HomeMy WebLinkAboutActivated Events, LLC License Agreement Special Event At Woodward Park Boots In The Park 4/3/23 UUUUJIIy.II CI IVCIVp-.IU.VCVLr/VV-/1UUliW UG U-OJU r'DUVVMVJULVOJ
LICENSE AGREEMENT
SPECIAL EVENT—AT WOODWARD PARK
(CITY OF FRESNO —ACTIVATED EVENTS "BOOTS IN THE PARK")
THIS LICENSE AGREEMENT (this "Agreement") is dated this 3rd day of April,
2023, and is entered into by and between the CITY OF FRESNO, a California municipal
corporation organized and existing under the laws of the State of California ("City"), and
ACTIVATED EVENTS, LLC., a California limited liability corporation ("Activated
Events"), for use of Woodward Park ("Venue").
AGREEMENT
In consideration of the mutual promises, covenants, and agreements herein
contained, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Activated Events shall, as an independent contractor, utilize Venue for up
to three events annually per year ("Events") between April 1, 2023 through October 31,
2024. In such capacity, Activated Events shall have exclusive authority over the
operations at the Venue (as depicted in Exhibit A) for purposes of the Events. Activated
Events shall provide services consistent with the standards for performance of services
in this Agreement, and where not expressed herein, in accordance with generally
accepted industry standards. In no event shall Activated Events hold itself out as, act
as, or be the agent of, City, without the City's express written authority to do so.
2. Any and all Fees and Costs generated from the Events, as outlined in
Section 6 below, shall be provided to the City consistent with the terms of this
Agreement, within ten days following each Event.
3. Activated Events shall be responsible for managing all operations and
production of Events. Furthermore, Activated Events is responsible for ensuring that, by
the end of each Event, the Venue is restored to the condition which it was in
immediately prior to the Event in all material respects, ordinary wear and tear excepted.
If the Venue is not restored to the City's reasonable satisfaction, the City shall notify
Activated Events thereof and Activated Events shall use commercially reasonable
efforts to restore the Venue in all material respects to its prior condition, ordinary wear
and tear excepted, as promptly as reasonably practicable. Activated Events reserves
the right to pursue claims against any parties responsible for damage to the Venue.
4. On event dates, Activated Events shall have access to the Venue from
6:00 a.m. to 11:59 p.m. In addition, Activated Events shall have exclusive access to the
parking facilities beginning at 8:00 am to 11:59 pm. The City and Activated Events shall
mutually agree upon at the time the Event is booked, a load in and load out schedule
based on the Event's size of operational needs in accordance with the City's Master
Fee Schedule cost.
5. Events. Activated Events shall in good faith provide notice to the City to
reserve the Venue within 18 months of the date of the Event.
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Dates shall be subject to availability, and Activated Events shall not have priority over
previously scheduled events that may conflict with Activated Events' dates.
6. Fees and Costs. For each year of this Agreement, Activated Events shall
pay to the City for the use and occupancy of the Venue, the following sums:
Rental Fee: In consideration of said use, Activated Events will pay the City a
rental fee for the Event ("Reservation Fee"). The Rental Fee for each Event shall be
one of the following:
A. Rental fees for the Venue and concessions for events with up to 10,000
ticketed in attendance shall be $30,000 per day.
B. Rental fees for the Venue and concessions for events over 10,001
ticketed in attendance shall be $50,000 per day.
Cleaning Fee: $1,000 initial deposit plus $200 additional each event day ($3,600
per year).
Staff: $15.00 per hour, with a minimum of four hours per Event. Event
coordinator is provided to monitor event and address facility needs.
Stage setup & usage: $600 per event (assessed per event if set-up required).
Power Distribution: Activated Events will be solely responsible for any electrical
or other power distribution above that which is fixed within the Venue for the events.
7. Other conditions:
A. Ace Parking is under contractual agreement with the City to collect an
entry fee on all vehicles entering Woodward Park according to the City of Fresno Master
Fee Schedule. The City shall charge a parking fee up to $5.00 per vehicle per Event.
Woodward Park (the "Park") can accommodate up to 1,800 cars inside Venue for
parking, should Activated Event require additional parking, the City may provide offsite
parking if need. Activated Events will not be authorized to charge Park entrance fees to
attendees entering the park as a pedestrian or on bicycles but may utilize reasonable
means to charge attendees for access to the event, except as otherwise provided in this
Agreement. All City of Fresno employees and City vehicles will be granted entry into
any location in the Park as is consistent with normal Park operations. The City may
also allow public access to portions of the Park not being used for the Event.
B. Activated Events acknowledges that the Venue is one component in a
public park owned and operated by the City. During the events covered by this
Agreement, the City shall have the right to use or permit the use of any portion of the
Park, other than the Venue, to any person or group regardless of the nature of use.
