hereto have executed the Agreement the day and year first hereinabove written.

CITY OF ADELANTO: LICENSEE:
___________________ __________________________
Jessie Flores Name: ____________________
City Manager Title: _____________________
South Capitol Cottage, Inc.

ATTEST:
____________________
Brenda Lopez
City Clerk
APPROVED AS TO FORM:
_____________________________
Olivarez Madruga Law Organization, LLP
City Attorney
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13 EXHIBIT 1
Calendar of Events
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14 EXHIBIT 2

RELEASE OF LIABILITY WAIVER
FOR PARTICIPANTS 18 YEARS OF AGE AND OLDER

CITY OF ADELANTO

RELEASE & WAIVER OF LIABILITY
I, ______________________ (“Participant”), fully understand that the use of certain real property owned by the City of Adelanto (“City”), for purposes of ________________________________________________________________ (“Activity”), on _____________, 20____, hosted by ______________________ (“Nonprofit Organization”), may pose some risk of personal injury, death, illness/disease, or property loss or damage. I hereby acknowledge that I am voluntarily participating in the Activity on City-owned property and agree to assume any such risks.

I fully understand and agree that participation in the Activity is done at my own risk and I will be solely responsible for any loss, alteration, or other damage to my personal property. I am fully aware that the Activity may involve potentially hazardous activity, and I am voluntarily participating in the Activity with knowledge of the danger(s) involved. I agree to assume any and all risks of bodily injury, death, or property damage, whether those risks are known or unknown.

I hereby warrant and agree that I am in good health and in proper physical condition to participate in the Activity. If appropriate, I have notified Non-Profit Organization and/or the City of any reasonable accommodation required for me to fully participate in the Activity. I acknowledge that is my sole responsibility to carry my own epi-pen, or other medication, when outdoors and potentially around outdoor allergens that may be detrimental to my health. I have had the opportunity to consult with my health care provider and have done so or have chosen not to do so, at my sole discretion.

I hereby consent to receiving medical treatment, which may be deemed advisable in the event of injury, accident, or illness during this Activity. I acknowledge that NO MEDICAL INSURANCE IS PROVIDED by the City for the Activity and I agree to pay for any medical treatment I may require while involved in this Activity on City-owned property.

In consideration for being permitted to participate in the Activity, I, for myself, my heirs, executives and assigns, hereby waive, release and discharge the City, including its elected and appointed officials, employees, volunteers and agents ("City Parties") from any and all claims for personal injury (including death) or property damage (including, but not limited to, medical expenses and attorneys’ fees) and any other liability to me or any other person in connection with my participation in the Activity from whatever cause, including the negligence of the City Parties and any other participants in the Activity, and I agree to waive my rights to make any of the above claims through a lawsuit or otherwise against the City and the City Parties. I understand that this document is not intended to release any party from any act or omission of “gross negligence.”
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15 I understand that I am responsible for any injury or damage that I cause to others during the Activity, and I agree to indemnify and defend the City and the City Parties from any and all claims, demands, actions or suits, or liabilities that may arise in connection with my participation in the Activity.

By signing below, I acknowledge and represent that I HAVE READ THIS AGREEMENT CAREFULLY, I FULLY UNDERSTAND IT, AND I VOLUNTARILY AGREE TO ITS TERMS. I further understand that accidents may occur during my participation in the Activity and, knowing these risks, I AGREE TO ASSUME THESE RISKS AND TO RELEASE AND HOLD HARMLESS THE CITY AND THE CITY PARTIES FOR ANY LIABILITY arising in connection with my participation in the Activity. No oral representations, statements, or inducements, apart from this written agreement, have been made. If any portion of this agreement is declared invalid by a court, the remainder shall continue in full force and effect.

I declare under the penalty of perjury of the laws of the State of California that I am eighteen (18) years of age or older, that I have read this document and that I am fully competent to sign this agreement:

Signature: _______________________________________ Date:______________ Name: ___________________________________________________________________ Address: ________________________________________________________________ 225
16 EXHIBIT 3

RELEASE OF LIABILITY WAIVER
FOR PARTICIPANTS 17 YEARS OF AGE AND YOUNGER

CITY OF ADELANTO

RELEASE & WAIVER OF LIABILITY

TO BE SIGNED BY PARENT/GUARDIAN
OF PARTICIPANT WHO IS UNDER 18 YEARS OF AGE
The undersigned parent and/or legal guardian of _________________________________, a minor child under the age of eighteen years (“Participant”), does hereby acknowledge and he/she is aware of the dangers and the risks to the Participant’s person and property involved in participating in ________________________________________________________________ (“Activity”), on _____________, 20____, hosted by ______________________ (“Nonprofit Organization”), on certain real property owned by the City of Adelanto (“City”). The undersigned parent and/or legal guardian and Participant acknowledge that Participant is voluntarily participating in the Activity on City-owned property and agree to assume any such risks.

The undersigned parent and/or legal guardian and Participant (collectively, “we” or “our”) fully understand that participation in the Activity is done at Participant’s own risk and we will be solely responsible for any loss, alteration, or other damage to Participant’s personal property. We are fully aware that the Activity may involve potentially hazardous activity, and we acknowledge and understand that Participant is voluntarily participating in the Activity with knowledge of the danger(s) involved. We agree to assume any and all risks of bodily injury, death, or property damage, whether those risks are known or unknown.

The undersigned parent and/or legal guardian believes the Participant to be qualified, in good health, and in proper physical condition to participate in these tasks. If appropriate, the undersigned parent and/or legal guardian has notified the Non-Profit Organization and/or the City of any reasonable accommodation required for the Participant to fully participate in the Activity.

The undersigned parent and/or legal guardian and Participant acknowledge that it is our sole responsibility to carry an epi-pen, or other medication, for the Participant, when outdoors and potentially around outdoor allergens that may be detrimental to the Participant’s health. The undersigned parent and/or legal guardian has had the opportunity to consult with Participant’s health care provider and has done so or has chosen not to do so, at his/her sole discretion.

