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HomeMy WebLinkAboutCentral Valley Craft Beer - License Agreement - 09.15.23LICENSE AGREEMENT (Property at 815 Fulton Street) THIS LICENSE AGREEMENT (Agreement) is entered as of September 15, 2023 (Effective Date), between the City of Fresno, a municipal corporation, (CITY), and Central Valley Craft Beer, a limited liability corporation (LICENSEE). RECITALS A. LICENSEE is a Limited Liability Corporation that will be hosting an event promoted as Octoberfest (the Event). B. LICENSEE will utilize the vacant real property at 815 Fulton Street (APN 468-282-23T) that is owned by the CITY (the Licensed Property). C. CITY (collectively, LICENSOR) agrees to allow Licensee to use the Licensed Property on the terms and conditions herein. AGREEMENT 1. License to Use. In consideration of the covenants and conditions set forth in this Agreement, LICENSOR permits LICENSEE to use the Licensed Property for the sole purpose of the Event, subject to applicable local, state, and federal law, and this Agreement. 2. Term. The term of this License shall be the sooner to occur of the following: (a) Licensee's completion of the Event, (b) Licensee's vacation of the Licensed Property, or (c) September 17, 2023. 3. Surrender of Property and Relocation. Upon termination of this Agreement as provided herein, LICENSEE, at its sole expense, shall vacate and surrender the Licensed Property. In consideration of LICENSOR's agreement to enter this License, LICENSEE hereby releases and waives any and all rights it may now have, or hereafter obtain, to any "relocation assistance benefits" pursuant to the Federal Uniform Relocation Assistance Act (42 U.S.C. § 4601 et seq.), the California Relocation Assistance law (Cal. Gov. Code § 7260 et seq.), or any other statute that replaces or provides rights similar to such statutes, if LICENSOR requires LICENSEE to vacate and surrender the Licensed Property in such a way as to displace LICENSEE from the Licensed Property. LICENSEE, further, shall execute any other documentation of the release and waiver provided hereby as LICENSOR may reasonably require. 4. Limitations on Use. 4.1 LICENSEE's use of the Licensed Property shall be limited to use for the Event and use reasonably and incidentally related thereto. 4.2 LICENSEE shall not install any improvements, temporary or permanent. 4.3 LICENSEE is prohibited, without limitation, from increasing the permitted use on the Licensed Property. 4.4 LICENSEE shall comply with all applicable terms, conditions and requirements of the LICENSOR'S policies regarding use of public property and other LICENSOR, rules and regulations. LICENSEE shall comply with all applicable laws and regulations of the federal, state, county, local governments and all administrative agencies thereof which may have jurisdiction over LICENSEE's use of the Licensed Property. 4.5 LICENSEE shall not cause or permit any Hazardous Material to be used, stored, transported, generated, or disposed in or about the Licensed Property by LICENSEE or LICENSEE's agents, employees, contractors, LICENSEEs, or invitees. "Hazardous Material" means any hazardous, toxic, or infectious substance, material, or waste which is or becomes regulated by any local governmental entity, the State of California, or the United States Government under any law, regulation or ordinance regulating or controlling any Hazardous Material (the "Hazardous Materials Laws"), including, without limitation, any material, or substance which is (i) defined as a "hazardous waste," "extremely hazardous waste" or "restricted hazardous waste" under California Health and Safety Code §§ 25115, 25117 or 25122.7, or listed pursuant to California Health and Safety Code § 25140, (ii) defined as a "hazardous substance" under California Health and Safety Code § 25316, (iii) defined as a "hazardous material," "hazardous substance" or "hazardous waste" under California Health and Safety Code § 25501 (v) defined as a "regulated medical waste" under 40 C.F.R. § 259.10(a) or § 259.30, (v) petroleum or petroleum product, (vi) asbestos, (vii) designated as a "hazardous substance" pursuant to § 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317), (ix) defined as a "hazardous waste" pursuant to § 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq. (42 U.S.C. § 6903), or (x) defined as a "hazardous substance" pursuant to § 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601). 5. Indemnification and Insurance. LICENSEE agrees to the Insurance and Indemnification provisions attached hereto as Exhibit A and to the Insurance Requirements attached hereto as Exhibit B and incorporated herein. 6. Maintenance and Repair. LICENSEE, at LICENSEE's sole expense shall maintain the Licensed Property in a condition satisfactory to LICENSOR and in accordance with applicable governmental codes. LICENSEE shall be responsible for any citations issued by any agency having jurisdiction as a result of LICENSEE's failure to comply with any applicable law, regulation, ordinance, rule, or order. 7. Taxes. Nothing contained in this Agreement shall be construed to exempt the LICENSEE from any tax levy or assessment which is or may be hereafter lawfully imposed. Notice is hereby given pursuant to Revenue and Tax Code Article 107.6 that this License may create a property interest subject to property taxation and may subject LICENSEE to the payment of property taxes levied on such interest. 