Mayor
Donald Williams
Vice Mayor
Irais Lopez-Ortega
Councilmembers
Lisa M. Gift
Scott Cooper
Kevin Eisenberg
AGENDA
City Council
Tuesday, October 1, 2024 - 6:00 PM
1307 Washington St., Calistoga
Hybrid
Below is information on how the public may observe and participate in the meeting. The City recognizes that not all residents have the same ways to stay engaged, so several alternatives are offered.
Please participate in the meeting by observing or listening to the meeting in one of the following ways:
1. Watch on your TV – Napa Valley TV Channel 28 (call your cable provider to ensure you have a City of Calistoga coded cable box)
2. Listen or participate via your phone – dial 1-669-900-6833, enter webinar ID: 8543 545 6006, password: 123201
3. Watch or participate online via Zoom - click this link and enter password: 123201
4. Watch online via YouTube Live at youtube.com/cityofcalistoga COMMENT ON THIS MATTER DURING THE MEETING: Please participate in the meeting by providing public comment on any item on the agenda or any item of municipal concern. To comment during a virtual meeting (Zoom), click the "Raise Your Hand" button to request to speak when Public Comment is being taken on the Agenda item. You will be unmuted when it is your turn to make your comment for up to 3 minutes. After allotted time, you will be re-muted.
WRITTEN COMMENTS: Alternatively, you may provide public comment on any item on the agenda or any item of municipal concern via email. Please submit your comment, limited to 350 words or less, via email to [email protected]. Written public comments submitted by email should clearly indicate the Agenda Item No. or specify “Oral Communications” in the Subject Line for items not on the agenda and are requested to include the submitter’s full name. Comments received by 2:00 p.m. on the day of the meeting will be posted online with the agenda packet and included in the record but will not be read aloud. Comments received after 2:00 p.m. will be made part of the written record but will not be read verbally at the meeting. Note:
The methods of observing or listening to the meeting or providing public comments may be altered or the meeting may be cancelled, if needed, due to certain technical disruptions.
Page
1. CALL TO ORDER/ROLL CALL/PLEDGE OF ALLEGIANCE AND OPTIONAL
PATRIOTIC ACTIVITY
2. ORAL COMMUNICATION ON CONSENT ITEMS OR NON-AGENDA ITEMS This time is set aside to receive comments from the public regarding matters on the Consent Calendar or matters of municipal concern not on the agenda. Pursuant to Government Code section 54954.3 (the Brown Act), however, the Council cannot consider any issues or take action on any requests not on the agenda during this comment period. Speakers are encouraged to limit their comments to 3 minutes maximum so that all speakers have an opportunity to address the City Council.
3. CITY MANAGER’S REPORT
4. PROCLAMATIONS/PRESENTATIONS/ AWARDS
4.1. Proclaiming October as Domestic Violence & Sexual Assault Awareness Month
Recommended Action: Consider adopting a proclamation by request from NEWS Napa Valley
Staff Report - Proclaiming October Domestic Violence Awareness Month - Pdf
5 - 6
4.2. PG&E Presentation on Calistoga Microgrid Service Area Presentation Slides
7 - 9
5. CONSENT CALENDAR
5.1. Adopting the Minutes of the September 10, 2024.
Recommended Action: Consider Adopting the Minutes
Staff Report - Adoption of Minutes - Pdf
10 - 15
5.2. Purchase Order Award to T&S Intermodal Maintenance, Inc. for the Rancho De Lift Station Improvement Project
Recommended Action: Consider Adopting the Resolution
Staff Report - Purchase Order Award to T&S Intermodal Maintenance, Inc. for the Rancho De Lift Station Improvement Project - Pdf 16 - 31
5.3. Consider an Ordinance of the City of Calistoga Amending Municipal Code Chapter 5.12 Mobile Food Vendors, Section 5.12.010 E. 2. regarding where mobile vending vehicles may conduct vending.
Recommended Action: Adopt Ordinance Amending Municipal Code Chapter 5.12 Mobile Food Vendors
Staff Report - Second Reading - Amendment to Calistoga Municipal Code Chapter 5.12 Mobile Food Vendors - Pdf
32 - 36
5.4. Interim License Agreements for Use of the Fairgrounds Property by Four Current Tenants.
Recommended Action:
Consider adopting a Resolution to enter into separate Interim License Agreements between the City of Calistoga and four current fairgrounds tenants with expired agreements.
Staff Report - Interim Fairground License Agreements with Calistoga Arts Center, Calistoga Cares! Food Bank, Calistoga Vines Lessee, Inc., and PG&E - Pdf
37 - 117
5.5. Second Reading - Amendment to Calistoga Municipal Code Chapter 8 Health and Safety: adding Tobacco Retail Licensing Ordinance, Section
8.29 Recommended Action: Adopt Tobacco Retail Licensing Ordinance, Calistoga Municipal Code Section 8.29
Staff Report - Second Reading - Tobacco Retail Licensing Ordinance, Section 8.29.010 - Pdf
118 - 152
5.6. Consider Adopting a Resolution Appointing Councilmember Eisenberg as Liaison to the Green Committee
Recommended Action: Consider Adopting the Resolution
153 - 155
Staff Report - Appointing a Councilmember Liaison to the Green Committee - Pdf
6. PUBLIC HEARING
7. GENERAL GOVERNMENT
7.1. Consider adopting a Resolution authorizing the City Manager to execute a Landscape Maintenance Services Agreement with BrightView Landscape Services, Inc. for fairgrounds landscape maintenance services.
Recommended Action: Consider Adopting Resolution and authorize City Manager to Enter into Agreement for a period of five years commencing on December 1, 2024.
Staff Report - Fairgrounds Landscape Maintenance Professional Services Agreement - Pdf
156 - 175
7.2. Consider an Ordinance of the City of Calistoga amending Chapter 5.08 of the City of Calistoga Municipal Code regarding bingo to reflect the full authority granted by the State of California Legislature.
Recommended Action: Move to introduce and waive further reading of Ordinance Number 772 amending Chapter 5.08 of the City of Calistoga Municipal Code.
Staff Report - First reading of Amendment to Chapter 5.08 of the Calistoga Municipal Code. - Pdf
176 - 182
8. COUNCIL REPORTS
9. ADJOURNMENT
NOTICE: If you challenge a city’s zoning, planning, or other decision in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to, the public hearing. Judicial review of any City administrative decision may be had only if a petition is filed with the court not later than the 90th day following the date upon which the decision becomes final. Judicial review of environmental determinations may be subject to a shorter time period for Litigation, in certain cases 30 days following the date of final decision.
Pursuant to GC §54957.5: any writings/documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection on the City website at www.ci.calistoga.ca.us.
SUPPLEMENTAL MATERIAL RECEIVED AFTER THE POSTING OF THE AGENDA:
Any supplemental writings or documents distributed to a majority of the City Council regarding any item on this Agenda, after the posting of the Agenda, such writings or documents will be made available on the City’s website and will be available for public review in the City Clerk’s Office located at 1232 Washington Street, Calistoga, California, during normal business hours and by appointment.
AMERICANS WITH DISABILITIES ACT: The City can provide special assistance for persons with disabilities to participate in public meetings. To make a request for disability-related modification or accommodation please contact the City Clerk at [email protected] or (707) 942-2807. If you need assistance or accommodation, please provide notice at least 48 hours prior to the meeting. For TTY/ Speech-to-Speech users, dial 7-1-1 for the California Relay Service, offering free text-to-speech, speech-to-speech, and Spanish language services 24 hours a day, 7 days a week.
ACTA DE AMERICANOS CON DISCAPACIDADES Se les pide por favor que avise con 48 horas de anticipacion cuando necesita hacer un pedido de assistencia. Esto nos da suficiente tiempo antes de la junta para que la ciudad tome medidas razonables.
POSTING: I declare a copy of this agenda was posted at City Hall, 1232 Washington Street, Calistoga, among other locations in the city limits of Calistoga, on September 24, 2024, by 4:30 p.m.
Yudiana Galvan, City Clerk
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Yudiana Galvan, City Clerk
Meeting: City Council - Oct 01 2024
Subject: Proclaiming October Domestic Violence Awareness Month AGENDA TITLE:
Proclaiming October as Domestic Violence & Sexual Assault Awareness Month RECOMMENDATION:
Consider adopting a proclamation by request from NEWS Napa Valley BACKGROUND:
In FY 2023/2024, NEWS assisted over 1,700 survivors who were experiencing domestic violence and sexual assault, and served 38 clients from the City of Calistoga, including children. The NEWS Help Line received 31 calls for assistance from Calistoga residents. Clients from Calistoga received emergency assistance and crisis intervention services including food, clothing and financial assistance; court advocacy and accompaniment, including help preparing and filing restraining orders; and support from our Domestic Violence Response Team for after-hours crisis response.
Every year since 1989, the United States Congress has proclaimed October as Domestic Violence Awareness Month, renewing our Country’s commitment to standing against domestic violence and meeting the needs of survivors.
FINANCIAL IMPACT:
None
CEQA STATUS:
No Impact
ATTACHMENT(S):
Proclamation - October
APPROVAL(S):
Connie Cardenas, Admin. Services Director Approved - Sep 24 2024 Laura Snideman, City Manager Approved - Sep 24 2024
Yudiana Galvan, City Clerk Approved - Sep 24 2024
Item #4.1.
CTTY QlF CAlLllSTQGA
Proclaiming October as
Domestic Violence and Sexual Assault Awareness Month
WHEREAS, NEWS, Domestic Violence and Sexual Abuse Services is commemorating 43 years of service to survivors of domestic violence and sexual assault in Napa County, having opened the first con?dential safe house on October 5th1981 and began providing safety to those escaping abuse; and WHEREAS, Domestic Violence Awareness Month is about raising awareness and uplifting the needs, voices and experiences of survivors; and WHEREAS, Sexual Assault Awareness is about promoting safety, respect and equality, and standing up and speaking out against harmful cultural norms and attitudes that allow sexual violence to persist; and
WHEREAS, domestic Violence is a public health concern that impacts the well—beingand success of individual community members, as well as the community as a whole; and
WHEREAS, by observing these Awareness Months we show that our community is committed to supporting survivors and working toward the prevention of domestic violence and sexual assault among future generations; and NOW, THEREFORE LET IT BE RESOLVED THAT the City Council of the City of Calistoga, does hereby proclaim October 2024 as “Domestic Violence and Sexual Assault Awareness Month.
Signed and Sealed this 1" Day ofOctober, in the year Two Thousand Twenty Four Item #4.1.
Calistoga City Council
Meeting
October 1, 2024
Item #4.2.
The permanent microgrid utilizing hybrid Hydrogen Fuel Cell and Battery Energy Storage System (BESS) will be a cleaner alternative to the existing diesel generator. It will mitigate customer impact due to Public Safety Power Shutoffs (PSPS events).
Approximate microgrid service area
Microgrid Boundary
High Fire Risk Area
1. Due to an update in the HFRA boundary, a section of
overhead line off Mora Avenue is no longer included
in the Clean Calistoga Microgrid.
2. West of the river is now included in the Clean
Calistoga Microgrid.
3. Portion of Greenwood Avenue is now included in the
Clean Calistoga Microgrid.
2 1 3
The Clean Calistoga Microgrid Service Area
Item #4.2.
Some of the measures included in this presentation are contemplated as additional precautionary measures intended to further reduce the risk of wildfires. 3 Partnering to Reduce PSPS Impacts
Effective partnership is essential to design and construct microgrids to make our system more resilient for our customers and communities.
Energy Vault’s Role
PG&E’s Role
Deploy the Generation Facilities: Develop, design
and construct the MG generation system
according to PG&E’s design requirements
Own and Operate the Microgrid: Operate
the generation system according to pre-defined
parameters
Fund the Microgrid: Run a solicitation and contract
for services
Plan the Distribution System: Conduct a MG
islanding study to ensure the MG will be safe to
operate in islanding mode
Operate the Distribution System: Coordinate the
transition to and from islanding mode
Calistoga's Role
Provide Community Input: Be the unifying voice
for community preferences
Partner with EV in Project Development: Provide
input, execute agreements, etc.
Support Public Education/Awareness: Inform
constituents about MG features/considerations
Item #4.2.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Yudiana Galvan, City Clerk
Meeting: City Council - Oct 01 2024
Subject: Adoption of Minutes
AGENDA TITLE:
Adopting the Minutes of the September 10, 2024.
RECOMMENDATION:
Consider Adopting the Minutes
BACKGROUND:
Adopting the minutes of the September 10, 2024.
FINANCIAL IMPACT:
None
CEQA STATUS:
No Impact
ATTACHMENT(S):
9.10.24 Minutes
APPROVAL(S):
Connie Cardenas, Admin. Services Director Approved - Sep 16 2024 Laura Snideman, City Manager Approved - Sep 20 2024
Yudiana Galvan, City Clerk Approved - Sep 20 2024
Item #5.1.
MINUTES
CALISTOGA CITY COUNCIL
REGULAR MEETING
Tuesday, September 10, 2024 - 6:00 PM
1307 Washington Street, Calistoga CA 94515
1. Call to Order/Roll Call/Pledge of Allegiance and Optional Patriotic Activity Mayor Williams called the regular session to order at 6:00 p.m.
Present: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg, Cooper and Gift
Absent:
2. REPORT FROM CLOSED SESSIONS - NONE
3. ORAL COMMUNICATION ON CONSENT ITEMS OR NON-AGENDA ITEMS Public Comment was made by Maryanne Salinger and Kerri Abreau.
4. CITY MANAGER’S REPORT
City Manager Snideman introduced newly hired Deputy Finance Director Hide Miyamoto and welcomed Sheli Wright on her first week as our Fairgrounds Revitalization Director. She reminded the community about the upcoming annual hydrant flushing. Snideman announced that the Police Chief recruitment process has begun and there will be a forum held on September 17th at 6:30 p.m. at the Community Center with the recruiter and all public input is welcome. Vice Mayor Lopez-Ortega asked for an update regarding the ped vs patrol vehicle incident and the Officer's status. Snideman reported that the investigation by CHP is still ongoing and the Officer is back to work per the standard protocol.