Consent is given for the Participant to receive medical treatment, which may be deemed advisable in the event of injury, accident or illness during this Activity. We acknowledge that NO MEDICAL INSURANCE IS PROVIDED by the City for the Activity and we agree to pay for any medical treatment Participant may require while involved in this Activity on City-owned property. 226
17 In consideration for being permitted to participate in the Activity, on behalf of myself, the Participant, his/her heirs, executives and assigns, hereby waive, release and discharge the City, including its elected and appointed officials, employees, volunteers and agents ("City Parties") from any and all claims for personal injury (including death) or property damage (including, but not limited to, medical expenses and attorneys’ fees) and any other liability to me or any other person in connection with Participant’s participation in the Activity from whatever cause, including the negligence of the City Parties and any other participants in the Activity, and we agree to waive our rights to make any of the above claims through a lawsuit or otherwise against the City and the City Parties. We understand that this document is not intended to release any party from any act or omission of “gross negligence.” The undersigned parent and/or legal guardian understands that he/she is responsible for any injury or damage that the Participant may cause to others during the Activity, and agrees to indemnify and defend the City and the City Parties from any and all claims or liabilities that may arise in connection with the Participant’s participation in the Activity.

By signing below, the undersigned parent and/or legal guardian, acknowledge and represent that he/she has READ THIS AGREEMENT CAREFULLY, FULLY UNDERSTANDS IT, AND VOLUNTARILY AGREES TO ITS TERMS. The undersigned parent and/or legal guardian further understands that accidents may occur during the participation in the Activity and, knowing these risks,

AGREES TO ASSUME THESE RISKS AND TO RELEASE AND HOLD HARMLESS THE CITY AND THE CITY PARTIES FOR ANY LIABILITY arising in connection with the participation in the Activity. No oral representations, statements, or inducements, apart from this written agreement, have been made. If any portion of this agreement is declared invalid by a court, the remainder shall continue in full force and effect.

I declare under the penalty of perjury of the laws of the State of California that I am eighteen (18) years of age or older, that I have read this document and that I am fully competent to sign this agreement:

Name of Minor: __________________________________________ Age of Minor:
__________
Name of Parent/Guardian: ________________________________________________________ Signature of Parent/Guardian: _____________________________________ Date:____________
Address: ______________________________________________________________________ 227
18 EXHIBIT B
Release & Waiver of Liability and Indemnification Form
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19 Sample Release & Waiver of Liability and Indemnification Form

CITY OF ADELANTO

RELEASE AND WAIVER OF LIABILITY AND INDEMNIFICATION FORM The undersigned acknowledges that the City of Adelanto (“City”) is granting a non-exclusive, revocable license in allowing South Capitol Cottage, Inc. (“Non-Profit”) to use the Glasper Center for the benefit and well-being of the community and residents of the City, from ______________, 20____ to ________________, 20____.

In consideration for being permitted to use the Glasper Center, the undersigned, its members, employees, representatives, successors and assigns, hereby waive, release, and forever discharge all claims, rights, damages, compensation, debts, judgments, costs, executions, and demands which it may now or in the future have against City on account of or in any way connected with, or resulting from any damage or loss (including theft) suffered by Non-Profit in connection with NonProfit’s use of the Glasper Center, its premises and facilities.

Non-Profit acknowledges that City has informed it that the Glasper Center is in need of repairs and rehabilitation, that such repairs and rehabilitation are the sole responsibility of Non-Profit, and that City will not provide any financial assistance or reimbursement to Non-Profit for the costs associated with such repairs and rehabilitation. Non-Profit has nonetheless chosen to use the Glasper Center, its premises and facilities, and accepts responsibility for (1) the security and wellbeing of Non-Profit, its officers, directors, employees, agents, volunteers, and guests and/or visitors, and (2) any loss, alteration, or other damage to any personal property suffered by NonProfit.

It is understood and agreed that all rights under section 1542 of the California Civil Code are hereby expressly waived. That section reads as follows:

A general release does not extend to claims, which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

Non-Profit agrees to indemnify and hold harmless City, its officials, directors, employees, volunteers and agents, against any and all of the liabilities above mentioned which may be asserted at any time and from all costs and/or damages which City may bear or incur by reason thereof.

Non-Profit acknowledges that this Release constitutes a waiver or discharge of all future and present claims including all costs and/or damages, past, present, and future, partial and total, temporary and permanent, that result in any degree, in whatever form, or connected with the use of Glasper Center. (continued next page)
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20 This Release contains the entire agreement between City and Non-Profit with regard to the matters set forth herein and shall be binding upon and inure to the benefit of the successors and assigns of each.

The undersigned further expressly agree that the foregoing Release, Waiver and Indemnity Agreement is intended to be as broad and inclusive as California law allows and that, if any portion is held invalid, it is agreed that the balance shall continue in full legal force and effect.

Dated: ________________________ ________________________________ Signature
________________________________
Name
________________________________
Title
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REQUEST FOR PROPOSALS (RFP)
Non-Exclusive Revocable License Agreement To Use the
Glasper Center

PROPOSALS DUE
Ongoing basis until filled

PROPOSAL SUBMITTAL
3 proposal copies

DELIVERY ADDRESS
City of Adelanto
City Clerk’s Office
11600 Air Expressway
Adelanto, CA 92301

QUESTIONS
Brenda Lopez
[email protected]
(760) 246-2300, ext. 11123
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2 INTRODUCTION
The City of Adelanto (City) is seeking Proposals for a one-year Non-Exclusive Revocable License Agreement with a local non-profit to use the Adelanto Glasper Center (“Glasper Center” or “Center”), a City-owned property located at 17537 Montezuma Street, Adelanto, California 92301.

I. Background
The City of Adelanto is located approximately 9 miles northwest of Victorville in the Victor Valley area of the Mojave Desert, in the northern region of the Inland Empire, with a population of approximately 33,000.

The City was incorporated in 1970 as a general law city. The City is governed by a fivemember City Council and is administered by a City Manager. The City Manager supervises a full-time staff which provides a full array of municipal services.

The City owns the Glasper Center located at 17537 Montezuma Street, Adelanto, California 92301. The City is looking to enter into a Non-Exclusive Revocable License Agreement with a local non-profit to use the Glasper Center for a fee, provided the nonprofit provides services and community events that will benefit the quality of life of the residents within the City.

II. Objective
The City’s primary objective of entering into a Non-Exclusive Revocable License Agreement with a local non-profit is to provide the non-profit a location that will enable them to operate within the City and provide services and community events that will benefit the quality of life of the residents within the City. 245
3 PROPOSAL SUBMISSION
All proposals must be submitted according to the specifications set forth in this RFP. Failure to adhere to these specifications may be cause for rejection of proposal.

I. How to Submit a Proposal
Proposals to the Glasper Center will be accepted on an ongoing basis until filled. Please address all questions of this RFP and send Proposals to:

Attn: Adelanto Glasper Center
City Clerk’s Office
City of Adelanto
11600 Air Expressway
Adelanto, CA 92301
Faxed Proposals will not be accepted.