Activated Events agrees to take reasonable efforts to minimize the disturbance to the
operation of and/or other uses of the Park by the City and the public. In accordance
with the City's quiet hours, Activated Events acknowledges and understands that all
amplified music shall end by 10:00 pm.
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C. Activated Events shall not make any alterations or improvements to the
Venue without the prior written consent of the City, which consent may be withheld at
the City's sole and absolute discretion. Any alternations or improvements of whatever
nature made or placed by Activated Events to or on the Venue, except movable trade
fixtures, shall, at the option of City, (i) be removed by Activated Events, at Activated
Events' expense, or (ii) become the property of the City. City assumes no responsibility
for any property placed in the Venue. Notwithstanding anything to the contrary,
Activated Events shall be solely responsible for any losses arising out of any rigging
from or to the physical structure of the facility or any fixture thereto, set-up, alterations,
and/or improvements at or to the Facility necessitated by and/or performed with respect
to the event.
D. Royalty payments and copyright clearance are the sole responsibility of
Activated Events. Activated Events must accept all responsibility for and absolve the
City from any liability or expense arising out of the use of any composition, work, or
material covered by copyright.
8. Activated Events will supply all required security officers deemed
necessary by the Fresno Police Department.
9. Activated Events shall comply in all material respects with all terms of the
applicable Conditional Use Permit ("CUP"), laws, liquor licenses, City Ordinances, and
written City policies in effect at the time of the Events. In addition, Activated Events
shall apply for any building permits including stage or tents, as needed.
10. Liquor Licensing. Activated Events covenants that it will require all
persons or entities selling or serving alcohol at the Venue during the Events to
represent and warrant to Activated Events that such persons or entities hold all licenses
and approvals required for such activity under federal, state, and local laws and
regulations. Activated Events shall apply and secure a one day ABC license per Event.
11. Upon request from Activated Events, the City may provide FAX transit
services on an existing line with a modified detour to the Event.
12. No less than thirty days prior to the date of the Event, a meeting will be
held with Activated Events and the City Manager's Office or designee to finalize the
details of the Event and discuss work City staff will be performing related to the event.
Furthermore, Activated Events shall provide the City with a traffic control plan for the
surrounding area and neighborhood.
13. Indemnification. To the furthest extent allowed by law, Activated Events
shall indemnify, hold harmless and defend the City and each of its officers, officials,
employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including but
not limited to personal injury, death at any time and property damage) incurred by City,
or Activated Events, and from any and all claims, demands and actions in law or equity
(including attorney's fees, litigation expenses, and costs to enforce this agreement),
arising or have arisen directly or indirectly out of the performance of this Agreement.
Activated Events' obligations under the preceding sentence shall apply regardless of
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whether City or any of its officers, officials, employees, agents, or volunteers are
passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures,
costs or damages caused solely by the active negligence, or caused by the willful
misconduct, of City or any of its officers, officials, employees, agents or volunteers.
If Activated Events should subcontract all or any portion of the work to be performed
under this Agreement, including, but not limited to, the operations and productions of
Events, Activated Events shall require each subcontractor to indemnify, hold harmless
and defend City and each of its officers, officials, employees, agents and authorized
volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
14. Insurance. Activated Events shall pay for and maintain in full force and
effect all policies of insurance required herein with an insurance company(ies) either (i)
admitted by the California Insurance Commissioner to do business in the State of
California and rated not less than "A-VII" in Best's Insurance Rating Guide, or (ii)
authorized by City's Risk Manager or his/her designee at any time in his/her sole
discretion. The following policies of insurance are required and shall maintain limits of
liability of not less than those amounts stated below, however, the insurance limits
available to the City of Fresno, its officers, officials, employees, agents and volunteers
as additional insureds, shall be the greater of the minimum limits specified herein or the
full limit of any insurance proceeds available to the named insured.
(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as
broad as the most current version of Insurance Services Office (ISO)
Commercial General Liability Coverage Form CG 00 01 providing liability
coverage arising out of your business operations. The Commercial General
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury', "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non-
owned equipment), all vendors, exhibitors, entertainers, products and
completed operations and contractual liability (including, without limitation,
indemnity obligations under the Agreement) with limits of liability of not less
than the following:
(i) $2,000,000 per occurrence for bodily injury and property
damage;
(ii) $2,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations;
and,
(iv) $4,000,000 general aggregate
ANY AMUSEMENT RIDES OR DEVICES MUST BE INSURED AND
SPECIFICALLY ENDORSEMENT INTO NOT EXCLUDED FROM
THE GENERAL LIABILITY INSURANCE AND IF
AMUSEMUSEMENT RIDE/DEVICE OWNER IS NOT THE EVENT
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HOLDER, THE RIDE/DEVICE OWNER WILL NEED TO ENTER
INTO A DIRECT SIDE AGREEMENT TO PROVIDE INDEMNITY
AND INSURANCE PROTECTION TO THE CITY OF FRESNO. ALL
AMUSTMENET RIDES AND/OR DEVICES MUST BE
PREAPPROVED 30 DAYS IN ADVANCE BY RISK MANAGEMENT
PRIOR TO USE.