5. PROCLAMATIONS/PRESENTATIONS/ AWARDS
5.1. Adoption of a Proclamation - Proclaiming September National Hispanic Heritage Month and Raising the Mexican Flag
Vice Mayor Lopez-Ortega presented the proclamation to Julie Garcia from Casa de la Cultura and Grupo Adelante
A motion was made by Mayor Williams to adopt the proclamation, seconded by Councilmember Eisenberg.
AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg, Cooper and Gift
NOES:
ABSENT:
ABSTAIN:
Item #5.1.
City Council Minutes
September 10, 2024
6. CONSENT CALENDAR
A motion was made by Councilmember Eisenberg to adopt the consent calendar as presented except for items 6.1, 6.3 and 6.7, seconded by Councilmember Cooper AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg, Cooper and Gift
NOES:
ABSENT:
ABSTAIN:
6.1. Adoption of a Proclamation - Proclaiming September Suicide Prevention Awareness Month.
This item was pulled for discussion by Councilmember Gift who asked clarifying questions regarding the placement of this item on the agenda.
A motion was made by Councilmember Gift to adopt the proclamation, seconded by Councilmember Eisenberg.
AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg, Cooper and Gift
NOES:
ABSENT:
ABSTAIN:
6.2. Adopted - Adopting the Minutes of August 20, 2024
6.3. Adoption of Resolution No. 2024-69 - Authorizing a professional services agreement with UpValley Family Centers to provide senior, juvenile diversion, immigration, and community connections services in an amount not to exceed a total of $390,000 over a three-year term.
This item was pulled for discussion by Mayor Williams who suggested including a condition to this item requiring annual reporting by UVFC regarding the services provided.
Program Manager Marcela Rodriguez agreed to the reporting condition and had no reservations.
A motion was made by Mayor Williams to adopt the resolution and include an annual reporting requirement, seconded by Councilmember Eisenberg.
Item #5.1.
City Council Minutes
September 10, 2024
AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg, Cooper and Gift
NOES:
ABSENT:
ABSTAIN:
6.4. Adoption of Resolution No. 2024-70 - Authorizing a two-year intergovernmental services agreement for housing services from the Housing Authority of the City of Napa.
6.5. Adoption of Resolution No. 2024-71 - Authorizing the submission of an application to the Metropolitan Transportation Commission (MTC) for the allocation of fiscal year 2024/25 Transportation Development Act Article 3 Pedestrian/Bicycle project funding in the amount of $150,000 for the South Oak Street Pedestrian Bridge over the Napa River and authorizing the Public Works Director to execute all grant documents and agreements on behalf of the City for the project.
6.6. Adoption of Resolution No. 2024-72 - Authorizing Amendment No. 1 to Contract No. 947 with Marin IT to provide services to maintain and update the City's information technology infrastructure.
6.7. Approved - Green Committee requests adding an anti-idling education program to their Workplan for Fiscal Year 2024-2025 Including Flyer Distribution with City Logo to be distributed with the water bills.
This item was pulled for discussion by Vice Mayor Lopez-Ortega who asked clarifying questions. Millie Pease of the Green Committee presented.
A motion was made by Vice Mayor Lopez-Ortega to approve the program, the flyer translation and the distribution to accompany the water bills, seconded by Mayor Williams.
AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg, Cooper and Gift
NOES:
ABSENT:
ABSTAIN:
6.8. Adoption of Resolution 2024-73 - Approving the Final Map and authorizing Affordable Housing Agreement and Fee Credit and Reimbursement Agreement for Silverado Terrace located at 1408, 1412 and 1506 Grant Street.
Item #5.1.
City Council Minutes
September 10, 2024
7. PUBLIC HEARING
7.1. Approved for a Second Reading - A Tobacco Retail Licensing (TRL) Ordinance, adding section 8.29.010 to Calistoga Municipal Code Chapter 8.28 Health and Safety:
Smoking in Public Places and Sale of Tobacco Products.
This item was presented by Lt. Charles and discussed by the Council.
There was public comment by Samantha Arlen.
A motion was made by Mayor Williams to adopt the ordinance, seconded by Vice Mayor Lopez-Ortega.
AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg, Cooper and Gift
NOES:
ABSENT:
ABSTAIN:
8. GENERAL GOVERNMENT
8.1. Approved for a Second Reading - Amending Municipal Code Chapter 5.12 Mobile Food Vendors, Section 5.12.010 E. 2. regarding where mobile vending vehicles may conduct vending.
This item was presented by Planning Director Greg Desmond and discussed by the Council.
There was public comment by Flavio Fernandez and Wyatt Ferris.
A motion was made by Mayor Williams to adopt the ordinance, seconded by Councilmember Cooper
AYES: Mayor Williams, Vice Mayor Lopez-Ortega and Councilmembers Eisenberg, Cooper and Gift
NOES:
ABSENT:
ABSTAIN:
8.2. Evaluating the current eligibility requirements and application questions for the Community Enrichment Grant Program
There was public comment by Millie Pease.
This item was presented by City Clerk Galvan and discussed by the Council. Mayor Item #5.1.
City Council Minutes
September 10, 2024
Williams asked for opinions about diverting the funds to low-income aid for water bills or changing the frequency of the awarding.
After Council discussion, it was agreed that there would not be any changes to the current eligibility requirements of the Community Enrichment Grants.
9. COUNCIL REPORTS
Vice Mayor Lopez-Ortega is happy to report that she and staff attended a Blue Zones event where the City received an award for being a healthy community. She also attended the Harvest Table event, it was a successful event and she ran into people who came all the way from Mexico City specifically to attend. Lopez-Ortega stated she would soon be asking for Council support in placing a request from Hearts and Hands on the agenda regarding the lease of a building at the Fairgrounds. Mayor Williams and Councilmembers Cooper and Gift were not in support of adding this item to the agenda yet as there are still requests coming in and the condition of the building is a concern.
Councilmember Eisenberg attended a Climate Action Committee meeting, they are still working on the regional plan which he expects will come before the Council soon. Eisenberg continues to ride on the Vine Trial, it has been busy and it is becoming a great addition to our community.
10. ADJOURNMENT
Mayor Williams adjourned the meeting, at 7:43 p.m.
Respectfully Submitted
Prepared by: Approved By:
Yudiana Galvan, City
Clerk
Donald Williams,
Mayor
Item #5.1.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Derek Rayner, Public Works Director/City Engineer Meeting: City Council - Oct 01 2024
Subject: Purchase Order Award to T&S Intermodal Maintenance, Inc. for the Rancho De Lift Station Improvement Project
AGENDA TITLE:
Purchase Order Award to T&S Intermodal Maintenance, Inc. for the Rancho De Lift Station Improvement Project
RECOMMENDATION:
Consider Adopting the Resolution
BACKGROUND:
The city owns and maintains four sewage lift stations that pump raw sewage to a higher elevation sewer line where it is gravity fed to the Dunaweal Wastewater Treatment Plant. One of these four stations, Rancho De Lift Station has a 20+yr old generator that needs to be replaced.
The Rancho De lift station located at 2412 Foothill Boulevard in the Rancho De Mobile Home Park pumps raw sewerage in a pipe underneath the Napa River and back up to a gravity sewer line on the City of Calistoga Golf Course. The generator at this lift station is a vital piece of the city’s infrastructure and has a transfer switch that automatically switches to stand by generator power in the event of a power outage. This function ensures that the residents of Calistoga can sustain sanitary living environments without sewer overflows, until power is restored.
The old, outdated generator at the Rancho De Lift Station has been of concern for some time now, this specific model has been discontinued and is nearly impossible to find parts for. The project will consist of replacing the existing generator, install a new automatic transfer switch, electrical panel relocations, shed removal, and protective coverings, lighting, and a new security fence enclosure.
The contract award is for T&S Intermodal Maintenance, Inc. to provide construction services to purchase and install the improvements. T&S Intermodal Maintenance, Inc. services were competitively bid through the Gordian /Sourcewell ezIQC®, process. The ezIQC® process streamlines procurement by taking advantage of the “already competitive bid” processes that meet California Public Contracting requirements.
Staff has reviewed the bid from T&S Intermodal Maintenance, Inc. and recommends that the City Council award the contract to T&S Intermodal Maintenance, Inc.
FINANCIAL IMPACT:
Item #5.2.
The project is included in the FY 24/25 budget under Account No. 13-5478-4915 Rancho De Lift Station Improvement Project which has a balance of $110,000 in available funding. The total project cost of $73,442.07 is well within this budget.
CEQA STATUS:
The recommended action is not a project under the definitions contained in the Guidelines of the California Environmental Quality Act (CEQA) and is therefore exempt from CEQA ATTACHMENT(S):
Rancho De Upgrade Reso. Attach 1
Rancho De Upgrade Bid Attach 2
APPROVAL(S):
Connie Cardenas, Admin. Services Director Approved - Sep 20 2024 Laura Snideman, City Manager Approved - Sep 23 2024
Yudiana Galvan, City Clerk Approved - Sep 23 2024
Item #5.2.
RESOLUTION 2024-XXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA, COUNTY OF
NAPA, STATE OF CALIFORNIA, AUTHORIZING THE CITY MANAGER TO AWARD A PURCHASE ORDER IN AN AMOUNT OF $66,765.52 TO T&S INTERMODAL MAINTENANCE, INC. (GORDIAN) TO CONSTRUCT THE RANCHO DE LIFT
STATION IMPROVEMENT PROJECT
WHEREAS, the City owns and maintains a sewage lift station at 2412 Foothill Blvd. in the Rancho De Mobile Home Park, abuting the Napa River; and WHEREAS, the existing back-up Generator and necessary equipment is 20+ years old, and this specific model has been discontinued and is nearly impossible to find parts for and in critical need of replacement; and WHEREAS, the project will consist of replacing the existing generator, install a new automatic transfer switch, electrical panel relocations, shed removal, and protective coverings, lighting, and a new security fence enclosure; and WHEREAS, the contract award is for T&S Intermodal Maintenance, Inc., to provide construction services to purchase and install the improvements. T&S Intermodal Maintenance, Inc. services were competitively bid through the Gordian/Sourcewell ezIQC®, process. The ezIQC® process streamlines procurement by taking advantage of the “already competitively bid” processes that meet California public contracting requirements; and
WHEREAS, staff has reviewed the bid from T&S Intermodal Maintenance, Inc. and recommends that the City Council award the contract to T&S Intermodal Maintenance, Inc.; and
WHEREAS, per CEQA guidelines section 15301(b) this project is replacing existing facilities with negligible or no expansion of use, and therefore is exempt from CEQA; and
WHEREAS, the FY 24/25 Budget under Account No.13-5478-4915 Rancho De Lift Station Improvement Project, which has an balance of $110,000 in available funding. The total project cost of $73,442.07 is well within this budget.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF CALISTOGA DOES HEREBY find the following:
1. Authorizes the City Manager to execute the purchase order in an amount not to exceed $66,765.52 to T&S Intermodal Maintenance, Inc. to construct the Rancho De Lift Station Improvement Project.
2. Approves the Project construction budget in the amount of $73,442.07 that includes a contingency of 10% for change orders and authorizes the Public Works Director to negotiate and approve change orders, up to the approved construction budget amount.
ATTACHMENT 1 Item #5.2.
Resolution No. 2024-XXX
3. Directs staff to issue a notice of award to T&S Intermodal Maintenance, Inc. and otherwise administer the Project.
4. Waives any informalities or irregularities in T&S Intermodal Maintenance, Inc. bid.
PASSED, APPROVED AND ADOPTED this 1st day of October, 2024. I,
YUDIANA GALVAN, CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
____________________________ __________________________ Yudiana Galvan, City Clerk Donald Williams, Mayor
Item #5.2.
Work Order Signature Document
EZIQC Contract No.: CA-R3-GB01-123021-TSW
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing New Work Order
132124.00
Modify an Existing Work Order
Work Order Title:
Work Order Number.: Work Order Date:
X
09/05/2024
Contractor Name:
Contact:
Phone:
Contact:
Phone:
Travis Collins
Owner Name: City of Calistoga
Derek Rayner
7079422828
T&S Intermodal Maintenance, Inc. DBA T&S West
Work to be Performed
Work to be performed as per the Final Detailed Scope of Work Attached and as per the terms and conditions of Sourcewell EZIQC Contract No CA-R3-GB01-123021-TSW.
Brief Work Order Description:
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing Liquidated Damages Will apply: Will not apply:
Estimated Completion Date:
Time of Performance Estimated Start Date:
X
Work Order Firm Fixed Price: $66,765.52
Owner Purchase Order Number:
Approvals
City of Calistoga Date Contractor Date
2.00
9/5/2024
Work Order Signature Document
ATTACHMENT 2Item #5.2.
3.00 Detailed Scope of Work
To: Travis Collins From: Derek Rayner
T&S Intermodal Maintenance, Inc. DBA T&S
West
City of Calistoga
PO BOX 1592 1232 Washington Street
Linden, CA 95236 Calistoga, CA 64515
No Data Input 7079422828
Work Order Number:
Date Printed: September 05, 2024
132124.00
Work Order Title: Calistoga Rancho De Lift Station Shed, Electrical, and Fencing Brief Scope: Calistoga Rancho De Lift Station Shed, Electrical, and Fencing Preliminary Revised X Final
The following items detail the scope of work as discussed at the site. All requirements necessary to accomplish the items set forth below shall be considered part of this scope of work.
See attached.
Subject to the terms and conditions of EZIQC Contract CA-R3-GB01-123021-TSW.
Contractor Date
City of Calistoga Date
9/5/2024
Scope of Work
Item #5.2.
4.00 Contractor's Price Proposal - Summary
Owner PO #:
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing 132124.00
IQC Master Contract #: CA-R3-GB01-123021-TSW
Work Order #:
Title:
Re:
Date: September 05, 2024
Proposal Value:
Contractor: T&S Intermodal Maintenance, Inc. DBA T&S West $66,765.52
overhang shed $13,260.96
Section - 01 $5,568.40
Section - 02 $1,795.88
Section - 05 $1,251.92
Section - 06 $3,243.83
Section - 26 $33,543.26
Section - 32 $8,101.27
Proposal Total
Thisl total represents the correct total for the proposal. Any discrepancy between line totals, sub-totals and the proposal total is due to rounding.
$66,765.52
9/5/2024
Contractor's Price Proposal - Summary
Item #5.2.