II. Non-Exclusive Revocable License Agreement
Non-Exclusive Revocable License Agreement to be prepared by the City of Adelanto.

III. Non-Exclusive Revocable License Agreement Term
If granted, the Non-Exclusive Revocable License Agreement will be for a term of one (1) year. Any extensions will need to be approved by the City Council.

IV. Rate
The non-profit shall specify the monthly rental amount in the Proposal. The rental amount will be determined by the outcome of the competitive RFP process. However, the non-profit selected will be expected to pay their proportional share of utilities, as determined by City staff.

V. Cost Liability
Non-profit shall bear all costs associated with submitting the Proposal.

VI. Statement of Rights and Understanding
The City reserves, and may in its sole discretion, exercise the following rights and options with respect to this RFP:

1. To accept, reject or negotiate modifications to any and all Proposals as it shall, in its sole discretion, deem to be in its best interest; submission of an RFP does not bind the City to any action or to any party. Submissions do not create or assume any relationship, agency or obligation by the City, its officers or employees. 246
4 2. To issue additional solicitations for Proposals and/or addenda to the RFP.

3. To award the Non-Exclusive Revocable License Agreement to a non-profit the City has determined to be most responsive, who has submitted a complete proposal which meets the specifications and requirements which are deemed by the City most advantageous to and in the best interest of the City.

4. To negotiate with any one or more of the respondents.

5. To waive any irregularities in any Proposal.

6. To select any Proposals as the basis for negotiations for Non-Exclusive Revocable License Agreement and to negotiate with respondents for amendment or other modifications to their Proposals.

7. To conduct investigations with respect to the qualification of each respondent; to obtain additional information deemed necessary to determine the ability of the respondent to carry out the obligations of the Non-Exclusive Revocable License Agreement. This includes information needed to evaluate the experience and financial capability of the respondent.

VII. Indemnification and Insurance
Non-profit, at its own expense and without exception, shall indemnify, defend and pay all damages, costs, expenses, including attorney fees, and otherwise hold harmless the City, its employees and agents from any liability of any nature or kind in regard to the preparation or presentation of a proposal in response to this RFP.

If non-profit is selected, before beginning operations, non-profit shall procure and maintain at non-profit’s own expense for the duration of the Agreement, the following insurance against claims for injuries to persons or damages to property which may arise from or in connection with the possession, occupancy, operation and use of the Glasper Center by non-profit, non-profit’s agents, representatives, employees or subcontractors. • Comprehensive / Commercial General Liability of not less than $2,000,000 per occurrence and $4,000,000 in general aggregate. • Worker’s Compensation and Employer’s Liability.

VIII. Independent Contractor
Non-profit, in the performance of the Non-Exclusive Revocable License Agreement, will be acting in a wholly independent capacity and not as agents, employees, partners or joint ventures of the City.
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5 IX. Proposal Evaluation
The City will award the Non-Exclusive Revocable License Agreement based on the Proposal that best meets the City’s requirements outlined in this RFP, would provide the best service to the public, and would provide the greatest return to the City.

X. Evaluation Criteria
Proposals will be evaluated on the following criteria. City reserves the right to weigh its evaluation criteria in any manner it deems appropriate.

1. Thoroughness and completeness of Proposal.

2. Responsiveness to RFP requirements.

3. Types of services and community events being provided by the non-profit.

XI. Submission Requirements
The submission requirements for the RFP are as follows:

1. A cover letter signed by an authorized representative of the entity stating its interest in using the Glasper Center, according to the terms and conditions outlined in the Non-Exclusive Revocable License Agreement attached and incorporated herein as Exhibit “A”.

2. Location of non-profit, type of non-profit and number of years as a non-profit.

3. A company profile including a brief description of the non-profit, including nonprofit name, address, phone number, email address and primary contact person; brief history of non-profit, including the current permanent staff size as well as local organization structure. The profile must also include a copy of the organization’s by-laws and the State in which it is organized. Provide the nonprofit’s Federal tax I.D. number. A partnership shall give full names and addresses of all partners.

4. If the non-profit is a joint venture consisting of a combination of business entities, each joint venture shall be included in the proposal.

5. A calendar of anticipated events and services that will be provided in the City.

6. The days and hours of usage that non-profit anticipates using the Glasper Center.

7. Proposed rent that the non-profit will pay for the usage of the Glasper Center.

8. Insurance documentation.

9. Acknowledgement that the Glasper Center is in need of repairs and rehabilitation 248
6 as described in the Release and Waiver of Liability and Indemnification Form, attached and incorporated hereto as Exhibit “B”.

10. Description of non-profit’s ability to pay for all necessary repairs and rehabilitation of the Glasper Center without reimbursement by the City.

11. Description of the manner in which Proposer intends to repair and rehabilitate the Glasper Center.

XII. Signature
All proposals must be signed by an authorized representative of the non-profit. An unsigned proposal shall be rejected and returned to the Proposer.

The signed Proposal will bind the non-profit to its provisions for at least a period of 120 days. Failure of the successful non-profit to accept the obligation of this RFP may result in the cancellation of any award.

XIII. Questions and Inquiries
Inquiries and requests for clarification of the RFP arising during the process or Proposal preparation may be directed to:

City of Adelanto
Attn: City Clerk’s Office
11600 Air Expressway
Adelanto, CA 92301
XIV. Objections to the Findings or Determinations of City Staff If a Proposer objects to the findings or determinations of City staff as to its own proposal or the proposal of another proposer, then the objecting Proposer may submit written objections to City staff’s findings or determinations. Persons who have not submitted a proposal are not eligible to submit written objections but may offer public comment at the meeting of the City Council where the award of one or more contracts will take place. The submission of such objections shall be subject to the following procedures:
(a) Objections must be submitted in writing with the Office of the City Clerk within five (5) calendar days of the City’s finding or determination. Such written objections must be submitted by personal delivery, U.S. mail or overnight courier. Objections submitted after the objection period will be deemed untimely and the City reserves the right to disregard such untimely objections. Objections postmarked or submitted with an overnight courier prior to the submission deadline for objections but received by the City Clerk after the submission deadline for objections has passed will also be deemed untimely. 249
7 (b) The written objection must state, in detail and with specificity, the grounds for the objection and include, all facts, supporting documentation, legal authority and/or argument(s) in support of the objection. Any objections or concerns not set forth in the written objection packet submitted with the City Clerk shall be deemed waived. All factual contentions must be supported by competent and credible evidence as opposed to hearsay or rumor. A Proposer who submits written objections shall also include any and all records, documentation or other corroborating evidence which supports the objection.
(c) The written objections must include the name, address and telephone number of the objector as well as the primary contact person for purposes of obtaining additional information or clarification. If a Proposer objects to the proposal of another Proposer or any finding or determination of City Staff with respect to another Proposer, the Proposer filing a written objection must also deliver or mail a copy of all materials filed with the City Clerk to the objected Proposer.