LIQUOR LIABILITY INSURANCE limits of liability of not less than:
(i) $2,000,000 per occurrence;
(ii) $4,000,000 aggregate for bodily injury and property damage;
The responsibility for Liquor Liability Insurance may be assigned to
Activated Events' concessionaire/vendor. *If Activated Events intends to
sell alcohol either the Activated Events or concessionaire/vendor
providing the alcohol for sale must have a valid liquor sales license and
Liquor Liability Insurance covering sale of alcohol. If the liquor sales
license is obtained by concessionaire/vendor, that entity must enter into
a direct Side Agreement with the City of Fresno in order to provide
indemnity and insurance protection and provide the required insurance
documents as identified herein.
COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least
as broad as the most current version of ISO Business Auto Coverage form
CA 00 01 providing liability coverage arising out of the ownership, maintenance
or use of automobiles in the course of your business operations. The
Commercial Automobile policy shall be written on an occurrence form and shall
provide coverage for "all owned, hired, and non-owned automobiles or other
licensed vehicles (Code 1 - Any Auto) with limits of liability of not less than the
following:
(i) $1,000,000 per accident for bodily injury and property damage
WORKERS' COMPENSAION insurance as required by the State of California
and EMPLOYERS' LIABILITY (Where Applicable) insurance with limits of
$1,000,000 each accident,
$1,000,000 disease each employee
and $1,000,000 disease policy limit.
Umbrella or Excess Liability In the event Activated Events purchases an
Umbrella or Excess Liability insurance policy(ies) to meet the "Minimum Limits
of Insurance," this insurance policy(ies) shall "follow form" and afford no less
coverage than the primary insurance policy(ies). In addition, such Umbrella
or Excess insurance policy(ies) shall also apply on a primary and non-
contributory basis for the benefit of the CITY, its officers, officials, employees,
agents and volunteers.
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DEDUCTIBLES/SELF-INSURED RETENTIONS - Activated Events shall be
responsible for payment of any deductibles contained in any insurance policies
required herein and Activated Events shall also be responsible for payment of
any self-insured retentions. Any deductibles or self-insured retentions must be
declared on the Certificate of Insurance, and approved by, the City's Risk
Manager or his/her designee. At the option of the City's Risk Manager or
his/her designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retention as respects City, its officers, officials, employees, agents and
volunteers; or
(i) Activated Events shall provide a financial guarantee, satisfactory to
City's Risk Manager or his/her designee, guaranteeing payment of
losses and related investigations, claim administration and defense
expenses. At no time shall City be responsible for the payment of any
deductibles or self-insured retentions.
ENDORSEMENTS: All non-ISO endorsements amending policy coverage
shall be executed by a licensed and authorized agent or broker.
(ii) All policies of insurance required herein shall be endorsed to provide
that the coverage hall not be cancelled, non- renewed, reduced in
coverage or in limits except after thirty (30) calendar day written notice
by certified mail, return receipt requested, has been given to the City.
Activated Events is also responsible for providing written notice to the
City under the same terms and conditions. Upon issuance by the
insurer, broker, or agent of a notice of cancellation, non- renewal or
reduction in coverage or in limits, Activated Events shall furnish the
City with a new certificate and applicable endorsements for such
policy(ies). In the event any policy is due to expire during the
special event, Activated Events shall provide a new Certificate and
applicable endorsements evidencing renewal of such policy(ies)
not less than fifteen (15) calendar days prior to the expiration date
of the expiring policy.
(iii) The Commercial General, Commercial Automobile and Liquor Liability
(if applicable) insurance policies shall name the City of Fresno, its
officers, officials, agents, employees and volunteers as additional
insureds.
(iv) All policies of insurance shall be endorsed to be primary and non
contributory with respect to the City of Fresno, its officers, officials,
employees, agents and volunteers. Any insurance or self-insurance
maintained by the City of Fresno, its officers, officials, employees,
agents and volunteers shall be in excess of the Activated Events'
insurance and not contribute with it.
(v) Any Workers' Compensation insurance policy shall contain a waiver of
subrogation as to City of Fresno, its officers, officials, agents,
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employees and volunteers.
PROVIDING OF DOCUMENTS: Upon request of City, Activated Events shall
immediately furnish City with a complete copy of any insurance policy required
under this Agreement, including all pages to the policy requested including the
Declarations page, the Forms and Endorsements page, all Endorsements, with
said copy certified by the underwriter to be a true and correct copy of the
original policy. This requirement shall survive the expiration or termination of
the Permit.