5.00 Contractor's Price Proposal - Detail
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing 132124.00
IQC Master Contract #: CA-R3-GB01-123021-TSW
Work Order #:
Owner PO #:
Title:
Re:
Date: September 05, 2024
Proposal Value:
Contractor: T&S Intermodal Maintenance, Inc. DBA T&S West $66,765.52
Labor Equip. Material (Excludes)
Sect. Item Mod. UOM Description Line Total
overhang shed
01 22 16 00 0002 Reimbursable FeesReimbursable Fees will be paid to the contractor for eligible costs as directed by Owner. Insert the appropriate quantity to adjust the base cost to the actual Reimbursable Fee. If there are multiple Reimbursable Fees, list each one separately and add a comment in the "note" block to identify the Reimbursable Fee (e.g. sidewalk closure, road cut, various permits, extended warranty, expedited shipping costs, etc.). A copy of each receipt shall be submitted with the Price Proposal.
1 EA $361.97
Installation x x = 361.97
Quantity Unit Price Factor Total
260.00 1.00 1.3922
bond for project $13k x 2% = $260
01 22 20 00 0050 WelderFor tasks not included in the Construction Task Catalog® and as directed by owner only.
2 HR $2,210.81
Installation x x = 2,210.81
Quantity Unit Price Factor Total
16.00 99.25 1.3922
welders to fabricate structure onsite
3 01 22 23 00 1409 DAY 3/4 Ton, 4 x 4 Crew Cab Pickup Truck With Full-Time Truck Driver $370.51 Installation x x = 370.51
Quantity Unit Price Factor Total
X 1.00 266.13 1.3922
truck to support welder, material, and crew for 1 day
02 41 19 13 0333 Core Drill Minimum ChargeFor projects where the total core drilling charge is less than the minimum charge, use task "Minimum Charge For Core Drilling" exclusively. Task "Minimum Charge For Core Drilling" should not be used in conjunction with any other tasks in this section. Does not apply to sections "Drilling In Concrete Per Inch Of Depth" or "Drilling In Brick Or Block Per Inch Of Depth".
4 EA $1,039.92
Installation x x = 1,039.92
Quantity Unit Price Factor Total
1.00 746.96 1.3922
core saw minimum for posts
5 05 12 23 00 0062 TON 3" x 2" Weight Range 5-7 LB/LF Structural Tubing - Rectangle $5,390.73 Installation x x = 5,390.73
Quantity Unit Price Factor Total
0.50 7,744.19 1.3922
buy material for building framing of overhang shed
6 05 12 23 00 0062 0002 MOD For Hot Dip Galvanizing, Add $1,414.53 Installation x x = 1,414.53
Quantity Unit Price Factor Total
0.50 2,032.08 1.3922
07 41 13 00 0006 22 Gauge, Corrugated Or Ribbed, Galvanized Exposed Fastener Metal Roof Panels
7 SF $631.50
Installation x x = 631.50
Quantity Unit Price Factor Total
60.00 7.56 1.3922
roof
8 07 41 13 00 0013 LF Eave Flashing For Galvanized Steel Exposed Fastener Roofing $1,272.47 Installation x x = 1,272.47
Quantity Unit Price Factor Total
40.00 22.85 1.3922
9/5/2024
Contractor's Price Proposal - Detail
Item #5.2.
Contractor's Price Proposal - Detail Continues..
Work Order Title:
Work Order Number: 132124.00
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing overhang shed
9 31 23 16 36 0009 CY Excavation For Building Foundations And Other Structures By Hand in Soil $317.48 Installation x x = 317.48
Quantity Unit Price Factor Total
2.00 114.02 1.3922
hand dig post holes
10 32 31 13 13 0027 VLF 12" Diameter, Concrete Fill For Post Hole $251.04 Installation x x = 251.04
Quantity Unit Price Factor Total
8.00 22.54 1.3922
concrete fill post footings
Subtotal for overhang shed $13,260.96
Section - 01
01 22 16 00 0002 Reimbursable FeesReimbursable Fees will be paid to the contractor for eligible costs as directed by Owner. Insert the appropriate quantity to adjust the base cost to the actual Reimbursable Fee. If there are multiple Reimbursable Fees, list each one separately and add a comment in the "note" block to identify the Reimbursable Fee (e.g. sidewalk closure, road cut, various permits, extended warranty, expedited shipping costs, etc.). A copy of each receipt shall be submitted with the Price Proposal.
11 EA $1,475.73
Installation x x = 1,475.73
Quantity Unit Price Factor Total
1,060.00 1.00 1.3922
bond for project $53k x 2% = $1060
12 01 22 23 00 0812 DAY 250 To 299 Amperes, Diesel Powered Towable Welding Machine $174.18 Installation x x = 174.18
Quantity Unit Price Factor Total
1.00 125.11 1.3922
01 22 23 00 1038 5,000 LB Straight Mast, Rough Terrain Construction Forklift With Full-Time Operator
13 DAY $1,514.76
Installation x x = 1,514.76
Quantity Unit Price Factor Total
1.00 1,088.03 1.3922
forklift for loading/unloading generator
01 71 13 00 0004 First 25 Miles, Equipment Delivery, Pickup, Mobilization And Demobilization Using A Tractor Trailer With Up To 53' BedIncludes loading, tie-down of equipment, delivery of equipment, off loading on site, rigging, dismantling, loading for return and transporting away. For equipment such as bulldozers, motor scrapers, hydraulic excavators, gradalls, road graders, loader-backhoes, heavy duty construction loaders, tractors, pavers, rollers, bridge finishers, straight mast construction forklifts, telescoping boom rough terrain construction forklifts, telescoping and articulating boom man lifts with >40' boom lengths, etc.
14 EA $1,310.88
Installation x x = 1,310.88
Quantity Unit Price Factor Total
1.00 941.59 1.3922
forklift for loading/unloading generator
01 74 19 00 0016 40 CY Dumpster (5 Ton) "Construction Debris"Includes delivery of dumpster, rental cost, pick-up cost, hauling, and disposal fee. Non-hazardous material. 15 EA $1,092.85
Installation x x = 1,092.85
Quantity Unit Price Factor Total
1.00 784.98 1.3922
Subtotal for Section - 01 $5,568.40
Section - 02
16 02 41 16 13 0020 CCF Sorting Of Material Debris For Recycling Prior To Hauling Off $581.24 Installation x x = 581.24
Quantity Unit Price Factor Total
50.00 8.35 1.3922
sorting of debris for dumping/recycling
9/5/2024
Contractor's Price Proposal - Detail
Item #5.2.
Contractor's Price Proposal - Detail Continues..
Work Order Title:
Work Order Number: 132124.00
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing Section - 02
17 02 41 16 13 0020 0004 MOD For Up To 500, Add $174.72 Installation x x = 174.72
Quantity Unit Price Factor Total
50.00 2.51 1.3922
02 41 19 13 0333 Core Drill Minimum ChargeFor projects where the total core drilling charge is less than the minimum charge, use task "Minimum Charge For Core Drilling" exclusively. Task "Minimum Charge For Core Drilling" should not be used in conjunction with any other tasks in this section. Does not apply to sections "Drilling In Concrete Per Inch Of Depth" or "Drilling In Brick Or Block Per Inch Of Depth".
18 EA $1,039.92
Installation x x = 1,039.92
Quantity Unit Price Factor Total
1.00 746.96 1.3922
drilling minimum for anchoring generator to concrete, electric conduit tie-down straps in concrete, and posts for electrical panel board
Subtotal for Section - 02 $1,795.88
Section - 05
05 05 19 00 0086 1/2" Diameter x 5-1/2" Length, Hot Dipped Galvanized Steel, Wedge Anchor Expansion Bolt
19 EA $874.08
Installation x x = 874.08
Quantity Unit Price Factor Total
24.00 26.16 1.3922
anchors for generator hold down
20 05 05 23 00 0058 EA 1/2" Diameter x 3" Long, Galvanized A325 High Strength Structural Bolt $377.84 Installation x x = 377.84
Quantity Unit Price Factor Total
20.00 13.57 1.3922
bolts to connect electric boxes/panels to electric rack Subtotal for Section - 05 $1,251.92
Section - 06
21 06 11 16 00 0058 SF 2" x 6" Wood Wall Framing At 12" On Center $1,879.47 Installation x x = 0.00
Quantity Unit Price Factor Total
0.00 2.76 1.3922
Demolition 1,000.00 x 1.35 x 1.3922 = 1,879.47
demo framed walls and roof
22 06 42 16 00 0014 SF 1/4" Top Grade Plywood, Birch Veneer Prefinished With Trim $1,364.36 Installation x x = 0.00
Quantity Unit Price Factor Total
0.00 6.00 1.3922
Demolition 500.00 x 1.96 x 1.3922 = 1,364.36
demo siding
Subtotal for Section - 06 $3,243.83
Section - 26
26 01 20 91 0003 Lock Out/Tag Out Breaker Or Motor StarterExcludes tag or padlock See CSI section 26 01 20 91-0004 for padlock, 26 01 20 91-0005 for tag(s). 23 EA $1,402.08
Installation x x = 1,402.08
Quantity Unit Price Factor Total
30.00 33.57 1.3922
lock out existing breakers, disconnects, motor controls for equipment onsite, prior to demo 26 05 29 00 0031 Up To 1' Length x 1-5/8" Wide x 13/16" High, 12 Gauge, 304 Stainless Steel Unistrut Channel
24 EA $1,185.04
Installation x x = 1,043.04
Quantity Unit Price Factor Total
20.00 37.46 1.3922
Demolition 20.00 x 5.10 x 1.3922 = 142.00
unistrut for surface mounting electrical conduit
9/5/2024
Contractor's Price Proposal - Detail
Item #5.2.
Contractor's Price Proposal - Detail Continues..
Work Order Title:
Work Order Number: 132124.00
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing Section - 26
26 05 29 00 0036 >2' Length x 1-5/8" Wide x 1-5/8" High, 12 Gauge, 304 Stainless Steel Unistrut Channel
25 LF $999.32
Installation x x = 999.32
Quantity Unit Price Factor Total
20.00 35.89 1.3922
unistrut for electrical panel rack
26 05 29 00 0108 1" Diameter, 316 Stainless Steel, Standard Pipe And Rigid Conduit Clamp For Unistrut Channel
26 EA $453.72
Installation x x = 414.74
Quantity Unit Price Factor Total
30.00 9.93 1.3922
Demolition 20.00 x 1.40 x 1.3922 = 38.98
clamps for unistrut on conduit and panel rack
27 26 05 29 00 0164 EA 3/16" x 4' x 4' Aluminum Back Plate $1,135.94 Installation x x = 1,135.94
Quantity Unit Price Factor Total
1.00 815.93 1.3922
back plate for electric panel rack
26 05 33 13 0048 1" Rigid Galvanized Steel (RGS) Conduit Assembly With 3 #12 Copper THHN And 1 #12 Copper Insulated Grounding ConductorIncludes conduit, terminations, straps, wire as indicated. Not for use where detail is available. 28 CLF $5,091.16
Installation x x = 4,252.70
Quantity Unit Price Factor Total
2.00 1,527.33 1.3922
Demolition 2.00 x 301.13 x 1.3922 = 838.47
remove and re-run rigid conduit for exterior use
29 26 24 13 00 0145 EA 100 Amperes, 240 Volt, 3 Pole Single Branch Switch Unit $1,480.84 Installation x x = 1,368.14
Quantity Unit Price Factor Total
1.00 982.72 1.3922
Demolition 1.00 x 80.95 x 1.3922 = 112.70
30 26 24 13 00 0145 0535 MOD For Electrical Interlock Kit, Add $418.86 Installation x x = 418.86
Quantity Unit Price Factor Total
1.00 300.86 1.3922
26 24 16 00 0009 100 Ampere Rating, 120/240 Volt, 3 Wire, 1 Phase, Main Lugs, 24 Circuit Capacity Assembled Panelboard With Eighteen 20 Ampere Breakers 31 EA $3,302.62
Installation x x = 2,661.40
Quantity Unit Price Factor Total
1.00 1,911.65 1.3922
Demolition 1.00 x 460.58 x 1.3922 = 641.22
32 26 24 16 00 0009 0190 MOD For NEMA 3R Panelboard, Add $1,713.97 Installation x x = 1,713.97
Quantity Unit Price Factor Total
1.00 1,231.12 1.3922
33 26 32 13 19 0034 EA 35 KW, Industrial, Natural Gas Or Propane Generator Set (Generac SG) $4,276.87 Installation x x = 2,851.24
Quantity Unit Price Factor Total
X 1.00 2,048.01 1.3922
X Demolition 1.00 x 1,024.01 x 1.3922 = 1,425.63
Install generator, provided by owner
34 26 32 13 19 0034 0674 MOD For Steel Weather Protective Housing, Add $3,988.01 Installation x x = 3,988.01
Quantity Unit Price Factor Total
1.00 2,864.54 1.3922
26 36 23 00 0042 150 Amperes, Automatic Transfer Switch/Service Entrance, 3 Pole Circuit Breaker, NEMA 1 Enclosure (Cummins OTPCSE150)
35 EA $1,608.33
Installation x x = 1,072.22
Quantity Unit Price Factor Total
X 1.00 770.16 1.3922
X Demolition 1.00 x 385.08 x 1.3922 = 536.11
Install transfer switch, provided by owner
9/5/2024
Contractor's Price Proposal - Detail
Item #5.2.
Contractor's Price Proposal - Detail Continues..