Proposers whose proposals are the subject of a written objection may submit rebutting statements and evidence by or before the meeting at which the City Council will be asked to consider the award of one or more contracts. (d) The City Council will take any objections under consideration as part of any final decision to award any one or more contracts under this RFP. (e) All of the foregoing notwithstanding, all Proposers are advised that this RFP is intended to give City staff and the City Council the broadest discretion possible to award a contract. No one factor or set of factors, whether positive or negative, shall necessarily be determinative or dispositive as to the City Council’s final decision to award one or more contracts. Both City Staff and the City Council will weigh and consider a multiplicity of factors in an attempt to determine which Proposer or set of Proposers offer the City the best overall value and serves the best interests of the community and City. While the City encourages proposals that meet or exceed all of the baseline requirements of this RFP, the City reserves the right to award a contract(s) to Proposer(s) whose proposal(s) may not necessarily satisfy every requirement. City staff and the City Council further reserve the right to condition the award of any contract on a Proposer’s willingness to modify or amend their proposal in a manner that provides the City with the best value in the judgment of the City Council.

The City Council reserves the right to reject the City staff’s evaluation or determinations on any one or more factors and may also give greater weight to one factor or set of factors over another in making its final decision. Again, the City intends to give itself the broadest discretion possible in making any final decision to award a contract.

City staff and the City Council shall be under no obligation to consider any objection that does not comply with the objection procedures set forth in this section 250
8 XV. Award of Non-Exclusive Revocable License Agreement Selection of the final non-profit will be subject to approval by the City Manager with a recommendation that staff enter into an agreement with the desired non-profit. Upon approval by the City Manager, the final non-profit will be subject to a formal approval by the City Council.
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9 ATTACHMENT “A”

REQUIREMENTS
As per the terms of the Non-Exclusive Revocable License Agreement, the selected non-profit shall be provided a non-exclusive revocable license to use the Glasper Center. Non-profit understands that City may enter premises at any time and may enter into non-exclusive revocable license agreements with other non-profits. Non-profit agrees to not cause any damage to be made to the Glasper Center, nor any sprinkler systems, utilities, brick work, landscaping, driveway, curb, gutter, sidewalk, or pavement. Any damage resulting from the non-profit’s operation shall be repaired or replaced in kind to industry standards. 252
10 EXHIBIT “A”

SAMPLE NON-EXCLUSIVE REVOCABLE LICENSE AGREEMENT - DO NOT SIGN

NON-EXCLUSIVE REVOCABLE LICENSE AGREEMENT BETWEEN

THE CITY OF ADELANTO AND
_________________________________________
THIS NON-EXCLUSIVE REVOCABLE LICENSE AGREEMENT (“Agreement”) is made and executed this _____ day of_______________ 2022, by and between the City of Adelanto, a California municipal corporation, as Licensor (“City”) and ________________________ (“Licensee”). City and Licensee are collectively referred to herein as the “Parties.”
RECITALS.

WHEREAS, City owns certain real property described as the Glasper Center, located at 17537 Montezuma, Adelanto, California 92301 (“Center”); and WHEREAS, City wishes that the Center be used for the benefit and well-being of the community and residents of the City; and
WHEREAS, Licensee is a non-profit public benefit corporation providing valuable civic services to members of the community; and
WHEREAS, Licensee desires that City grant a non-exclusive, revocable license to the Center as set forth herein; and
WHEREAS, subject to the terms and conditions set forth herein, City wishes to grant to Licensee a non-exclusive, revocable license to use the Center for the purpose of providing a community service to the City’s residents;
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. LICENSE. City hereby grants Licensee a non-exclusive, revocable license to use the Center for the term and upon the terms and conditions set forth in this Agreement. Licensee does not acquire any right to the Center independent of City’s rights. City’s action herein is not, and 253
11 shall not be construed to be, a conveyance of a property interest or lease; it is a license to use City’s property as described in this Agreement. City shall have the right to enter upon the Center for the duration of this Agreement, without notice to, or permission of, Licensee. The City shall also maintain control of the Center including, without limitation, the right to grant additional licenses for the use of the Facilities in consultation with the Licensee.

2. USE OF THE CENTER.
(a) Licensee acquires the privilege of using the Center from ___________ to ______________, ____________ a.m. / p.m. to ________ a.m. / p.m. (“Usage Times”). (b) Licensee agrees to conduct all of its activities during Usage Times with full regard for public safety, and to observe and abide by all applicable laws, regulations, and requests by City or any other governmental agency responsible for public safety. All activities must be listed in a Calendar of Events, which is attached and incorporated hereto as Exhibit “1”. (c) In the event Licensee holds an event or activity for which public participation is permitted, Licensee shall require all participants of such events or activities who are eighteen (18) years of age or older execute a Release & Waiver of Liability form, attached hereto as Exhibit 2, prior to the participant’s participation in the Licensee’s event or activity. For all participants who are seventeen (17) years of age or younger, Licensee shall require the parent(s) and/or legal guardian(s) of the minor participant execute a Release & Waiver of Liability form, attached hereto as Exhibit 3, on behalf of the minor participant, prior to the participant’s participation in the Licensee’s event or activity.
(d) No portion of the Center’s sidewalks, ramps, entries, doors, corridors, passageways, hallways, stairways, aisles or driveways shall be obstructed or impeded by Licensee or its agents, employees, contractors, patrons, or invitees, or used by any of them for any purpose other than ingress or egress from the Center’s premises. Access to public utilities, heating and air conditioning vents, lighting fixtures, fire hoses, fire extinguishers, fire prevention water sprinkler systems, and restrooms shall not be covered or obstructed at any time by Licensee or its agents, employees, contractors, patrons, or invitees. (e) Any conflict with Licensee regarding the use of the Center shall be resolved by the City of Adelanto City Manager (“City Manager”) in his or her sole discretion.