MAINTENANCE OF COVERAGE: If at any time during the Special Event or
the Use of City Grounds and Facilities, Activated Events fails to maintain the
required insurance in full force and effect, the Permit providing permission for
such use shall be discontinued immediately until notice is received by City that
the required insurance has been restored to full force and effect and that the
premiums therefore have been paid for a period satisfactory to the City.
SUBCONTRACTORS: If Activated Events should subcontract all or any
portion of the work to be performed under this Agreement, Activated Events
shall require, at the discretion of the Risk Manager or designee,
subcontractor(s) to enter into a side agreement with the city to provide required
indemnification and insurance protection. Any required side agreement and
associated insurance documents for the subcontractor must be reviewed and
preapproved by the City Risk Manager or designee. If no side agreement is
required, Activated Events is solely responsible for ensuring that each
subcontractor indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and authorized volunteers as described
above in order to provide insurance protection in favor of City and each of its
officers, officials, employees, agents and authorized volunteers in accordance
with the terms of this section.
The fact that insurance is obtained by Activated Events shall not be deemed to release
or diminish the liability of Activated Events, including, without limitation, liability under
the indemnification provisions of this Agreement. The duty to indemnify City and its
officials, officers, employees, agents and volunteers shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Activated Events.
Approval or purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of Activated Events or any subcontractors.
Activated Events is required to cover all parts of the event. If any part of the event is
excluded by the insurance provided, Activated Events is required to purchase coverage
for these exposures. The exposures include but are not limited to; Liquor, Amusement
Devices, Vendors, Exhibitors, DJs, Live Performers and Bands.
15. Authority and Approval. All parties hereto have the requisite power and
authority to execute, deliver and perform this Agreement, and all actions of each such
party, necessary for such execution, delivery and performance have been duly taken.
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16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall for all purposes be deemed an original, and all such
counterparts shall together constitute but one document.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California applicable to contracts entered into
and wholly performed in the State of California by California residents. Venue for
purpose of filing any action for the enforcement or interpretation of this Agreement and
any rights and duties hereunder shall be Fresno County.
18. Attorney's Fees. If any legal action or proceeding arising out of or relating
to this Agreement is brought by either party to this Agreement, the prevailing party shall
be entitled to receive from the other party, in addition to any other relief that may be
granted, the reasonable attorney's fees, costs and expenses incurred in the action or
proceeding by the prevailing party.
19. Termination. This Agreement shall terminate immediately at the
scheduled conclusion of the last event. This Agreement shall be subject to termination
by a non-breaching party should the other party fail to comply with the terms of this
Agreement, and such failure is not cured within 15 days of notice from the non-
breaching party to the breaching party. Section 13 of this Agreement shall survive the
termination or expiration of this Agreement.
20. Amendment. This Agreement may not be amended or modified except in
writing signed by each of the parties to this Agreement. This Agreement shall be
construed as to its fair meaning and not strictly for or against either party. The headings
hereof are descriptive only and not to be construed in interpreting the provisions hereof.
21. Assignment. Activated Events may not assign its rights under this
Agreement without the written consent of City, which consent may be withheld at City's
sole and absolute discretion.
22. Prior Agreements. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior and
agreements and understandings concerning the subject matter hereof.
23. The City will make every effort to provide adequate lighting at the Venue
and in the parking lot to ensure the safety of participants, performers, and guests.
24. The City will maintain banner holders on the light poles inside the Venue.
[Signatures on following page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, to be effective as of the date first written above.
CITY OF FRESNO, ACTIVATED EVENTS, LLC,
a California municipal corporation a California limited liability corporation
na.�: Dcrusl7ctctl by:
fitr
B
BY �{.;:�r�r-..•..::-.-.:.. y• � E1iF8R5ii;D744F0.-
Georgeanne A. White Steve Thacher
City Manager Name:
Title: President
APPROVED AS TO FORM (If corporation or LLC, Board Chair, Pres.
ANDREW JANZ °Y�1'Do❑on Q�o�
lSigned by:
City Attorney Ste, '�,�
By: — E51F8A51s07;4Fo
OocuSlgned by:
Steve Thacher
"7 A""� 3/24/2023 Name:
B" ._ ORSF'SBF889011-z7
Hngeia ivi. Karst Date President
Deputy City Attorney Title:
(If corporation or LLC, CFO, Treasurer,
Secretary or Assistant Secretary.)
ATTEST:
TODD STERMER, CMC
City Clerk
Qocu81gned by:
Lt
am 6V V4/3/2023
By: {
Deputy Date
Exhibit A— Venue Map
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