Work Order Title:
Work Order Number: 132124.00
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing Section - 26
36 26 36 23 00 0042 0413 MOD For NEMA 3R Enclosure, Add $678.46 Installation x x = 678.46
Quantity Unit Price Factor Total
1.00 487.33 1.3922
26 56 19 00 0005 30 LEDs, 35 Watt, 350 mA Drive Current, Full Cutoff, LED Wall Pack (Lithonia
CSXW LED)
37 EA $5,808.04
Installation x x = 5,283.68
Quantity Unit Price Factor Total
4.00 948.80 1.3922
Demolition 4.00 x 94.16 x 1.3922 = 524.36
outside wall pack lights
Subtotal for Section - 26 $33,543.26
Section - 32
38 32 31 13 13 0090 LF 3" Outside Diameter Galvanized Steel Post, 7' To 10' In Length $517.06 Installation x x = 517.06
Quantity Unit Price Factor Total
20.00 18.57 1.3922
posts for electric panel - 2ea x 10'
32 31 13 13 0147 6' Galvanized Chain Link Fence, 9 Gauge Coiled Spring Mesh, Top And Bottom Rails, 2-1/2" Line Post At 10' On Center, 3" Corner Post 39 LF $3,266.10
Installation x x = 3,266.10
Quantity Unit Price Factor Total
60.00 39.10 1.3922
12' x 12' fence enclosure
40 32 31 13 13 0147 0161 MOD For Surface Mount On Concrete (Excludes Drilling And Anchors), Add $231.38 Installation x x = 231.38
Quantity Unit Price Factor Total
60.00 2.77 1.3922
41 32 31 13 13 0147 0171 MOD For Posts 5' On Centers, Add $675.77 Installation x x = 675.77
Quantity Unit Price Factor Total
60.00 8.09 1.3922
42 32 31 13 13 0147 0172 MOD For Up To 100, Add $625.65 Installation x x = 625.65
Quantity Unit Price Factor Total
60.00 7.49 1.3922
43 32 31 13 13 0219 LF 6' High Fence, Vinyl Plastic Fence Insert $1,408.68 Installation x x = 1,408.68
Quantity Unit Price Factor Total
68.00 14.88 1.3922
fencing and gate privacy slats
44 32 31 13 13 0311 EA 8' Wide x 6' High Single Gate Galvanized Steel Without Barbed Wire $1,246.74 Installation x x = 1,246.74
Quantity Unit Price Factor Total
1.00 895.52 1.3922
45 32 31 29 00 0023 LF Shadow Box, 3 - 2" x 4" Rails, 6' High 1" x 4" #1 Cedar $129.89 Installation x x = 0.00
Quantity Unit Price Factor Total
0.00 75.32 1.3922
Demolition 30.00 x 3.11 x 1.3922 = 129.89
demo existing fence
Subtotal for Section - 32 $8,101.27
Proposal Total
This total represents the correct total for the proposal. Any discrepancy between line totals, sub-totals and the proposal total is due to rounding.
$66,765.52
9/5/2024
Contractor's Price Proposal - Detail
Item #5.2.
Subcontractor Listing
132124.00
Calistoga Rancho De Lift Station Shed, Electrical, and Fencing IQC Master Contract #: CA-R3-GB01-123021-TSW
Work Order #:
Owner PO #:
Title:
Re:
Date: September 05, 2024
Proposal Value:
Contractor: T&S Intermodal Maintenance, Inc. DBA T&S West $66,765.52
Name of Contractor Duties Amount %
C AND R FENCE
CONTRACTORS INC
$8,000.00 11.98
6.00
9/5/2024
Subcontractor Listing
Item #5.2.
T & S West
P O Box 1592 Linden, CA 95236 Office: (209) 942-1360 Fax: (209) 942-1368 Scope of Work
Project Description: City of Calistoga- Rancho De Lift Station R/R Generator Date: August 29, 2024
Contractor: T & S West
T & S West (T & S) is pleased to submit a Detailed Scope of Work for the above referenced project. Scope based per job walk on 07/24/24.
Inclusions:
• Disconnect and remove existing generator.
o Generator to be set aside onsite in location determined by the City for the City to dispose. o The City shall disconnect and remove existing chemical system not in use. • Install new standby duty Generac RG025 liquid propane generator 25KW, 240/120V, 1 phase, 3 wire, 60Hz with weatherproof sound attenuated enclosure (supplied by owner). o Existing generator slab to be reused.
o Includes new Generac TX1 00A automatic transfer switch (supplied by owner). • Existing wood structure to be demolished and disposed. o Existing electrical panels on building to be demolished. o Existing underground conduits to be reused.
o Any new conduit or gas piping to be surface mounted.
• New galvanized steel strut rack to be fabricated and installed to house new electrical equipment. o New 100A, 1 PH, 240/120V, NEMA 3R enclosure circuit breaker to be installed. o New 100A, 1 PH, 240/120V, 18 ckt, NEMA 3R distribution panel o Extend existing conduit and wire that feeds existing control panel to new distribution panel.
o Add 240V outlet for mobile emergency generator, if power goes down. • Lighting
o Furnish and install area lighting for the electrical panels, generator and wet well area. o QTY 2 light fixtures for electrical & generator area
o QTY 2 light fixtures for wet well area installed on fence. o Lighting to be controlled by switch mounted at electrical panels. No photocell control. o All conduit to be surface mounted.
Item #5.2.
T & S West
P O Box 1592 Linden, CA 95236 Office: (209) 942-1360 Fax: (209) 942-1368 • Fencing
o Furnish and install 6’ privacy chain-link fence with brown vinyl slats, no barb wire, around generator and propane tank, surface mounted posts to existing concrete. o Install 8’ double drive gate at front entrance
• Overhang / Lean to Shed- Approx. 10’ W x 6’ D
o Core saw to place posts in concrete footing- 2ea
o Fabricate steel structure with 3” x 2” steel tubing
o Install corrugated metal roof
Notes:
- This proposal is based on performing all work concurrently. One move-in for all operations, during normal working hours, unless otherwise stated above. We would be happy to discuss alternatives for scheduling, if other requests are needed. - Owner to provide staging area directly adjacent for work within project limits. - Owner isresponsible for any costs associated with towing vehicles within limits of work. - Prices are based on award of all items of work listed in this proposal. - Owner expressly acknowledges that Contractor is a licensed contractor authorized to perform work provided in this Contract and that the Contractor is not an engineer or a design consultant.
Proposals made by Contractor with respect to work to be performed are made solely for the consideration of Owner and Owner’s design engineer or design consultant, who shall be solely responsible for determining whether any such work proposed by Contractor is, or will be, adequate to satisfy the needs and or purposes of the Owner. Except as expressly provided in this Contract, no warranty or representation of any kind or nature with respect to any such proposal. Warranty with respect to fitness for any purpose or use is expressly disclaimed to the fullest extent of the law.
Exclusions:
- Load bank testing, fuel tank, fuel
- Service or maintenance agreements
- AQMD Permit Authority to Construct
- Electrical Testing: Not limited to International Electrical Testing Association (NETA), infrared scanning, harmonic content or other independent agency testing of switchgear, switchboards, protective relays, circuit breaker, electrical coordination studies, arc flash studies and reactive load site testing.
- Environmental Testing
- Environmental Protection Agency (EPA), local air quality district or other Authority Having Jurisdiction(AHJ), including acoustical.
- Programming
- All irrigation, sprinkler, and lawn/sod repair or replacement Item #5.2.
T & S West
P O Box 1592 Linden, CA 95236 Office: (209) 942-1360 Fax: (209) 942-1368 - The repair of utilities that are not marked or are within 12 inches of finish subgrade elevations which are damaged by sub-grading operations.
- This proposal specifically excludes: underground work; concrete; asphalt concrete; unsuitable subgrade soils conditions and compaction; imported dirt or topsoil; engineering or architectural services; seismic calculations; as-built plans; professional land surveyor; survey monuments; all testing; all permits and fees; inspection fees; costs for testing, handling, and/or removing contaminated materials; SWPP Plans, monitoring, or installation; tree removal or trimming, tree protection of any kind, including roots; adjusting utilities; weed spraying; message boards and public notifications; items of work not specifically mentioned above in proposal.
Item #5.2.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Greg Desmond, Planning and Building Director
Meeting: City Council - Oct 01 2024
Subject: Second Reading - Amendment to Calistoga Municipal Code Chapter 5.12 Mobile Food Vendors
AGENDA TITLE:
Consider an Ordinance of the City of Calistoga Amending Municipal Code Chapter 5.12 Mobile Food Vendors, Section 5.12.010 E. 2. regarding where mobile vending vehicles may conduct vending.
RECOMMENDATION:
Adopt Ordinance Amending Municipal Code Chapter 5.12 Mobile Food Vendors BACKGROUND:
On September 10, 2024, the City Council waived the first reading and introduced the following amendments to Municipal Code Chapter 5.12 Mobile Food Vendors:
CMC Chapter 5.12 Mobile Food Vendors Section 5.12.010. E. Operational Requirements. 2. Public Property. currently states:
Mobile vending vehicles may conduct vending within the public right-of-way in Community Commercial (CC) and Light Industrial (I) zoning districts only, except on the entire length of Wappo Avenue. Mobile food vendors are prohibited from vending in the public right-of-way abutting a parcel with residential occupancy. Mobile food vendors are prohibited from vending on State Highway 128 and State Highway 29 within the City of Calistoga.
The amended language to implement the city council's direction would be as as follows:
Mobile vending vehicles may conduct vending within the public right-of-way in Community Commercial (CC), Light Industrial (I) zoning districts. However, this use is prohibited along the entire length of Wappo Avenue, along Brannan Street and along Washington Street from the intersection of Lincoln Avenue to Earl Street.
Mobile vending vehicles may conduct vending in the following specifically designated locations within the Public (P) district; (1) Logvy Park, (2) Fairgrounds main entrance adjacent to North Oak Street, and (3) Fairgrounds golf course entrance adjacent to Grant Street.
Mobile food vendors are prohibited from vending in the public right-of-way abutting a parcel with residential occupancy. Mobile food vendors are prohibited from vending on State Highway 128 and State Highway 29 within the City of Calistoga.
In the event that more than one mobile food vendor is interested in a specific vending location, planning and building department staff will conduct a lottery to select a vendor for the specific location.
(Attachment 1) addresses the requested amendments.
Item #5.3.
CEQA STATUS:
This action does not meet the definition of a “project” under the California Environmental Quality Act (CEQA).
ATTACHMENT(S):
ATTCH 1 Ord xxx Amendment to Mobile Food Vending
APPROVAL(S):
Connie Cardenas, Admin. Services Director Approved - Sep 23 2024 Laura Snideman, City Manager Approved - Sep 23 2024
Yudiana Galvan, City Clerk Approved - Sep 23 2024
Item #5.3.
ATTACHMENT 1
ORDINANCE NO. 7**
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CALISTOGA AMENDING CALISTOGA MUNICIPAL CODE CHAPTER
5.12. MOBILE FOOD VENDORS, SECTION 5.12.010 D REGARDING MOBILE VENDING PERMIT ISSUANCE, AND SECTION 5.12.010 E. 2.
REGARDING WHERE MOBILE VENDING VEHICLES MAY CONDUCT
VENDING
WHEREAS, on August 15, 2023, the City Council adopted Ordinance No. 761 Mobile Food Vendors; and
WHEREAS, the new ordinance was implemented in September of 2023; and WHEREAS, on August 20, 2024, the City Council was asked to provide feedback to staff on the newly implemented Mobile Food Vending Ordinance; and WHEREAS, the City Council, during its discussion on August 20, 2024, agreed that the ordinance was generally working well except for along Brannan Street and a segment along Washington Avenue and the need for additional vending locations; and WHEREAS, the City Council, during its discussion on August 20, 2024, expressed concerns that the location along Brannan Street is not an appropriate location for mobile food vending due to inconsistencies with adjacent uses; and WHEREAS, the City Council, during its discussion on August 20, 2024, expressed concerns that the segment of Washington Street between Lincoln Avenue and Earl Street is narrow and developed adjacent residential uses making this area potentially dangerous; and
WHEREAS, the City Council, during its discussion on August 20, 2024, expressed interest in Logvy Park as an additional location for mobile food vending; and WHEREAS, the City Council, during its discussion on August 20, 2024, expressed interest in the main entrance to the fairgrounds and the entrance to the fairgrounds golf course as an additional locations for mobile food vending; and WHEREAS, the City Council, during its discussion on August 20, 2024, expressed interest in establishing a lottery process in the event that more than one vendor is interested in a specific vending location; and
WHEREAS, the draft amendments were released to the public for review on the City’s website and published in the Calistoga Tribune on August 29, 2024; and WHEREAS, during its review, the City Council considered the public record, including the staff report, findings, and any written materials and testimony presented by the public during the hearing; and
WHEREAS, to ensure public health and safety, the City Council does desire to enact the following regulations related to mobile food vending.
Item #5.3.
NOW, THEREFORE, THE CALISTOGA CITY COUNCIL DOES HEREBY
ORDAIN AS FOLLOWS:
SECTION ONE
Findings: The above recitals are incorporated herein as if set forth herein in full and each is relied upon independently by the City Council for its adoption of this Ordinance.
SECTION TWO
Chapter 5.12.010 D of the Calistoga Municipal Code is hereby amended to read as follows:
In the event that more than one mobile food vendor is interested in a specific vending location, planning and building department staff will conduct a lottery to select a vendor for the specific location.
SECTION THREE
Chapter 5.12.010.2. of the Calistoga Municipal Code is hereby amended to read as follows:
2. Public Property. Mobile vending vehicles may conduct vending within the public rightof-way in Community Commercial (CC), Light Industrial (I) zoning districts. However, this use is prohibited along the entire length of Brannan Street, Wappo Avenue and along Washington Street from the intersection of Lincoln Avenue to Earl Street.
In addition, mobile vending vehicles may conduct vending in the following specifically designated locations within the Public (P) district; (1) Logvy Park, (2) Fairgrounds main entrance adjacent to North Oak Street, and (3) Entrance to the Fairgrounds golf course adjacent to Grant Street.
Mobile food vendors are prohibited from vending in the public right-of-way abutting a parcel with residential occupancy. Mobile food vendors are prohibited from vending on State Highway 128 and State Highway 29 within the City of Calistoga.
SECTION FOUR
The City Council hereby determines that this Ordinance is exempt from review under the California Environmental Quality Act (CEQA). Pursuant to Section 15061(b)(3) of the CEQA Guidelines, CEQA applies only to projects which have the potential for causing a significant effect on the environment. This Ordinance will not result in a significant foreseeable environmental impact.
SECTION FIVE
Severability. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional or invalid, or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.
Item #5.3.
SECTION SIX
Effective Date. This Ordinance shall take effect 30 days from its passage, and shall be published in accordance with the law, in a newspaper of general circulation published and circulated in the City of Calistoga.