3. COMPENSATION. In exchange for the use of the Center, Licensee shall pay City an annual sum of _________________ ($___________) and shall be responsible for the payment of their proportional share of the utilities, as determined by City staff (“License Fee”). City reserves the right to amend the License Fee, as determined appropriately by the City Manager. 254
12 4. TERM. This Agreement shall be for a term of one (1) year. This Agreement shall be reviewed by the City Council at the conclusion of the initial term for possible renewal for an additional one (1) year term. If the City Council does not renew this Agreement within thirty (30) days of the termination date of any term, this Agreement shall be deemed terminated.

5. TERMINATION.
(a) City and Licensee shall each have the right to terminate this Agreement upon forty-five (45) days written notice to the other party. Such notice of termination may be given at any time, with or without cause.
(b) Condition on Termination.
(i) Upon the expiration or earlier termination of the Term of the License, Licensee shall vacate the Center, in good order and condition, in the same condition as received subject to ordinary wear and tear, and any alterations to the Center made by Licensee pursuant to Section 12, as required to comply with applicable laws or otherwise not required to be removed by City, “warehouse clean” and free of debris.
(ii) Licensee shall remove all of its personal property from the Center. (iii) Licensee acknowledges that occupation and use of the Center must cease upon the expiration or earlier termination of this License. (iv) The provisions of this Section shall survive the expiration or earlier termination of the Term of this License. If Licensee fails to fulfill its obligations under this Section, City shall have the right, in its sole discretion and without prejudice to any other remedy it may have under this Agreement or at law, or so much thereof as necessary, to satisfy Licensee’s obligations under this Section at Licensee’s sole cost and expense.

6. CENTER MAINTENANCE.
(a) Licensee shall at all times maintain the Center in good order, condition, and repair. If Licensee fails to maintain the Center in a condition satisfactory to City, as determined by City in its reasonable discretion, and if Licensee fails to correct such conditions pursuant to Section 9 of this Agreement, then City may, at its option, terminate this License and/or correct the condition in the Center, and Licensee shall bear the reasonable costs thereof. (b) City shall have the right under this Section to require Licensee to make repairs or perform maintenance of Center in a shorter period of time if such maintenance or repair is 255
13 necessary to protect the public safety or prevent property damage, and Licensee shall be responsible to reimburse City for the cost of same.

7. CENTER IMPROVEMENTS. Licensee shall have the right, but not the obligation, from time to time and at its own expense, to install improvements and upgrades or make other changes to the Center so as to increase its efficiency or otherwise improve its operational characteristics. However, no such improvements, upgrades or changes shall be made without the prior written approval of City.

8. INSPECTIONS.
(a) Quarterly Inspections by City. City shall, at City’s sole cost and expense, inspect Center as often as necessary, but not less than once on a quarterly basis, and shall provide Licensee with a quarterly inspection report within three (3) days of said inspection, which describes the condition of Center. City reserves the right to conduct inspections on a more frequent basis in its sole and absolute discretion. Licensee shall promptly perform any and all necessary and appropriate repairs or maintenance identified as a result of said inspection. In the event Licensee fails to perform any and all necessary and appropriate repairs or maintenance identified as a result of said inspection pursuant to Section 9, then City may, at its option, terminate this License and/or correct the condition in the Center, and Licensee shall bear the reasonable costs thereof.
(b) Annual Inspection by San Bernardino County Fire and Health Departments. The Center shall, at City’s sole cost and expense, be inspected by the San Bernardino County Fire Department and San Bernardino County Health Department as often as necessary, but in any event at least once each year. City shall provide Licensee with a true and correct copy of the San Bernardino County Fire Department and San Bernardino County Health Department’s annual inspection reports on or before each anniversary of the Effective Date of this License. City reserves the right to require inspections on a more frequent basis in its sole and absolute discretion. Licensee shall promptly perform any and all necessary and appropriate repairs or maintenance identified as a result of said inspection. In the event Licensee fails to perform any and all necessary and appropriate repairs or maintenance identified as a result of said inspection pursuant to Section 9, then City may, at its option, terminate this License and/or correct the condition in the Center, and Licensee shall bear the reasonable costs thereof

9. REMEDIES. In the event that Licensee fails to comply with any obligation hereunder, City shall give a three (3) day notice to Licensee of such noncompliance and may give thirty (30) day written notice of termination. If Licensee fails to remedy same within three days – or, if such noncompliance cannot be remedied within three days, if Licensee fails to commence a cure within this period and diligently thereafter pursue to completion – City shall have the right to terminate this Agreement on the date specified in the initial thirty (30) day notice. If Licensee 256
14 fails to maintain the Center in good condition, then City has the right, but not the obligation, to perform the necessary maintenance, and Licensee shall reimburse City for the reasonable costs incurred by the City. In addition to the other available rights and remedies, a Party may institute legal action to cure, correct or remedy any default of this Agreement

10. NO RESPONSIBILITY.
(a) It is understood and agreed that City has no obligation to safeguard or insure any property installed or maintained by Licensee at the Center. All such obligations are solely those of the Licensee. Licensee will not look to City for any loss of, damage to, or destruction of such property, except where it is caused by the sole active negligence or willful misconduct of City or its agents or employees.
(b) Licensee shall be responsible for any damages to persons or property which may arise out of Licensee’s, or any of Licensee’s agents, employees, independent contractors, or other person acting by, through, or on Licensee’s behalf, use of the Center, or any other act or omission. Licensee agrees to reimburse City for any and all costs incurred by City to repair or otherwise remedy any such damages.

11. NO USE OF CITY FUNDS; NO FUNDRAISING BY CITY. Licensee acknowledges and agrees that City shall have no obligation to provide or support Licensee’s use of the Center or Licensee’s programming with any City funds or perform any fundraising service on behalf of Licensee.

12. ALTERATIONS.
(a) Licensee shall not make or cause to be made any alterations, installations, improvements, additions or other physical changes in or about the Center without obtaining the prior written approval of City with respect thereto, which approval may be withheld for any reason in City’s sole discretion.
(b) Licensee shall make no change or alteration to the exterior of the Center without City’s prior written approval, which approval may be withheld for any reason in City’s sole discretion.
(c) Any alterations, improvements, or additions shall at once become the property of City and shall be surrendered to the City upon termination of this Agreement; provided, however, that City may require Licensee to remove any such alterations, improvements, or additions, to restore the Center to the condition existing at the time Licensee took possession of Center. All costs of removal and/or alterations shall be borne by Licensee. This clause shall not apply to moveable equipment, furniture, or other personal property owned by Licensee. 257
15 (d) Any alterations, improvements, or additions shall be made or performed at Licensee’s sole cost and expense by a contractor or contractors acceptable to City and in good, workmanlike and lien free manner. It is specifically understood and agreed that City has no obligation and has made no promises to finance the requested alterations, improvements or additions, and is under no obligation to assist Licensee in obtaining any or all necessary permits, licenses, etc. for such alterations, improvements, or additions. (e) Should Licensee make any alterations, improvements, or additions without the prior written approval of City, City may, at any time during the Term of this Agreement, require that Licensee remove any or all of the same.