8. Default; Termination. In the event that LICENSEE fails to perform any obligation under this Agreement, LICENSEE shall be in default hereof, and LICENSEE 2 shall pay all costs and expenses incurred by LICENSOR in obtaining performance of such obligations including, without limitation, costs of suit and reasonable attorney's fees. If LICENSEE uses the Licensed Property for any purpose not expressly authorized by this Agreement or fails to act strictly in accordance with the terms and conditions of this Agreement, LICENSEE shall be in default hereof. If LICENSOR determines that any default by LICENSEE does or has the potential to cause a danger to the Licensed Property, LICENSOR may immediately and without prior notice to LICENSEE terminate this Agreement and prevent LICENSEE from using or remaining upon the Licensed Property, with or without process of law. 9. Removal of Improvements at Termination. Upon termination of this Agreement for any reason, LICENSEE, at its sole expense, shall vacate and surrender the Licensed Property and remove all LICENSEE property in or upon the Licensed Property and surrender the Licensed Property to the LICENSOR in a condition reasonably satisfactory to LICENSOR. Should LICENSEE fail or refuse to comply with the terms of this section, LICENSOR, at its option, may perform such work, and LICENSEE shall reimburse LICENSOR for all costs and damages that the LICENSOR incurs. 10. Service of Notice. Except as otherwise provided in this Agreement, any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by certified or registered mail, and shall be deemed sufficiently given if delivered or addressed to LICENSEE at the address listed below the LICENSEE's signature, or to CITY at 2600 Fresno Street, Fresno, California 93721, Attention: City Manager, with a copy to CITY at 2600 Fresno Street, Fresno, CA 93721, Attention: City Attorney. Mailed notices shall be deemed given upon actual receipt at the address required, or forty-eight hours following deposit in the mail, postage prepaid, whichever first occurs. Either party may by notice to the other specify a different address for notice purposes. 11. Laws, Venues, and Attorneys' Fees. This Agreement shall be interpreted in accordance with the laws of the State of California. If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Fresno, State of California. In the event of any claim, legal action or proceeding between the parties arising under or concerning this License, the prevailing party shall be entitled to reasonable attorneys' fees and expenses as part of the judgment resulting therefrom. 12. Acceptance of Licensed Property. LICENSEE acknowledges that it presently occupies the Licensed Property and is familiar with the present physical condition of the Licensed Property. LICENSEE accepts the Licensed Property in its present physical "AS -IS" condition. By signing this License, LICENSEE represents and warrants that LICENSEE has independently inspected the Licensed Property and the area immediately surrounding and made all investigations, tests, and observations necessary to satisfy LICENSEE as to the condition of the Licensed Property, zoning and land use laws, regulations, and ordinances affecting the Licensed Property, and all of the conditions, restrictions, encumbrances, and other matters of record relating to the Licensed Property. LICENSEE agrees that LICENSEE is relying solely on LICENSEE's independent inspection and that LICENSOR has made no warranty or representation 3 with regard to the Licensed Property. LICENSOR shall not be responsible for any latent defect or change in condition in the Licensed Property and LICENSEE's obligations under this License shall not be diminished on account of any defect in the Licensed Property, any change of condition, or any damages occurring on the Licensed Property. In case of the eviction of LICENSEE by anyone owning or claiming title to or any interest in the Licensed Property, LICENSOR shall not be liable to LICENSEE for any damage of any nature whatsoever or to refund any moneys paid hereunder. 13. Waiver and Release. LICENSEE hereby releases LICENSOR from all future claims, actions, or demands that LICENSEE may have or may hereinafter have, known and unknown, in any way relating to the quality, fitness, or condition of the Licensed Property, and LICENSEE specifically waives all rights under California Civil Code section 1542, which provides 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." 14. Attorneys' Fees. If legal action is required to enforce any of the rights and obligations described herein, the party prevailing in such action shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as its attorney's fees and costs. 15. Counterparts. This License Agreement may be executed in counterparts, each of which shall be deemed an original. [SIGNATURE PAGE TO FOLLOW] 4 IN WITNESS WHEREOF, the parties have signed below, effective as of the Effective Date, by their duly authorized representatives. CITY OF FRESNO, A California municipal corpo ation By. Georg a ne A. White, City Manager APPROVED AS TO FORM: ANDREW JANZ City Attorney PaAOMCOA)By: Uf Tracy N. rvanian, Date Qr Supervisi Deputy City Attorney CENTRAL VALLEY CRAFT BEER, a limited liability corporation By: weY /Ar ( c Michael Cruz, President Title: President ATTEST: TODD STERMER, CMC City Clerk By: &Z�OL(,5 ? Deputy Addresses: CITY: City of Fresno Attention: Melissa Almaguer Parking Manager 2600 Fresno Street Fresno, CA 93721 Phone: (559) 621-8796 E-mail. melissa.almaguer@fresno.gov (If corporation or LLC., Board Chair, Pres. or Vice Pres.) LICENSEE: Central Valley Craft Beer Attention: Madison Beard Event Coordinator 745 Fulton Street Fresno, CA Phone: (209) E-mail: mbeard@tioga-sequoia.com Attachments: 1. Exhibit A — Indemnification and Insurance Provisions 2. Exhibit B - Insurance Requirements 5 Exhibit A INDEMNIFICATION AND INSURANCE PROVISIONS License Agreement between the The City of Fresno and Central Valley Craft Beer Indemnification. To the furthest extent allowed by law, Licensee shall indemnify, hold harmless and defend LICENSOR and each of their 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 LICENSOR, Licensee or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Licensee's obligations under the preceding sentence shall apply regardless of whether LICENSOR or any of their officers, officials, employees, agents, or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of LICENSOR or any of their officers, officials, employees, agents, or volunteers. If Licensee should subcontract and/or contract all or any portion of the use of the property under this Agreement, Licensee shall require each subcontractor to indemnify, hold harmless and defend LICENSOR and each of their officers, officials, employees, agents, and volunteers in accordance with the terms of the preceding paragraph. This section shall survive termination or expiration of this Agreement. 