SECTION SEVEN
Publication. The City Clerk is directed to cause this Ordinance to be published in the manner required by law.
THIS ORDINANCE was introduced with the first reading waived at the City of Calistoga City Council meeting on the 10th day of September 2024, and was passed and adopted at a regular meeting of the Calistoga City Council on the 1st day of October by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
Yudiana Galvan, CMC, City Clerk Donald Williams, Mayor
Dated:
Item #5.3.
City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Laura Snideman, City Manager
Meeting: City Council - Oct 01 2024
Subject: Interim Fairground License Agreements with Calistoga Arts Center, Calistoga Cares! Food Bank, Calistoga Vines Lessee, Inc., and PG&E AGENDA TITLE:
Interim License Agreements for Use of the Fairgrounds Property by Four Current Tenants.
RECOMMENDATION:
Consider adopting a Resolution to enter into separate Interim License Agreements between the City of Calistoga and four current fairgrounds tenants with expired agreements.
BACKGROUND:
Napa County had agreements with six agencies for use of various parts of the Fairgrounds property.
Four of the agreements, those with Calistoga Arts Center, Calistoga Cares! Food Bank, Calistoga Vines Lessee, Inc. (dba Four Seasons Resort and Residences Napa), and Pacific Gas and Electric, expired as of July 2024. Nine-month interim license agreements memorializing basic terms of the agreement and outlining the insurance and indemnification requirements are being brought before the Council for adoption. Over the next nine months, the Fairgrounds Director will work with the agencies to negotiate new agreements.
The two additional agreements are more complicated wireless communications facility agreements.
The City is currently negotiating an Assignment and Assumption Agreement between the City, Napa County and GTE Mobilenet LLC (dba Verizon Wireless) for the assignment of the Land and Tower Lease Agreement between the Napa County and Verizon that did not expire on June 30, 2024. The City is also currently working with New Cingular Wireless (AT&T) to determine a path forward.
ANALYSIS:
Napa County had four license agreements for rental of physical space on the property. The agreements were generally one-year agreements that the County extended on an annual basis.
An overview of the four agreements follows.
Calistoga Arts Center
Space License Agreement for the Cropp Building to be used as an art center Term: dated August 11, 2020 and amended five times through June 30, 2024 Monthly fee: Originally $1,100/month, reduced to $350/month on July 1, 2022.
Calistoga Cares! Food Bank
Item #5.4.
Space License Agreement for temporary use of the Rock Room and Tubbs Kitchen in the Tubbs building for temporary storage of food and food distribution on the 2nd and 4th Thursday of the month
Term: dated February 16, 2023 and amended once through June 30, 2024 Monthly fee: $150/month
Calistoga Vines Lessee Inc. (dba Four Seasons Resort and Residences Napa) Space License Agreement for use of Golf Course Parking lot for employee parking. First amendment added space in RV parking lot
Term: dated December 8, 2020 and amended four times through June 30, 2024 Monthly fee: Currently $3,000/month for Golf Course and portion of RV parking lot Pacific Gas and Electric (PG&E)
Space License Agreement for temporary use of the Covered Pavilion for vehicle parking and equipment storage
Term: dated August 2, 2021 and amended twice through June 30, 2024 Monthly fee: $4,679/month
The proposed Interim License Agreements are for an initial term of nine months and allow for three one-month extensions to provide time for the City to evaluate the current use and value of the property and negotiate new leases. The Interim License Agreements:
Identify the license area and approved uses;
Establish rules and regulations regarding the use of the remaining portion of the Fairgrounds property;
Include the term and monthly fee;
Address taxes, utilities, maintenance and repairs; and Require indemnity and insurance coverage.
FINANCIAL IMPACT:
The Fiscal Year 2024-25 budget includes $100,000 in revenue from the Fairgrounds. The license agreements would generate $98,148 of revenue.
CEQA STATUS:
The action is exempt from environmental review under the California Environmental Quality Act, Public Resource's Code section 21000 et seq. ("CEQA") pursuant to CEQA Guidelines Section 15061(b)(3) as it can be seen with certainty that the project has no potential for causing a significant effect on the environment.
ATTACHMENT(S):
Draft Resolutions - Fairgrounds Interim License Agreements Calistoga Cares Food Bank Agreement
Calistoga Vines Agreement (New Exhibit)
PGE Agreement
Calistoga Art Center Agreement
APPROVAL(S):
Item #5.4.
Connie Cardenas, Admin. Services Director Approved - Sep 20 2024 Laura Snideman, City Manager Approved - Sep 23 2024
Yudiana Galvan, City Clerk Approved - Sep 23 2024
Item #5.4.
RESOLUTION NO. 2024-XXX
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CALISTOGA, COUNTY OF NAPA, STATE OF
CALIFORNIA, AUTHORIZING THE CITY MANAGER TO ENTER INTO SEPARATE INTERIM LICENSE
AGREEMENTS FOR USE OF A PORTION OF THE FAIRGROUNDS PROPERTY WITH THE FOLLOWING FOUR AGENCIES: CALISTOGA ARTS CENTER; CALISTOGA CARES! FOOD BANK; CALISTOGA VINES LESSEE, INC. (DBA FOUR SEASONS RESORT AND RESIDENCES NAPA), AND PACIFIC GAS AND ELECTRIC WHEREAS, The City of Calistoga assumed ownership and associated operational responsibility of the Napa County Fairgrounds from Napa County in July of 2024; and WHEREAS, Napa County had Space License Agreements with four separate agencies for the use of a portion of the fairgrounds property which expired on June 30, 2024; and WHEREAS, the four agencies wish to continue to use the property in the short term and it is necessary for the City to enter into agreements that identify the license area and approved uses; establish rules and regulations regarding the use of the remaining portion of the fairgrounds property; include the term and monthly fee; address taxes, utilities, maintenance and repairs; and include indemnity and insurance requirements; and
WHEREAS, an Interim License Agreement between the City of Calistoga and Calistoga Arts Center establishes the allowed use of the Cropp Building as an arts center at a monthly rate of $350 effective retroactively to June 27, 2024 through April 30, 2025 subject to three one-month extensions; and
WHEREAS, an Interim License Agreement between the City of Calistoga and Calistoga Cares! Food Bank establishes the allowed use of the Rock Room and Tubbs Kitchen in the Tubbs Building as a food pantry at a monthly rate of $150 effective retroactively to June 27, 2024 through April 30, 2025 subject to three one-month extensions; and
WHEREAS, an Interim License Agreement between the City of Calistoga and Calistoga Vines Lessee, Inc. (dba Four Seasons Resort and Residences Napa) establishes the allowed use of the Golf Course parking lot and a portion of the RV parking lot for employee parking at a monthly rate of $3,000 effective retroactively to June 27, 2024 through April 30, 2025 subject to three one-month extensions; and
WHEREAS, an Interim License Agreement between the City of Calistoga and Pacific Gas and Electric (PG&E) establishes the allowed use of the Covered Pavilion as a material laydown and staging area to park vehicles and locate construction equipment in support of PG&E’s pole transformer replacement project at a monthly rate of $4,679 effective retroactively to June 27, 2024 through April 30, 2025 subject to three one-month extensions.
NOW, THEREFORE BE IT RESOLVED by the City Council of the City of Calistoga that the Calistoga City Council hereby authorizes the City Manager to enter into the following agreements:
1. License Agreement between the City of Calistoga and Calistoga Art Center, a California 501(c)(3) non-profit organization;
Item #5.4.
2. License Agreement between the City of Calistoga and Calistoga Cares! Food Bank, a California 501(c)(3) non-profit organization;
3. License Agreement between the City of Calistoga and Calistoga Vines Lessee, Inc dba Four Seasons Resort and Residences Napa Valley;
4. License Agreement between the City of Calistoga and Pacific Gas and Electric (PG&E), a Calistoga Corporation.
PASSED, APPROVED AND ADOPTED this 1st day of October 2024. I, YUDIANA GALVAN, CITY CLERK OF THE CITY OF CALISTOGA, HEREBY CERTIFY the foregoing resolution was introduced and passed at a regular meeting of the Calistoga City Council by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST: APPROVED:
______________________________ ___________________________ Yudiana Galvan, CMC, City Clerk Donald Williams, Mayor
Item #5.4.
License Date:
City:
City's Address:
Licensee:
Licensee's Address:
License Area:
Length of Tenn:
Commencement Date:
Expiration Date:
License Fee:
Security Deposit:
Permitted Use:
Brokers:
Exhibits
4856-7810-35!0 v2
LICENSE AGREEMENT
BASIC LICENSE INFORMATION
Dated retroactively as of July 27, 2024, for reference purposes only
City of Calistoga,
a general law city
City of Calistoga
1232 Washington St.
Calistoga, CA 94515
Tel: (707) 942-2802
Attn: Citv Manaaer
Calistoga Cares! Food Bank, Inc.
Calistoga Cares! Food Bank, Inc.
P.O. Box451
Calistoga, CA 94515
Tel: (707) 486-1802
Attn: Suzan Shaw, President, Board of Directors
Scoops4 7 ®aol.com
The Rock Room and Tubbs Kitchen and a path of travel at the Calistoga Fairgrounds property at 1435 North Oak Street as illustrated in Exhibit A
Approximately nine (9) months, subject to extension as described in Section 3.3
Retroactively, commencing on July 27, 2024
April 30, 2025
Monthly License Fee: $150.00 due on the first of each month None
Operation of a temporary Food pantry and monthly Food
Distribution Events
None
A - License Area
B - Rules and Regulations
1 Item #5.4.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is entered into this n day ok )J '¥ . 2024 ("Agreement"), by and between the CITY OF CALISTOGA, a general law citYC'City"), and CALISTOGA CARES! FOOD BANK INC., a California 501(c)(3) non-profit organization ("Licensee").
1. GRANT OF LICENSE: In consideration of the stated conditions and agreements, City hereby grants permission to licensee to carry out the Permitted Uses within the License Area as described herein below ("License").
2. LICENSE AREA:
2.1 License Area. Licensee may occupy those areas as specified in the Basic License Information, as depicted on Exhibit A attached hereto and incorporated herein ("License Area"). The License Area has the address specified in the Basic License Information.
2.2 Common Area. In addition to the License Area, and subject to the rules and regulations attached hereto as Exhibit B, Licensee shall have the non-exclusive right, in common with any other occupants of the Fairgrounds Property to use the common areas ("Common Area"). The use of the Common Area shall be for the non-exclusive use of Licensee and Licensee's employees, agents, suppliers, customers and patrons, in common with City and all other occupants of the Calistoga Fairgrounds and such other persons to whom City has previously granted, or may hereinafter grant, rights of usage. Licensee shall not be entitled to use the Common Area for storage of goods, vehicles, refuse or any other items. City reseNes the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time in its sole discretion. If Licensee shall use any of the Common Area for storage of any items, Licensee shall pay all fines and other charges imposed upon either City or Licensee by any fire, building or other regulatory body, and Licensee shall pay all costs incurred by City to clear that portion of the Common Area so used by Licensee and dispose of such items.
2.3 No Representations. Licensee accepts the License Area in "AS-IS" condition "WITH ALL FAULTS" without any representations or warranties by City, and with no obligation of licensor to make alterations or improvements to the License Area. Licensee acknowledges that neither City nor any agent of City has made any representation or warranty with respect to the suitability of the License Areas for the conduct of Licensee's business. City shall not be liable for any latent or patent defects in the License Area. If required for the conduct of Licensee's business, Licensee shall be responsible for requesting an inspection and obtaining a Certificate of Occupancy from the City of Calistoga. This shall include, but is not limited to, any necessary fire sprinkler upgrades, electrical service upgrades, compliance with the ADA (defined in Section 6) and any other requirements mandated by the Certificate of Occupancy inspection.
2.4 City's Reserved Rights. City hereby reseNes the right, and at any time and from time to time, without the same constituting an actual or constructive eviction, to make alterations, additions, repairs, improvements to or in all or any part of the Building, and Common Area within and around the Building and to change the arrangement and/or location of entrances or passageways, doors and doorways, corridors, elevators, stairs, toilets and other public parts of the Building and parking areas, drive isles, landscaping, curb cuts and paved and unpaved portions of the exterior Common Area. Without limiting the foregoing, City reseNes the right from time to time to install, use, maintain, repair, relocate and replace pipes, ducts, conduits, wires, meters and equipment for services to the License Area or other part of the Building which are 4856-7810-3510 V2 2
Item #5.4.
above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas of the Building which are located within the License Area or located elsewhere in the Building. In connection with any of the foregoing activities, City shall use reasonable efforts to minimize any interference with Licensee's use of the License Area and shall not, without the prior written approval of Licensee, (a) materially change the location, size or configuration of the License Area; or (b) do anything which would have a material and adverse effect on access to the License Area, or ingress and egress to the License Area. No rights to any view or to light or air over any property, whether belonging to City or any other person, are granted to Licensee by this License.
2.5 No Interest in Land Granted. Nothing herein shall be deemed to grant to Licensee any fee interest, leasehold. or other possessory interest in the property which the Building occupies, or any portion thereof, or any exclusive right or special status to negotiate or purchase. This Agreement grants a limited revocable license upon specified terms and no more.
3.1 Generally. Unless otherwise earlier terminated, the term of this License ("Term») shall commence on July 27, 2024 ("Commencement Date"), and terminate on April 30, 2025 ("Expiration Date"), unless terminated earlier as set forth in section 3.2 or extended as set forth in Section 3.3.
3.2 Early Termjnation. At any time during the Term, City may terminate the License by the giving of not less than thirty (30) days' prior written notice to the other in accordance with Article 15. Upon such early termination, the rights and obligations of the parties hereunder shall terminate, except for those obligations which, by their terms, survive the expiration or earlier termination of this Agreement.
3.3 Extension Options. Provided Licensee is not in default of this License, City may extend the Term of this License a maximum of three (3) times for a period of thirty (30) days each at the sole discretion of City's City Manager.
4. LICENSE FEES:
4 .1 Base License Fee. The fee for use of the License Area during the Term shall be the amount specified in the Basic License Information. The License Fee shall be paid without prior notice or demand. The License Fee shall be paid to the City of Calistoga at 1232 Washington St., Calistoga, CA 94515 and sent to the attention of the Fairgrounds Director or such other place as City shall direct. If the Term ends on a day other than the last day of the calendar month, the License Fee for any such partial month shall be prorated at the rate of one-thirtieth of the monthly License Fee for each day of the period.