13. ASSUMPTION OF RISK. Licensee acknowledges and agrees that the City makes no representations or warranties, express or implied, as to the condition or suitability for Licensee’s use of any portion of the Center. Licensee has conducted all inspections of the property to its satisfaction and agrees to enter and use the Center in its “as-is, with all faults” condition, with full acceptance of all conditions thereon. City shall have no obligation to maintain or otherwise prepare the Center for use by Licensee. Licensee assumes the risk that certain conditions may exist on the Center and hereby releases the City from all claims, actions, demands, rights, damages, costs or expenses that might arise out of or in connection with any condition of the Center, including any dangerous condition of property. City and its agents and employees shall not be responsible or liable for loss or damages by reason of fire, theft, collision or any other cause to Licensee’s personnel, equipment, or other personal property. By use of the Center, Licensee assumes all risk of loss or damage to property, and assumes all risk of personal injury

14. ASSIGNMENT. Licensee is not permitted to assign this Agreement or any interest herein.

15. INDEMNIFICATION.

To the fullest extent permitted by law, Licensee shall immediately indemnify, defend, and hold harmless, with legal counsel of the City’s choosing, the City, its directors, officials, officers, employees, volunteers, and agents from any and all claims, demands, causes of action, costs, expenses, liability, 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 this Agreement or Licensee’s use of any part of the Center, including without limitation the payment of all reasonable attorneys’ fees and costs, including expert witness fees.

Licensee shall reimburse City, its directors, officials, officers, employees, volunteers, and agents for all legal expenses and costs incurred by each of them in connection with any Claims subject to indemnification by Licensee, or in enforcing the indemnity herein provided. 258
16 Licensee’s indemnification obligations shall not be restricted by the amount of any insurance proceeds. The sole limitation on Licensee’s indemnity obligation herein is for Claims found to be caused by the sole negligence or willful misconduct of the City. Licensee’s indemnification obligation shall survive any revocation or termination of this Agreement It expressly understood and agreed that the foregoing provisions of this Section 15 shall survive termination of this Agreement.

16. INSURANCE. Prior to the commencement of this Agreement, Licensee shall procure and maintain policies that meet the requirements and specifications set forth under this Article. Licensee shall procure and maintain the following insurance coverage at its own expense.

A. COMMERCIAL GENERAL LIABILITY INSURANCE. Licensee shall procure and maintain Commercial General Liability Insurance (“CGL Coverage”) as broad as Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001) or its equivalent. Such CGL Coverage will have minimum limits of no less than Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) in the general aggregate for bodily injury, personal injury, property damage, operations, products and completed operations, and contractual liability.

B. WORKERS COMPENSATION INSURANCE / EMPLOYERS LIABILITY INSURANCE. A policy of workers’ compensation insurance in such amount as will fully comply with the laws of the State of California and which will indemnify, insure and provide legal defense for both Licensee and City against any loss, claim or damage arising from any injuries or occupational diseases occurring to any worker employed by or any persons retained by Licensee during the Term of this Agreement.

C. ADDIITIONAL INSURED REQUIREMENTS. The CGL Coverage will contain an endorsement naming the City and City’s elected and appointed officials, officers, employees, agents and volunteers as additional insureds.

D. REQUIRED CARRIER RATING. All varieties of insurance required under this Agreement will be procured from insurers admitted in the State of California and authorized to issue policies directly to California insureds. Except as otherwise provided elsewhere under this Article, all required insurance will be procured from insurers who, according to the latest edition of the Best’s Insurance Guide, have an A.M. Best’s rating of no less than A:VII. City may also accept policies procured by insurance carriers with a Standard & Poor’s rating of no less than BBB according to the latest published edition the Standard & Poor’s rating guide.

As to Workers’ Compensation Insurance / Employer’s Liability Insurance, the 259
17 City Manager is authorized to authorize lower ratings than those set forth in this Section.

E. PRIMACY OF CONCESSIONAIRE’S INSURANCE. All policies of insurance provided by Licensee will be primary to any coverage available to City or City’s elected or appointed officials, officers, employees, agents or volunteers. Any insurance or self-insurance maintained by City or City’s elected or appointed officials, officers, employees, agents or volunteers will be in excess of Licensee’s insurance and will not contribute with it.

F. WAIVER OF SUBROGATION. All insurance coverage provided pursuant to this Agreement will not prohibit Licensee or Licensee’s officers, employees, agents, subcontractors or subconsultants from waiving the right of subrogation prior to a loss. Licensee hereby waives all rights of subrogation against City, its officials, officers, employees, agents and volunteers.

G. VERIFICATION OF COVERAGE. Licensee acknowledges, understands and agrees, that City’s ability to verify the procurement and maintenance of the insurance required under this Article is critical to safeguarding City’s financial well-being and, indirectly, the collective well-being of the residents of the City.

Accordingly, Licensee warrants, represents and agrees that it will furnish City with original certificates of insurance and endorsements evidencing the coverage required under this Article on forms satisfactory to City in its sole and absolute discretion. The certificates of insurance and endorsements for each insurance policy will be signed by a person authorized by that insurer to bind coverage on its behalf and will be on forms provided by the City if requested.

All certificates of insurance and endorsements will be received and approved by City prior to the execution of this Agreement. Upon City’s written request, Licensee will also provide City with certified copies of all required insurance policies and endorsements.

H. FAILURE TO MAINTAIN COVERAGE. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced immediately so as to avoid a lapse in the required coverage, City has the right but not the duty to obtain the insurance if it deems necessary and any premium paid by City will be promptly reimbursed by Licensee or City may cancel this Agreement effective upon notice.

17. COMPLIANCE WITH LAW. Licensee shall, at its sole cost and expense, comply with all of the requirements of all federal, state and local authorities and laws now in force, or 260
18 which may hereafter be in force. The judgment of any court of competent jurisdiction, or the admission by Licensee in any action or proceeding against Licensee, whether City be a party thereto or not, that Licensee has violated any such ordinance or statute shall be conclusive of that fact.

18. WAIVER OF BREACH. Any express or implied waiver of a breach of any term of this Agreement will not constitute a waiver of any further breach of the same or other term of this Agreement.