2. Insurance. (a) Throughout the life of this Agreement, LICENSEE shall pay for and maintain in full force and effect all insurance as required in Exhibit B or as may be authorized, and any additional insurance as may be required, in writing by CITY'S Risk Manager or designee at any time and in its sole discretion. (b) If at any time during the life of the Agreement or any extension, LICENSEE fail to maintain any required insurance in full force and effect, all services and work under this License Agreement 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 CITY. Any failure to maintain the required insurance shall be sufficient cause for LICENSOR to terminate this License Agreement. No action taken by LICENSOR pursuant to this section shall in any way relieve LICENSEE of its responsibilities under this License Agreement. The phrase "fail to maintain any required insurance" shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent. (c) 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 indemnity provisions of this Agreement. The duty to indemnify LICENSOR 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, its principals, officers, agents, employees, persons under the supervision of LICENSEE, vendors, suppliers, invitees, consultants, sub -consultants, subcontractors, or anyone employed directly or indirectly by any of them. (d) Upon request of CITY, LICENSEE shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. 7 Exhibit B INSURANCE REQUIREMENTS License Agreement between the The City of Fresno and Central Valley Craft Beer Throughout the life of this Agreement, 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 designee at any time in its 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 and each of their 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. 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. Example of acceptable endorsements would be CG 20 12 04 13 or CG 20 26 04 13 along with CG 20 01 04 13. 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) 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) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Contract. ANY AMUSEMENT RIDES OR DEVICES MUST BE INSURED AND SPECIFICALLY ENDORSEMENT INTO THE GENERAL LIABILITY INSURANCE AND IF AMUSEMUSEMENT RIDE/DEVICE OWNER IS NOT THE EVENT HOLDER, THE RIDE/DEVICE OWNER WILL NEED TO ENTER INTO A 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: If alcoholic beverages are to be sold*, served or furnished, Liquor Liability coverage is required with limits of liability of not less than: 0 (i) $1,000,000 per occurrence; (ii) $2,000,000 aggregate for bodily injury and property damage; The responsibility for Liquor Liability Insurance may be assigned to Licensee's 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 indemnification agreement with the City of Fresno and the City of Fresno in order to secure 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. (Only required if Licensee has employees.) 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 of Fresno and each of their 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 retentions. Any deductibles or self -insured retentions must be declared to on the Certificate of Insurance, and approved by, the City's Risk Manager or designee. At the option of the City's Risk Manager or designee, either: (i) The insurer shall reduce or eliminate such deductibles or self -insured retention as respects to the City of Fresno and each of their officers, officials, employees, agents, and; or (ii) Licensee shall provide a financial guarantee, satisfactory to City's Risk Manager or 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. 9 ENDORSEMENTS: All non -ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Licensee shall have furnished City with the certificate(s) and applicable endorsements for ALL required insurance fourteen (14) days prior to the Use of City Grounds and Facilities. (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 and each of their officers, officials, employees, agents, and volunteers. (iii) All policies of insurance shall be endorsed to be primary with respect to the City of Fresno and each of their officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City of Fresno and each of their officers, officials, employees, agents, and volunteers shall be excess of the Licensee's insurance and not contribute with it. (iv) Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to the City of Fresno and each of their officers, officials, employees, agents, 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 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 Use of City Grounds and Facilities, Licensee fails to maintain the required insurance in full force and effect, the Use of City Grounds and Facilities 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 subcontracts and/or contracts any or all of the of the use of the property under this Agreement, LICENSEE shall require its subcontractors maintain insurance coverage required under this Exhibit B. 10