4.2 Condition Precedent. As a condition precedent to the effectiveness of this Agreement, on or before Licensee's execution of this Agreement, Licensee shall pay to City any unpaid Licensee Fees and Additional Fees accruing from and after August 1 through September 30, 2024.
4.3 Additional Fees. As used in this License, the term "Additional Fees" shall mean all sums of money that are due and payable by Licensee under the terms of this Agreement, other than the base License Fee. The term "Fees," as used herein, shall mean the License Fee and, Additional Fees and all other amounts payable hereunder from Licensee to City. Unless 4856-7810-3510 v2 3
Item #5.4.
otherwise specified herein, all Fees shall be due and payable by Licensee on or before the date that is thirty (30) days after billing by City.
4.4 Intentionally Omitted
5. TAXE AND OPERA TJNG EXPENSES:
5.1 Taxes
(a) Personal Property and Possessory Interest Taxes. Licensee shall pay all Truces (as hereinafter defined) levied or imposed against the License Area or Licensee's personal property or trade fixtures placed by Licensee in or about the License Areas during the Term ("Personal Property Taxes"). In addition, if the interest created by this Licensee is subject to property taxation under the laws of the State of California, the party in whom the possessory interest is vested shall be subject to the payment of the truces levied on such interest. This notice is included in this License pursuant to the requirements of Section 107.6 (a) of the Revenue and Taxation Code of the State of California.
(b) Payment. Licensee shall pay the Personal Property Taxes or possessory interest taxes tn accordance with the instructions of the taxing entity. Licensee shall pay the Personal Property Taxes, if any, originally imposed upon City, upon City's election, either (a) annually within thirty (30) days after the date City provides Licensee with a statement setting forth in reasonable detail such Taxes, or (b) monthly in advance based on estimates provided by City based upon the previous year's tax bill. All Personal Property Taxes originally imposed upon City and payable by Licensee with respect to the License Area shall be prorated on a per diem basis for any partial tax year included in the Term. Licensee's obligation to pay Taxes during the last year of the Term shall survive the expiration or termination of this License.
5.2 Operating Expenses. All costs of management, operation, maintenance, insuring and repair of the (i) structural elements of the Building (including the roof); (ii) Common Area maintenance; and (iii) City's property insurance, tf any, are "Operating Expenses". During the Term, City shall not assess Licensee any such Operating Expenses, unless the same were incurred as a result of the actions or inactions of Licensee, Licensee's invitees or anyone in the employ of Licensee, in which event such costs may be charged to Licensee as Additional Fees.
6. USE: COMPLIANCE WITH LAWS:
6.1 Use of License Area. Licensee may use the License Area to temporarily operate a Food Pantry in the Rock Room, including temporary storage of food items in need of refrigeration in the Tubbs Kitchen, and a path of travel for monthly food distribution events ("Permitted Use") to serve low-income individuals, families and seniors in Napa County and for no other purposes without the express written consent of City. Licensee acknowledges that neither City nor any agent of City, has made any representation or warranty with respect to the suitability or fitness of the License Area for the conduct of Licensee's business.
6.2 Compliance with Laws. Licensee shall comply with all laws, ordinances, rules, regulations and codes, of all municipal, county, state and federal authorities, including the Americans With Disabilities Act, as amended (42 U.S.C. Section 1201 et seq. [the "ADA"]) (collectively, "Laws") pertaining to Licensee's use and occupancy of the License Area and its Permitted Use. Licensee shall not commit, or suffer to be committed, any waste upon the License 4856-781 0-351 O v2 4
Item #5.4.
Area, or any public or private nuisance, or other act or thing that disturbs the quiet enjoyment of any other occupants or surrounding neighborhoods.
7. UTILITIES:
7.1 Payments for Utilities and Services. Licensor shall pay for electrical, gas, water, and sewer utility service through the various utllity providers as required for normal use of the space. Licensee shall contract directly with and shall pay all charges for telephone, refuse collection, janitorial, pest control, security and monitoring services furnished to the License Area.
7.2 No Liability of City. Except in the case of City's gross negligence or willful misconduct, in no event shall City be liable or responsible for any loss, damage, expense or liability, including, without limitation, loss of business or any consequential damages, arising from any failure or inadequacy of any service or utility provided to the License Area, whether resulting from any change, failure, interference, disruption or defect in supply or character of the service or utility provided to the License Area, or arising from the partial or total unavailability of the service or utility to the License Area, from any cause whatsoever, or otherwise, nor shall any such failure, inadequacy, change, interference, disruption, defect or unavailability constitute an actual or constructive eviction of Licensee, or entitled Licensee to any abatement or diminution of License Fees or otherwise relieve Licensee from its obligations under this License.
8. MAINlENANCE AND REPAIR OF LICENSE AREA:
8.1 Maintenance and Repair by Licensee
8.1.1 Licensee Maintenance. Licensee shall, at its sole costs and expense, maintain the License Area in good repair and in a neat and clean condition (ordinary wear and tear, casualty and condemnation excepted) including making all necessary repairs and replacements as a result of any damage caused by Licensee's use of the License Area.
Licensee's repair and maintenance obligations include, without limitation, repairs to: (i) floor coverings; (ii) interior partitions; (iii) doors; (iv) interior side of demising walls; (v) fire life safety systems, Including fire alarms and/or smoke detectors; (vi) kitchens; (vii) plumbing and similar facilities located within, or exclusively serving the License Area; (viii) telephone and data equipment and cabling; and (ix) landscaping around the Building where the License Area is located.
8.1.2 Licensee Repair. Licensee shall further, at its own costs and expense, repair or restore any damage or injury ordinary wear and tear excepted to all or any part of the non-structural portions of the License Area and utility lines exclusively servicing the License Area caused by Licensee or Licensee's agents, employees, invitees, licensees, visitors or contractors, including but not limited to repairs or replacements necessitated by (i) Licensee's use of the License Area, and (ii) the moving of any property into or out of the License Area.
8.2 City Maintenance and Repair. City shall maintain in good repair, provided such repairs are not necessitated by the actions or inactions of Licensee, Licensee's invitees or anyone in the employ or control of Licensee: (a) the structural elements of the Tubbs building, including structural elements of exterior walls and foundations; and (b} the Common Area.
Licensee hereby waives any and all rights under and benefits of subsection 1 of Section 1932, and Sections 1941 and 1942 of the California Civil Code or any similar or successor Laws now or hereby in effect. Licensee shall immediately give City written notice of the need for repair of the items for which City is responsible. If Licensee or Licensee's invitees or anyone in the employed 4856-7810-3510 V2 5
Item #5.4.
or control of Licensee caused any damages necessitating such repair, then Licensee shall pay to City the cost thereof, immediately upon demand therefor. Except as otherwise expressly set forth in this License, Licensee waives any right to terminate this License or offset or abate Rent by reason of any failure of City to make repairs to the License Area or Building.
9. ENVIRONMENTAL PROTECTION PROVISIONS:
9.1 Hazardous Materials. "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive, flammable, explosive, radioactive or corrosive, including, without limitation, petroleum, solvents, lead, acids, pesticides, paints, printing ink, PCBs, asbestos, materials commonly known to cause cancer or reproductive problems, and those materials, substances and/or wastes, including wastes which are or later become regulated by any local governmental authority in the state in which the License Area is located or the United States Government, including, but not limited to, substances defined as "hazardous substances," "hazardous materials," "toxic substances" or "hazardous wastes" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act; all environmental laws of the state where the Station is located, and any other environmental law, regulation or ordinance now existing or hereinafter enacted. "Hazardous Materials Laws" shall mean all present and future federal, state and local laws, ordinances and regulations, prudent industry practices, requirements of governmental entities and manufacturer's instructions relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, . presence, disposal or transportation of any Hazardous Materials, including without limitation the laws, regulations and ordinances referred to in the preceding sentence.
9.2 Reportable Uses Required Consent. Except as permitted in this Section 9, Licensee hereby agrees that Licensee and Licensee's officers, employees, representatives, agents, contractors, subcontractors, successors. assigns, vendors, concessionaires, invitees and any other occupants of the License Area (for purposes of this Section 9, referred to collectively herein as "Licensee's Representatives") shall not cause or permit any Hazardous Materials to be used, generated, manufactured, refined, produced, processed, stored or disposed of, on, under or about the License Area or transport to or from the License Area without 1he express prior written consent of City, which consent may be limited in scope and predicated on strict compliance by Licensee of all applicable Hazardous Materials Laws and such other reasonable rules, regulations and safeguards as may be required by City (or any insurance carrier, environmental consultant or lender of City, or environmental consultant retained by any lender of City) in connection with using, generating, manufacturing, refining, producing, processing, storing or disposing of Hazardous Materials on, under or about the License Area. In connection therewith, Licensee shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by Licensee or any of Licensee's Representatives of Hazardous Materials on the License Area, including without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the License Area. The foregoing notwithstanding, Licensee may use ordinary and customary materials reasonably required to be used in the course of the Permitted Use, ordinary office supplies (copier, toner, liquid paper, glue, etc.), common household cleaning materials and gasoline and oil in vehicle tanks, so long as such use is in compliance with all Hazardous Materials Laws and does not expose the License Area or neighboring property to any meaningful risk of contamination or damage or expose City to any liability therefor.
4856-7810-3510 v2 6
Item #5.4.
9.3 Remediation Obligations. If at any time during the Term, any contamination of the License Area by Hazardous Materials shall occur where such contamination is caused by the act or omission of Licensee or Licensee's Representatives (MLicensee's Contamination"), then Licensee, at Licensee's sole cost and expense, shall promptly and diligently remove such Hazardous Materials from the License Area or the groundwater underlying the License Area to the extent required to comply with applicable Hazardous Materials Laws. Licensee shall not take any required remedial action in response to any Licensee's Contamination in or about the License Area or enter into any settlement agreement, consent, decree or other compromise in respect to any claims relating to any Licensee's Contamination without first obtaining the prior written consent of City, which may be subject to conditions imposed by City as determined in City's sole discretion. Such prior written consent shall not be required to the extent the delay caused by the requirement to obtain consent may increase the damage to the License Area or the risk of harm to human health, safety or security caused by the Licensee Contamination. City and Licensee shall jointly prepare a remediation plan in compliance with all Hazardous Materials Laws and the provisions of this License. In addition to all other rights and remedies of City hereunder, if Licensee does not promptly and diligently take all steps to prepare and obtain all necessary approvals of a remediation plan for any Licensee's Contamination, and thereafter commence the required remediation of any Hazardous Materials released or discharged in connection with Licensee's Contamination within thirty (30) days after all necessary approvals and consents have been obtained, and thereafter continue to prosecute such remediation to completion in accordance with the approved remediation plan, then City, at its sole discretion, shall have the right, but not the obligation, to cause such remediation to be accomplished, and Licensee shall reimburse City within fifteen (15) business days of City's demand for reimbursement of all amounts reasonably paid by City (together with interest on such amounts at the highest lawful rate until paid}, when such demand is accompanied by proof of payment by City of the amounts demanded. Licensee shall promptly deliver to City copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the License Area as part of Licensee's remediation of any Licensee's Contamination. The foregoing notwithstanding, "Licensee's Contamination" shall not refer to or include any Hazardous Materials that were not clearly introduced to the License Area by Licensee or Licensee's Representatives. As an example, if lead dust or asbestos is found on the License Area, unless there is clear evidence that Licensee introduced those Hazardous Materials to the License Area, those Hazardous Materials shall not be considered "Licensee's Contamination," and it shall not be Licensee's responsibility to take remedial action relating to such Hazardous Materials. Moreover, Licensee shall not be responsible for any Hazardous Mater;als that were present in, on, or below the License Area before Licensee occupied the License Area.
9.4 City's Inspection Right. City shall have the right to inspect the License Area for compliance with environmental, safety, and occupational health laws and regulations, regardless of whether City is responsible for enforcing or complying with them. Licensee shall have no claim against City, or any officer, agent, employee, contractor or subcontractor of City by reason of entrance of such City officer, agent, employee, contractor or subcontractor onto the License Area, provided such inspection is undertaken as reasonably as possible so as not to disrupt or interfere with the Permitted Use. Except in the event of an emergency, City shall provide Licensee with reasonable prior notice and an opportunity to have a representative present at any inspection.
9.5 Hazardous Materials Indemnity. In addition to any other provisions of this License, Licensee shall, and does hereby agree, to indemnify and hold harmless City from any costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal resulting from Licensee's Contamination, giving rise to liability, civil or criminal, or any 4856-7810-3510 v2 7
Item #5.4.
other action by Licensee or its contractors, employees, agents, or assigns giving rise to responsibility under any Hazardous Materials Laws. Licensee's obligations hereunder shall apply whenever City incurs costs or liabilities for Licensee's Contamination as provided hereunder. This provision shall survive the expiration or termination of this License.
10. INDEMNITY AND WAIVER OF CLAIMS:
10.1 Licensee Indemnification. Licensee shall, to the fullest extent allowed by law, with respect to claims, liability, loss, damage, costs, or expenses, including reasonable attorney's and expert witness fees, awards, fines, penalties, or judgments, arising out of or relating to this Agreement (collectively "Losses") that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Licensee, defend, indemnify, and hold harmless City, its officials, officers, employees and agents ("City Related Parties"), except to the extent the Claims are attributable to City Related Parties' gross negligence or willful misconduct. Licensee shall defend City Related Parties as required by California Civil Code Section 2778, and with counsel reasonably acceptable to City Related Parties.
10.2 Waiver of Claims. Except in the event of City's or City Related Parties' own gross negligence or willful misconduct City shall not be liable to Licensee and Licensee waives all claims against City and City Related Parties for any injury or damage to any person or property occurring or incurred in connection with or in any way relating to the License Area from any cause.