19. NOTICES. Except as otherwise expressly provided by law, all notices or other communications required of permitted by this Agreement or by law to be served on or given to either party to this Agreement by the other party shall be in writing and shall be deemed served when personally delivered to the party to whom they are directed, or in lieu of the personal service, upon deposit in the United States Mail, certified or registered mail, return receipt requested, postage prepaid at:

City:

City Manager
11600 Air Expressway
Adelanto, California 92301
Licensee:
______________________________
Address:_______________________
______________________________
Attn: ________________________

20. INDEPENDENT CAPACITY OF LICENSEE. Licensee, its officers, agents, and employees shall act in an independent capacity and shall not represent themselves to be or be construed to be officers, agents, or employees of City

21. TITLE TO THE CENTER. Licensee agrees and affirms that it holds no easement, nor any title, interest or estate in any portion of the Center. The use of any portion of the Center by Licensee shall neither create nor vest in Licensee any ownership or leasehold interest in real property. Fee title to the entire Center remains fully vested in the City.

22. GOVERNING LAW. This Agreement has been made in and shall be construed in accordance with the laws of the State of California and exclusive venue for any action involving this Agreement will be in San Bernardino County.

23. PARTIAL INVALIDITY. Should any provision of this Agreement be held by a court 261
19 of competent jurisdiction to be either invalid or unenforceable, the remaining provisions of this Agreement will remain in effect, unimpaired by the holding.

24. INDEPENDENT COUNSEL. The parties acknowledge that they had the time and opportunity to seek independent legal counsel regarding this Agreement and that they enter into this Agreement on an intelligent and informed basis without any undue influence.

25. CONSTRUCTION. The language of each part of this Agreement shall be construed simply and according to its fair meaning, and this Agreement will never be construed either for or against either party.

26. AUTHORITY / MODIFICATION. The Parties warrant and represent that all necessary action has been taken by the Parties to authorize the undersigned to execute this Agreement and to engage in the actions described herein. This Agreement may only be modified by written agreement signed by both Parties

27. INTEGRATION. This Agreement constitutes the complete and exclusive expression of all the terms and provisions of the agreement between the Parties. This Agreement supersedes any previous agreements or negotiations between the Parties, whether oral or written.

28. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which will be an original, but all of which together will constitute one instrument executed on the same date.
[SIGNATURES ON FOLLOWING PAGE]
262
20 IN WITNESS WHEREOF, the Parties hereto have executed the Agreement the day and year first hereinabove written.

CITY OF ADELANTO: LICENSEE:
___________________ __________________________
Jessie Flores
City Manager
ATTEST:
____________________
Brenda Lopez
City Clerk
APPROVED AS TO FORM:
_____________________________
Olivarez Madruga Law Organization, LLP
City Attorney
263
21 EXHIBIT 1
Calendar of Events
264
22 EXHIBIT 2

RELEASE OF LIABILITY WAIVER
FOR PARTICIPANTS 18 YEARS OF AGE AND OLDER

CITY OF ADELANTO

RELEASE & WAIVER OF LIABILITY
I, ______________________ (“Participant”), fully understand that the use of certain real property owned by the City of Adelanto (“City”), for purposes of ________________________________________________________________ (“Activity”), on _____________, 20____, hosted by ______________________ (“Nonprofit Organization”), may pose some risk of personal injury, death, illness/disease, or property loss or damage. I hereby acknowledge that I am voluntarily participating in the Activity on City-owned property and agree to assume any such risks.

I fully understand and agree that participation in the Activity is done at my own risk and I will be solely responsible for any loss, alteration, or other damage to my personal property. I am fully aware that the Activity may involve potentially hazardous activity, and I am voluntarily participating in the Activity with knowledge of the danger(s) involved. I agree to assume any and all risks of bodily injury, death, or property damage, whether those risks are known or unknown.

I hereby warrant and agree that I am in good health and in proper physical condition to participate in the Activity. If appropriate, I have notified Non-Profit Organization and/or the City of any reasonable accommodation required for me to fully participate in the Activity. I acknowledge that is my sole responsibility to carry my own epi-pen, or other medication, when outdoors and potentially around outdoor allergens that may be detrimental to my health. I have had the opportunity to consult with my health care provider and have done so or have chosen not to do so, at my sole discretion.

I hereby consent to receiving medical treatment, which may be deemed advisable in the event of injury, accident, or illness during this Activity. I acknowledge that NO MEDICAL INSURANCE IS PROVIDED by the City for the Activity and I agree to pay for any medical treatment I may require while involved in this Activity on City-owned property.

In consideration for being permitted to participate in the Activity, I, for myself, my heirs, executives and assigns, hereby waive, release and discharge the City, including its elected and appointed officials, employees, volunteers and agents ("City Parties") from any and all claims for personal injury (including death) or property damage (including, but not limited to, medical expenses and attorneys’ fees) and any other liability to me or any other person in connection with my participation in the Activity from whatever cause, including the negligence of the City Parties and any other participants in the Activity, and I agree to waive my rights to make any of the above claims through a lawsuit or 265
23 otherwise against the City and the City Parties. I understand that this document is not intended to release any party from any act or omission of “gross negligence.” I understand that I am responsible for any injury or damage that I cause to others during the Activity, and I agree to indemnify and defend the City and the City Parties from any and all claims, demands, actions or suits, or liabilities that may arise in connection with my participation in the Activity.

By signing below, I acknowledge and represent that I HAVE READ THIS AGREEMENT CAREFULLY, I FULLY UNDERSTAND IT, AND I VOLUNTARILY AGREE TO ITS TERMS.

I further understand that accidents may occur during my participation in the Activity and, knowing these risks, I AGREE TO ASSUME THESE RISKS AND TO RELEASE AND HOLD HARMLESS THE CITY AND THE CITY PARTIES FOR ANY LIABILITY arising in connection with my participation in the Activity. No oral representations, statements, or inducements, apart from this written agreement, have been made. If any portion of this agreement is declared invalid by a court, the remainder shall continue in full force and effect.

