HomeMy WebLinkAboutPeyton's Project - Agreement - 4-13-2023L/UUUC)1y1I CI IVCIVp1Z IL/. O/CVUUMJ-D/Irk-%,U
LICENSE AGREEMENT
SPECIAL EVENT— AT WOODWARD PARK
(CITY OF FRESNO — PEYTON'S PROJECT)
THIS LICENSE AGREEMENT (this "Agreement") is dated this 13t" 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 Peyton's Project,
("LICENSEE"), a California Nonprofit Corporation.
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. LICENSEE shall, as an independent contractor, provide alcoholic beverage
sales at Woodward Park ("Location") during the Event, as defined herein. LICENSEE shall
provide such 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 LICENSEE hold itself out as, act as, or be the agent
of, City, without the City's express written authority to do so.
2. Event: April 22, 2023 — Activated Events ("Event Holder") Boots in the Park
event at Woodward Park.
3. Other conditions: ACE Parking is under contractual agreement with the City
to collect an entry fee on all vehicles entering the Location, per the City of Fresno Master
Fee Schedule. The licensed Event Holder will be provided with one time vehicle entry
passes to allow unpaid vehicle entry into the Park for Staff, volunteers and vendors. All
other vehicle entries not addressed above will be required to pay the per vehicle entry fee.
4. LICENSEE shall comply 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 Event.
5. Liquor Licensing. LICENSEE covenants, and shall ensure, that all persons or
entities selling or serving alcohol at the Location during the Event shall hold all licenses and
approvals required for such activity under federal, state, and local laws and regulations.
6. Indemnification. LICENSEE 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 LICENSEE, 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. LICENSEE' obligations under the preceding sentence shall apply regardless of
whether City or any of its officers, officials, employees, agents, or volunteers are passively
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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 LICENSEE 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,
LICENSEE 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.
7. Insurance. LICENSEE 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) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $1,000,000 aggregate for products and completed operations;
and,
(iv) $2,000,000 general aggregate
ANY AMUSEMENT RIDES OR DEVICES MUST BE INSURED AND
SPECIFICALLY ENDORSEMENT INTO NOT EXCLUDED FROM THE
GENERAL LIABILITY INSURANCE AND IF AMUSEMENT
RIDE/DEVICE OWNER IS NOT THE EVENT HOLDER, THE
RIDE/DEVICE OWNER WILL NEED TO ENTER INTO A DIRECT SIDE
AGREEMENT TO PROVIDE INDEMNITY AND INSURANCE
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PROTECTION TO THE CITY OF FRESNO. ALL AMUSEMENT 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
LICENSEE' concessionaire/vendor. *If LICENSEE intends to sell alcohol
either the LICENSEE 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 a
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' COMPENSATION 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 LICENSEE 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.
DEDUCTIBLES/SELF-INSURED RETENTIONS - LICENSEE shall be responsible
for payment of any deductibles contained in any insurance policies required herein
and LICENSEE shall also be responsible for payment of any self -insured
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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
(ii) LICENSEE 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
the 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.
(i) 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. LICENSEE 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, LICENSEE
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, LICENSEE 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.
(ii) 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.
(iii) 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 LICENSEE' insurance and not
contribute with it.
(iv) Any Workers' Compensation insurance policy shall contain a waiver of
subrogation as to City of Fresno, its officers, officials, agents, employees
and volunteers.
PROVIDING OF DOCUMENTS: Upon request of City, LICENSEE 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
it
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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, LICENSEE 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 LICENSEE should subcontract all or any portion of the
work to be performed under this Agreement, LICENSEE 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, LICENSEE 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 LICENSEE shall not be deemed to release or diminish
the liability of LICENSEE, including, without limitation, liability under the indemnification
provisions of this Agreement. The duty to indemnify the 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 LICENSEE. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the liability of
LICENSEE or any subcontractors.
The LICENSEE is required to cover all parts of the event. If any part of the event is excluded
by the insurance provided, LICENSEE 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.
8. 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.
9. 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.
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10. 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.
11. Termination. This Agreement shall terminate immediately at the scheduled
conclusion of the Event. This Agreement shall also be immediately terminated should
LICENSEE fail to comply with the terms of this Agreement, including the terms of the CUP.
Sections 10 and 11 of this Agreement shall survive the termination or expiration of this
Agreement.
12. 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.
13. Assignment. LICENSEE 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.
14. 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.
[Signatures follow on next page.]
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IN WITNESS WHEREOF, the parties have executed this AGREEMENT to be effective as
of the date first above written.
CITY OF FRESNO,
a California municipal corporation
DaeuSlgned by:
By: �"'
Georgeanne A. White
City Manager
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
DocuSigned by:
By:
�' M. kl_t4/14/2023
Angela M. ? Karst Date
Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
❑ocuSigned by,
By: 'r IIn,A, q6W 4/17/2023
Deputy Date
PEYTON'S PROJECT,
a California Nonprofit Corporation
Bonnie Marquez
By:
Name: 6e1ALWt,
President
Title:
Name:
Title:
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
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