Without limiting the foregoing, neither City nor any City Related Party shall be liable for and there shall be no abatement of Fees for (a) any damage to Licensee's property stored with or entrusted to any City Related Party, (b) loss of or damage to any property by theft or any other wrongful or illegal act, or (c) any injury or damage to person or property resulting from fire, explosion, water or rain that may blow onto the License Area from the streets or other surfaces or from any other place or resulting from dampness or any other cause whatsoever or from the acts or omissions of other occupants or other visitors to the License Area or from any other cause whatsoever, (d) any diminution or shutting off of light, air or view by any structure that may be erected on lands adjacent to the License Area or (e) any latent or other defects in the License Area. Licensee agrees that in no case shall City or any City Related Party or Licensee be responsible or liable to the other on any theory for any injury to such parties' business, loss of profits, loss of income or any other form of consequential, punitive or incidental damage, except as otherwise provided in Section 10.1.
10.3 Survival/No Impairment. The obligations of Licensee under this Section 10 shall survive any termination of this License. The foregoing indemnity obligations shall not relieve any insurance carrier of its obligations under any policies required to be carried by either party pursuant to this License, to the extent that such policies cover the peril or currents that results in the claims that is subject to the foregoing indemnity.
11. INSURANCE: Licensee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with Licensee's operation and use of the leased premises. The cost of such insurance shall be borne by Licensee.
11.1 Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as:
(i) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed 4856-7810-3510 v2 8
Item #5.4.
operations, property damage, bodily injury and personal & advertising injury with limits no less than $1 ,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (ii) Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property damage.
(iii) Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. (if Licensee has employees). (iv) Property insurance against all risks of loss to any Licensee improvements or betterments, at full replacement cost with no coinsurance penalty provision. (v) If Licensee maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
11.2 Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
(i) Additional Insured Status. City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Licensee including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Licensee's insurance (at least as broad as ISO Form CG 20 10.)
(ii) Primary Coverage. For any claims related to this contract, Licensee insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Licensee's insurance and shall not contribute with it. (iii) Notice of Cancellation. Licensee shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self-insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Licensee shall forthwith obtain and submit proof of substitute insurance. (iv) Waiver of Subrogation. Licensee hereby grants to City a waiver of any right to subrogation which any insurer of Licensee may acquire against City by virtue of the payment of any loss under such Insurance. Licensee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not City has received a waiver of subrogation endorsement from the insurer.
However, Licensee must obtain a workers' compensation endorsement waiving subrogation against City.
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(v) Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current AM. Best's rating of no less than A: VII, unless otherwise acceptable to City.
(vi) Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At the option of City, either: Licensee shall obtain coverage to reduce or eliminate such self-insured retentions as respects City, its officers, officials, employees, and volunteers; or Licensee shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
(vii) Verification of Coverage. Licensee shall furnish City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Licensee's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
(viii) Special Risks or Circumstances. City reserves the right to modify these requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
12. PROHIBITION AGAINST TRANSFERS. Licensee shall not assign, sublicense, hypothecate, or transfer this License or any interest therein directly or indirectly, by operation of law or otherwise. Any attempt to do so shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. The forgoing notwithstanding, Licensee may Transfer, with notice but without City's consent, to an entity (i) that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Licensee; (ii) in connection with a merger, consolidatlon, non-bankruptcy reorganization or government action; or (iii) in connection with the acquisition or transfer of all or substantially all of Licensee's stock or assets (each a "Permitted Transfer").
13. SURRENDER: Upon the expiration or earlier termination of the License, Licensee shall surrender the License Area clean, free of debris and, In substantially the same condition as at the commencement of the Term, reasonable wear and tear excepted, and clear of all liens and encumbrances created by any action or inaction of Licensee. City shall not be responsible for the value, preservation or safekeeping of Licensee's property that is not removed by Licensee from the License Area. Licensee shall pay City, upon demand, the expenses and storage charges incurred for any such property. If Licensee fails to remove Licensee's property from the License Area, upon the expiration or earlier termination of the License, City may deem all or any part of Licensee's property to be abandoned and, at City's option, title to Licensee's property shall. vest in City or City may dispose of Licensee's property in any manner City deems appropriate.
14. NONDISCRIMINATION. Consistent with City's policy that harassment and discrimination are unacceptable conduct, Licensee agrees that harassment or discrimination directed toward a City employee, or contractor, or employees, or Licensee's employee or contractor on the basis of race, religious creed, color, national origin, ancestry, handicap, 4856-7810-3510 v2 10
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disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Licensee agrees that any and all violations of this provision shall constitute a material breach of this Agreement.
15. SUBMISSION OF NOTICES. All notices, demands, requests, consents, or approvals which may or are required to be given by either party to the other shall be in writing and shall be deemed given upon (i) personal delivery or transmission by facsimile or electronic mail (unless delivery occurs on a Sunday or holiday, in which case notice will be deemed given on the next-succeeding business day), or (ii) refusal of delivery during normal business hours when sent by United States Certified or Registered Mail, postage prepaid, or (iii) one business day after deposit with a reputable overnight delivery service at the party's respective Notice Address(es) set forth in the Basic License Information. Any party may from time to time designate an alternate and/or additional address by notice.
16. CONDITION OF LICENSE AREA. The License Area is delivered to Licensee by City "as is, where is," and, as such, City makes no warranty as to such facilities and property either as to their usability generally or as to their fitness for any particular purpose. No promises of City to alter, remodel, repair or improve the Licemse Area and no representation respecting the condition of the license Area have been made by City to Licensee, except as expressly stated in this Agreement, and City shall have no obligation to repair or maintain License Area.
17. DEFAULT.
17 .1 Events of Default. The occurrence of any of the following shall constitute a "Default" by Licensee:
(i) Licensee fails to make any payment of Fees when due, if payment in full is not received by City within five (5) days after written notice that it is past due. (ii) Licensee violates the restrictions on Transfer set forth in Article 12.
(iii) Licensee ceases doing business as a going concern (provided, however, that Licensee may be open and operating for business with the general public on the days and during the times as the needs of Licensee's business dictates, in Licensee's sole discretion); makes an assignment for the benefit of creditors; is adjudicated an insolvent, files a petition (or files an answer admitting the material allegations of a petition) seeking relief under any state or federal bankruptcy or other statute, law or regulation affecting creditors' rights; all or substantially all of Licensee's assets are subject to judicial seizure or attachment and are not released within sixty (60) days, or Licensee consents to or acquiesces in the appointment of a trustee, receiver or liquidator for Licensee or for all or any substantial part of Licensee's assets. (iv) Licensee fails to perform or comply with any provision of this Agreement other than those described in (i) through (iii) above, and does not fully cure such failure within five (5) business days after notice to Licensee or, if such failure cannot be cured within such five (5) business-day period, Licensee fails within such five (5) business-day period to commence, and thereafter diligently proceed with, all actions necessary to cure such failure as soon as reasonably possible but in all events within sixty (60) days of such notice.
17.2 Remedies. Upon Default by Licensee, City shall, without further notice or demand of any kind to Licensee or to any other person, in addition to any other remedy City may 4856-7810-3510 v2 11
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have under this License and at law or in equity, have the ability to immediately terminate the License and Licensee's right to use the License Area. Upon notice of any such termination, Licensee shall vacate and discontinue its use of the License Area and City may take any and all actions to enforce Licensee's obligations.
17.3 City's Right to Perform Licensee's Obligations. If Licensee is in Default of any of its non-monetary obligations under this Agreement, in addition to the other rights and remedies of City provided herein, then City may at City's option, but without any obligation to do so and without further notice to Licensee, perform any such term, provision, covenant or condition or make any such payment and, except in the case of its gross negligence or willful misconduct, City by reason of doing so shall not be liable or responsible for any loss or damage thereby sustained by Licensee. If City performs any of Licensee's obligations hereunder in accordance with this Section 17.3, the reasonable costs and expense incurred or the payments so made shall be immediately be owed by Licensee to City, and Licensee shall promptly pay to City upon demand, as Additional Fees, the full amount thereof with interest thereon from the day of payment by City the lower of ten percent (10%) per annum, or the highest rate permitted by applicable law.
17.4 Severability. This Article 17 shall be enforceable to the maximum extent such enforcement is not prohibited by applicable Law, and the unenforceability of any portion thereof shall not thereby render unenforceable any other portion.
18. WAIVER OF RELOCATION ASSISTANCE. Except in the event of a taking of the License Area by or under the threat of eminent domain, Licensee acknowledges that upon the expiration er earlier termination of the Term it will not be a displaced person or business and therefore waives any and all rights, benefits or privileges of the California Relocation Assistance Law, California Government Code Sections 7260 et seq. or under any similar state or federal law, statute or ordinance now or hereinafter in effect.
19. MISCELLANEOUS.
19. 1 Entire Agreement. This Agreement, including all exhibits hereto, constitutes all of the covenants, conditions and agreements between and among the parties and shall supersede all prior correspondents, agreements and understandings, both verbal and written.
19.2 Amendments. This Agreement may be amended or modified only by a written instrument executed by City and Licensee.
19.3 Severability. If any provision of this Agreement, or its application to any person or circumstance, is held invalid by any court, the invalidity or inapplicability of such provision shall not affect any other provision of this Agreement or the application of such provision to any other person or circumstance, and the remaining portions of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as so modified by and in response to such invalidation would be unreasonable or grossly inequitable under all of the circumstances or would frustrate the fundamental purposes of this Agreement. Without limiting the forgoing, if any applicable federal or state law prevents or precludes compliance with any material term of this Agreement, the parties shall promptly modify, amend, or suspend this Agreement, or any portions of this Agreement, to the extent necessary to comply with such provisions in a manner which preseNes to the greatest extent possible the benefits to each of the parties to this Agreement before such conflict wit'1 federal or state law. 4856-7810-3510 v2 12
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19.4 Incorporation of Exhibits and Recitals. The exhibits and recitals to this Agreement are incorporated into this Agreement by this reference.
19.5 Broker's Commissions. City and Licensee each represents and warrants to the other that neither it nor its officers or agents nor anyone acting on its behalf has dealt with any real estate broker in the negotiating or making of this License. Each party agrees to indemnify and hold harmless the other from any claim or claims, and costs and expenses, including attorneys' fees, incurred by the indemnified party in conjunction with any such claim or claims of any other broker or brokers to a commission in connection with this License as a result of the actions of the indemnifying party.
19.6 Attorneys' Fees. In the event either party to this Agreement institutes an action, arbitration or proceeding to interpret or enforce any of the terms hereof, or to obtain money damages the prevailing party shall be entitled to recover from the other, in addition to costs and judgment as ordered by the court, its reasonable attorneys' fees, together with out-of-pocket expenses.
19. 7 Access by City. In addition to access provided by this License, City shall be allowed access to the License Area at all reasonable times throughout the term of this License, for any reasonable purpose upon prior written notice to Licensee. City will normally give Licensee a minimum of twenty-four (24) hours prior notice of an intention to enter the License Area, unless the entry is reasonably required on an emergency basis for safety, environmental, operations or security purposes. Licensee shall ensure that a telephone roster is maintained at all times for oncall persons representing Licensee who will be available on short notice, 24 hours a day, 365 days per year, and have authority to use all keys necessary to gain access to the License Area to facilitate entry in time of emergency. Licensee shall ensure that City has a current roster of such on-call personnel and their phone numbers. Licensee shall not change any existing locks, or attach any additional locks or similar devices to any door or window, without providing to City one set of keys therefor. All keys must be returned to City at the expiration or termination of this License. Licensee shall have no claim against City for exercise of its rights of access hereunder.
19.8 Asbestos Notification for Commercial Property Constructed Before 1979.
Licensee acknowledges that City has advised Licensee that, because of its age, the Building may contain asbestos-containing materials ("ACMs"). If Licensee undertakes any Alterations as may be permitted by Article 10, Licensee shall, in addition to complying with the requirements of Article 10, undertake the Alterations in a manner that avoids disturbing ACMs present in the Building. If ACMs are likely to be disturbed in the course of such work, Licensee shall encapsulate or remove the ACMs in accordance an approved asbestos-removal plan and otherwise in accordance with all applicable Environmental Laws, including giving all notices required by California Health & Safety Code Sections 25915-25919.7.
19.9 Lead Warning Statement. Licensee acknowledges that City has advised Licensee that buildings built before 1978 may contain lead-based paints ("LBP"). Lead from paint, paint chips and dust can pose health hazards if not managed properly. Subject to Article 10 of this License, Licensee may at its sole cost and expense, have a state certified LBP Inspector complete a LBP inspection and abatement and provide an abatement certification to City. City has no specific knowledge of the presence of lead-based paint in the License Area.
19.10 OFAC Certification. Licensee represents, warrants and covenants that:
(a) Licensee and its principals are not acting, and will not act, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States 4856-7810-3510 v2 13
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Treasury Department as a terrorist, "Specially Designated and Blocked Person" or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and (b) Licensee acknowledges that the breach of this representation, warranty and covenant by Licensee shall be an immediate Default under the Lease.
19.11 Certified Access Specialist Disclosure. In accordance with Civil Code Section 1938, City hereby discloses that the License Area has not undergone inspection by a Certified Access Specialist for purposes of determining whether the property has or does not meet all applicable construction related accessibility standards pursuant to Civil Code Section 55.53.
19.12 Rules and Regulations. Licensee shall faithfully observe and comply with the non-discriminatory rules and regulations attached hereto as Exhibit C and incorporated herein by this reference, as the same may be modified from time to time by City. Any additions or modifications to those rules shall be binding upon Licensee upon City's delivery of a copy to Licensee.
19.13 Further Assurances. All parties agree to cooperate fully and execute any and all supplementary documents and take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement.
19.14 Time. Time is of essence of every provision herein contained in this Agreement.
19.15 Captions. All captions and headings in this Agreement are for the purpose of reference and convenience and shall not limit or expand the provisions of this Agreement.
19.16 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. All actions or proceedings arising directly or indirectly under this Agreement shall be litigated in courts located within the County of Napa, State of California.
19.17 Documentation of Occupancy. Licensee acknowledges that pursuant to that certain Napa County Agreement No. 2402598 Purchase and Sale Agreement and Escrow Instructions dated March 6, 2024, as amended, a portion of the Fairgrounds property ("Property") on which the License Area is located was conveyed, on or about July 27, 2024, from the County of Napa to City. Accordingly, Licensee and City are entering into this Agreement to document the continued occupancy by Licensee of the License Area.