I declare under the penalty of perjury of the laws of the State of California that I am eighteen (18) years of age or older, that I have read this document and that I am fully competent to sign this agreement:

Signature: _______________________________________ Date:______________ Name: ___________________________________________________________________ Address: ________________________________________________________________ 266
24 EXHIBIT 3

RELEASE OF LIABILITY WAIVER
FOR PARTICIPANTS 17 YEARS OF AGE AND YOUNGER

CITY OF ADELANTO

RELEASE & WAIVER OF LIABILITY

TO BE SIGNED BY PARENT/GUARDIAN
OF PARTICIPANT WHO IS UNDER 18 YEARS OF AGE
The undersigned parent and/or legal guardian of _________________________________, a minor child under the age of eighteen years (“Participant”), does hereby acknowledge and he/she is aware of the dangers and the risks to the Participant’s person and property involved in participating in ________________________________________________________________ (“Activity”), on _____________, 20____, hosted by ______________________ (“Nonprofit Organization”), on certain real property owned by the City of Adelanto (“City”). The undersigned parent and/or legal guardian and Participant acknowledge that Participant is voluntarily participating in the Activity on City-owned property and agree to assume any such risks.

The undersigned parent and/or legal guardian and Participant (collectively, “we” or “our”) fully understand that participation in the Activity is done at Participant’s own risk and we will be solely responsible for any loss, alteration, or other damage to Participant’s personal property.

We are fully aware that the Activity may involve potentially hazardous activity, and we acknowledge and understand that Participant is voluntarily participating in the Activity with knowledge of the danger(s) involved. We agree to assume any and all risks of bodily injury, death, or property damage, whether those risks are known or unknown.

The undersigned parent and/or legal guardian believes the Participant to be qualified, in good health, and in proper physical condition to participate in these tasks. If appropriate, the undersigned parent and/or legal guardian has notified the Non-Profit Organization and/or the City of any reasonable accommodation required for the Participant to fully participate in the Activity. The undersigned parent and/or legal guardian and Participant acknowledge that it is our sole responsibility to carry an epi-pen, or other medication, for the Participant, when outdoors and potentially around outdoor allergens that may be detrimental to the Participant’s health. The undersigned parent and/or legal guardian has had the opportunity to consult with Participant’s health care provider and has done so or has chosen not to do so, at his/her sole discretion.

Consent is given for the Participant to receive medical treatment, which may be deemed advisable in the event of injury, accident or illness during this Activity. We acknowledge that NO MEDICAL INSURANCE IS PROVIDED by the City for the Activity and we agree to pay for any medical treatment Participant may require while involved in this Activity on City-owned property. 267
25 In consideration for being permitted to participate in the Activity, on behalf of myself, the Participant, his/her heirs, executives and assigns, hereby waive, release and discharge the City, including its elected and appointed officials, employees, volunteers and agents ("City Parties") from any and all claims for personal injury (including death) or property damage (including, but not limited to, medical expenses and attorneys’ fees) and any other liability to me or any other person in connection with Participant’s participation in the Activity from whatever cause, including the negligence of the City Parties and any other participants in the Activity, and we agree to waive our rights to make any of the above claims through a lawsuit or otherwise against the City and the City Parties. We understand that this document is not intended to release any party from any act or omission of “gross negligence.” The undersigned parent and/or legal guardian understands that he/she is responsible for any injury or damage that the Participant may cause to others during the Activity, and agrees to indemnify and defend the City and the City Parties from any and all claims or liabilities that may arise in connection with the Participant’s participation in the Activity.

By signing below, the undersigned parent and/or legal guardian, acknowledge and represent that he/she has READ THIS AGREEMENT CAREFULLY, FULLY UNDERSTANDS IT, AND VOLUNTARILY AGREES TO ITS TERMS. The undersigned parent and/or legal guardian further understands that accidents may occur during the participation in the Activity and, knowing these risks, AGREES TO ASSUME THESE RISKS AND TO RELEASE AND HOLD HARMLESS THE CITY AND THE CITY PARTIES FOR ANY LIABILITY arising in connection with the participation in the Activity. No oral representations, statements, or inducements, apart from this written agreement, have been made. If any portion of this agreement is declared invalid by a court, the remainder shall continue in full force and effect.

I declare under the penalty of perjury of the laws of the State of California that I am eighteen (18) years of age or older, that I have read this document and that I am fully competent to sign this agreement:

Name of Minor: __________________________________________ Age of Minor:
__________
Name of Parent/Guardian: ________________________________________________________ Signature of Parent/Guardian: _____________________________________ Date:____________
Address: ______________________________________________________________________ 268
26 EXHIBIT B
Sample Release & Waiver of Liability and Indemnification Form

CITY OF ADELANTO

RELEASE AND WAIVER OF LIABILITY AND INDEMNIFICATION FORM The undersigned acknowledges that the City of Adelanto (“City”) is granting a non-exclusive, revocable license in allowing (“Non-Profit”) to use the Glasper Center for the benefit and well-being of the community and residents of the City, from ______________, 20____ to ________________, 20____.

In consideration for being permitted to use the Glasper Center, the undersigned, its members, employees, representatives, successors and assigns, hereby waive, release, and forever discharge all claims, rights, damages, compensation, debts, judgments, costs, executions, and demands which it may now or in the future have against City on account of or in any way connected with, or resulting from any damage or loss (including theft) suffered by Non-Profit in connection with Non-Profit’s use of the Glasper Center, its premises and facilities.

Non-Profit acknowledges that City has informed it that the Glasper Center is in need of repairs and rehabilitation, that such repairs and rehabilitation are the sole responsibility of Non-Profit, and that City will not provide any financial assistance or reimbursement to Non-Profit for the costs associated with such repairs and rehabilitation. Non-Profit has nonetheless chosen to use the Glasper Center, its premises and facilities, and accepts responsibility for (1) the security and wellbeing of Non-Profit, its officers, directors, employees, agents, volunteers, and guests and/or visitors, and (2) any loss, alteration, or other damage to any personal property suffered by NonProfit.

It is understood and agreed that all rights under section 1542 of the California Civil Code are hereby expressly waived. That section reads as follows:

A general release does not extend to claims, which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.

Non-Profit agrees to indemnify and hold harmless City, its officials, directors, employees, volunteers and agents, against any and all of the liabilities above mentioned which may be asserted at any time and from all costs and/or damages which City may bear or incur by reason thereof.

Non-Profit acknowledges that this Release constitutes a waiver or discharge of all future and present claims including all costs and/or damages, past, present, and future, partial and total, temporary and permanent, that result in any degree, in whatever form, or connected with the use of Glasper Center.

This Release contains the entire agreement between City and Non-Profit with regard to the matters set forth herein and shall be binding upon and inure to the benefit of the successors and assigns of each. 269
27 The undersigned further expressly agree that the foregoing Release, Waiver and Indemnity Agreement is intended to be as broad and inclusive as California law allows and that, if any portion is held invalid, it is agreed that the balance shall continue in full legal force and effect.

Dated: ________________________ ________________________________ Signature
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