19.18 Authority. If Licensee is a corporation, partnership, trust, association or other entity, Licensee and each person executing this License on behalf of Licensee does hereby covenant and warrant that (a) Licensee is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Licensee has and is duly qualified to do business in California, (c) Licensee has full corporate, partnership, trust, association or other power and authority to enter into this License and to perform all Licensee's obligations hereunder, and (d) each person (and all of the persons if more than one signs) signing this License on behalf of Licensee is duly and validly authorized to do so.
Upon execution hereof and at City's request, Licensee shall provide City with written evidence substantiating the authority of the person(s) executing this Agreement on behalf of Licensee to bind Licensee to this Agreement.
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19.19 Counterparts. This Agreement may be executed in multiple counterpa('tS, each of which shall be deemed an original, but all of which together shall constitute one and fhe same instrument. •
IN WITNESS WHEREOF, City and Licensee have respedively signed and sealed this License as of the day and year first above written. [
LICENSEE:
CALISTOGA CARES! FOOD BANK INC., a
California 501 (c)(3)
President,
Suzan
By: .k-; Sha
Board
<'=-
of Directors
~
Date: ~ -- -r" ---cJ--- i) c;:).. '1
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CITY:
CITY OF CALISTOGA, a general law city
By:
Date:
By:
Laura Snideman
City Manager
Michelle Marchetta .Kenyon
City Attorney
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TUBBS BLDG
EXHIBIT A
LICENSE AREA
Exhibit A
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EXHIBITB
RULES AND REGULATIONS
Licensee shall faithfully observe and comply with the following Rules and Regulations.
City shall not be responsible to Licensee for the non-performance of any of said Rules and Regulations by or otherwise with respect to the acts or omissions of any other Licensees or occupants of the Calistoga Fairgrounds. In the event of any conflicts between the Rules and Regulations and other provisions of this License, the latter shall control.
1. City shall have the right to control and operate the public portions of the Calistoga Fairgrounds and the public facilities, as well as facilities furnished for the common use of the Licensees, in such manner as it deems best for the benefit of all licensees generally.
2. No advertisements, pictures or signs of any sort shall be displayed on or outside the License Area without the prior written consent of City. This prohibition shall include any portable signs or vehicles placed within the parking lot. Common Area or on streets adjacent thereto for the purpose of advertising or display. City shall have the right to remove any such unapproved item without notice and at Licensee's expense.
3. storage of forklift propane tanks, whether interior or exterior, shall be in secured and protected storage and enclosure approved by the local fire department and, if exterior, shall be located in areas specifically designated by City. Licensee shall protect electrical panels and building mechanical equipment from damage from forklift trucks.
4. Machinery, equipment and apparatus belonging to Licensee which causes noise or vibration that may be transmitted to the Cropp Building or other Calistoga Fairgrounds buildings to such a degree as to be objectionable to City or other Licensees or to cause harm to the Cropp Building, shall be placed and maintained by Licensee, at Licensee's expense, on vibration eliminators or other devices sufficient to eliminate the transmission of such noise and vibration.
Licensee shall cease using any such machinery which causes objectionable noise and vibration which cannot be sufficiently mitigated.
5. All goods, including materials used to store goods, delivered to the License Area shall be immediately moved into the License Area and shall not be left in parking or exterior loading areas overnight.
6. Licensee shall not store or permit the storage or placement of merchandise in or around the Common Area or property surrounding the Licensed Area. No displays or sales of merchandise shall be allowed in the parking lots, property surrounding the Licensed Area or other Common Area.
7. Licensee is responsible for the storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles stored behind screen enclosures at locations approved by City.
8. The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed and no foreign substances of any kind whatsoever shall be thrown therein. The expense of the repair of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by the Licensee who, or whose employees, agents, visitors or licensees shall have caused the same. 4856-7810-3510 v2 Exhibit 8
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9. licensee shall cooperate fully with City to ensure the effective operation of the Cropp Building's air conditioning systems, if applicable. If Licensee shall so use the License Area that noxious or objectionable fumes, vapors and/or odors are created, then Licensee shall provide proper ventilation equipment for the discharge of such fumes, vapors and odors so that they shall not enter into the air conditioning system or be discharged into other vents or flues of the building or annoy any of the other Licensees of the Calistoga Fairgrounds or adjacent properties. The design, location and installation of such equipment shall be subject to the City's approval.
10. All window coverings installed by Licensee and visible from the outside of the Cropp Building require the prior written approval of City.
11. The sashes, sash doors, skylights, windows and doors that reflect or admit light or air into the halls, passageways or other public places in the Cropp Building shall not be covered or obstructed by Licensee.
12. Licensee shall not overload the floor of the License Area.
13. No awnings or other projections over or around the windows or entrances of the License Area shall be installed by any Licensee without the prior written consent of City.
14. Licensee hereby acknowledges that City shall have no obligation to provide guard service or other security measures for the benefit of the License Area. Licensee hereby assumes all responsibility for the protection of Licensee and its agents, employees, contractors, invitees and guests, and the property thereof, from acts of third parties, including keeping doors locked and other means of entry to the License Area closed.
15. No auction, liquidation, fire sale, going out of business or bankruptcy sale shall be conducted in or about the license Area without the prior written consent of City. 16 No Licensee shall use or permit the use of any portion of the License Area for living quarters, sleeping apartments or lodging rooms.
17. Licensee, Licensee's agents, employees, contractors, licensees, or visitors shall not park any vehicles in driveways, service entrances, or areas posted as no parking.
18. If the License Area are or become infested with vermin as a result of the use or any misuse or neglect of the License Area by Licensee, its agents, employees, contractors, visitors or licensees, Licensee shall forthwith, at Licensee's expenses, cause the same to be exterminated from time to time to the satisfaction of City and shall employ such licensed exterminators as shall be approved in writing in advance by City.
19. Licensee shall not use the name of the Cropp Building for any purpose other than as the address of the business to be conducted by Licensee in the License Area, nor shall Licensee use any picture of the Cropp Building in its advertising, stationary or in any other manner without the prior written permission of City. City expressly reserves the right at any time to change said name without in any manner being liable to Licensee therefor.
20. Licensee, its employees and agents shall not loiter in or on the entrances, corridors, sidewalks, lobbies, courts, halls, stairways, elevators, vestibules, property around the Cropp Building or any Common Area for the purpose of smoking tobacco products or for any other Exhibit B
4856-7810-3510 v2
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purposes, nor in any way obstruct such areas, and shall use them only as a mean of ingress and egress from the License Area.
21. City reserves the right at any time to change or rescind any one or more of these Rules and Regulations, or to make such other and further reasonable Rules and Regulations as in City's judgment may from time to time be necessary for the management, safety, care and cleanliness of the License Area, Common Area and Fairgrounds Property, and for the preservation of good order therein, as well as for the convenience of other occupants and Licensees thereof. City may waive any one or more of these Rules and Regulations for the benefit of any particular Licensee, but no such waiver by City shall be construed as a waiver of such Rules and Regulations in favor of any other Licensee, nor prevent City from thereafter enforcing any such Rules and Regulations against any or all Licensees of the Fairgrounds Property.
Licensee shall be deemed to have read these Rules and Regulations and to have agreed to abide by them as a condition to its use of the License Area.
Exhibit B
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ENTRANCE
via Grant Rd
EXHIBIT A
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License Date:
City:
City's Address:
Licensee:
Licensee's Address:
License Area:
Length of Term:
Commencement Date:
Expiration Date:
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Taxes and Utilities:
Security Deposit:
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Exhibits
4856-7810-3510 v2
LICENSE AGREEMENT
BASIC LICENSE INFORMATION
Dated retroactively as of July 27, 2024, for reference purposes only
City of Calistoga,
a general law city
City of Calistoga
1232 Washington St.
Calistoga, CA 94515
Tel: (707) 942-2802
Attn: Citv Manager
Pacific Gas and Electric Company (PG&E)
PG&E
300 Lakeside Drive
Oakland, CA 94612
Tel: (559) 420-1527
Attn: Chris Taliaferro, Land Acquisition Supervisor
Approximately 5.25 acres at Calistoga Fairgrounds commonly known as the Covered Pavilion as illustrated in Exhibit A Approximately nine (9) months, subject to extension as described in Section 3.3
Retroactively, commencing on July 27, 2024
April 30, 2025
Monthly License Fee: $4,679.00 due on the first of each month Licensee shall pay all costs for services and utilities to the License Area, as defined herein. Licensee shall pay all taxes (including possessory interest taxes) levied on or against the License Area or its personal property.
None
Parking of vehicles and storage of equipment and materials to support a pole and transformer replacement project to improve public safety in Napa County.
A - License Area
8 - Rules and Regulations
1 Item #5.4.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is entered into this _ day of ---~ 2024 ("Agreement"), by and between the CITY OF CALISTOGA, a general law city ("City"), and PACIFIC GAS AND ELECTRIC (PG&E), a California Corporation ("Licensee").
1. GRANT OF LICENSE: In consideration of the stated conditions and agreements, City hereby grants permission to Licensee to carry out the Permitted Uses within the License Area as described herein below ("License").
2. LICENSE AREA:
2.1 License Area. Licensee may occupy those areas as specified in the Basic License Information, as depicted on Exhibit A attached hereto and incorporated herein ("License Area"). The License Area contains the square footage specified in the Basic License Information; provided, however, that any statement of square footage set forth in this License is an approximation which City and Licensee agree is reasonable and no economic terms based thereon shall be subject to revisions, whether or not the actual square footage is more or less.
2.2 Common Area. In addition to the License Area, and subject to the rules and regulations attached hereto as Exhibit B, Licensee shall have the non-exclusive right, in common with any other occupants of the Calistoga Fairgrounds to use the common areas ("Common Area"). The use of the Common Area shall be for the non-exclusive use of Licensee and Licensee's employees, agents, suppliers, customers and patrons, in common with City and all other occupants of the Calistoga Fairgrounds and such other persons to whom City has previously granted, or may hereinafter grant, rights of usage. Licensee shall not be entitled to use the Common Area for storage of goods, vehicles, refuse or any other items. City reserves the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time in its sole discretion. If Licensee shall use any of the Common Area for storage of any items, Licensee shall pay all fines and other charges imposed upon either City or Licensee by any fire, building or other regulatory body, and Licensee shall pay all costs incurred by City to clear that portion of the Common Area so used by Licensee and dispose of such items.
2.3 No Representations. Licensee accepts the License Area in "AS-IS" condition "WITH ALL FAULTS" without any representations or warranties by City, and with no obligation of licensor to make alterations or improvements to the License Area. Licensee acknowledges that neither City nor any agent of City has made any representation or warranty with respect to the suitability of the License Areas for the conduct of Licensee's business. City shall not be liable for any latent or patent defects in the License Area. If required for the conduct of Licensee's business, Licensee shall be responsible for requesting an inspection and obtaining a Certificate of Occupancy from the City of Calistoga. This shall include, but is not limited to, any necessary fire sprinkler upgrades, electrical service upgrades, compliance with the ADA (defined in Section 6) and any other requirements mandated by the Certificate of Occupancy inspection.
2.4 City's Reserved Rights. City hereby reserves the right, and at any time and from time to time, without the same constituting an actual or constructive eviction, to make alterations, additions, repairs, improvements to or in all or any part of the License Area and Common Area within and around the Calistoga Fairgrounds and to change the arrangement and/or location of entrances or passageways, doors and doorways, corridors, elevators, stairs, toilets and other public parts of the buildings and parking areas, drive isles, landscaping, curb cuts and paved and unpaved portions of the exterior Common Area. Without limiting the 4856-7810-3510 v2 2
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foregoing, City reserves the right from time to time to install, use, maintain, repair, relocate and replace pipes, ducts, conduits, wires, meters and equipment for services to the License Area or other part of the Calistoga Fairgrounds. In connection with any of the foregoing activities, City shall use reasonable efforts to minimize any interference with Licensee's use of the License Area and shall not, without the prior written approval of Licensee, (a) materially change the location, size or configuration of the License Area; or (b) do anything which would have a material and adverse effect on access to the License Area, or ingress and egress to the License Area. No rights to any view or to light or air over any property, whether belonging to City or any other person, are granted to Licensee by this License.
2.5 No Interest in Land Granted. Nothing herein shall be deemed to grant to Licensee any fee interest, leasehold, or other possessory interest in the Licensed Area or Calistoga Fairgrounds or any portion thereof, or any exclusive right or special status to negotiate or purchase. This Agreement grants a limited revocable license upon specified terms and no more.
3.1 Generally. Unless otherwise earlier terminated, the term of this License ("Term") shall commence on July 27, 2024 ("Commencement Date"), and terminate on April 30, 2025 ("Expiration Date"), unless terminated earlier as set forth in section 3.2 or extended as set forth in Section 3.3.
3.2 Early Termination. At any time during the Term, City may terminate the License by the giving of not less than thirty (30) days' prior written notice to the other in accordance with Article 15. Upon such early termination, the rights and obligations of the parties hereunder shall terminate, except for those obligations which, by their terms, survive the expiration or earlier termination of this Agreement.
3.3 Extension Options. Provided Licensee is not in default of this License, City may extend the Term of this License a maximum of three (3) times for a period of thirty (30) days each at the sole discretion of City's City Manager.
4. LICENSE FEES:
4.1 Base License Fee. The fee for use of the License Area during the Term shall be the amount specified in the Basic License Information. The License Fee shall be paid without prior notice or demand. The License Fee shall be paid to the City of Calistoga at 1232 Washington St., Calistoga, CA 94515 ahd sent to the attention of the Fairgrounds Director or such other place as City shall direct. If the Term ends on a day other than the last day of the calendar month, the License Fee for any such partial month shall be prorated at the rate of one-thirtieth of the monthly License Fee for each day of the period.
4.2 Condition Precedent. As a condition precedent to the effectiveness of this Agreement, on or before Licensee's execution of this Agreement, Licensee shall pay to City any unpaid Licensee Fees and Additional Fees accruing from and after August 1 through September 30, 2024.
4.3 Additional Fees. As used in this License, the term "Additional Fees" shall mean all sums of money that are due and payable by Licensee under the terms of this Agreement, other than the base License Fee. The term "Fees," as used herein, shall mean the License Fee 4856-7810-3510 V2 3
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and, Additional Fees and all other amounts payable hereunder from Licensee to City. Unless otherwise specified herein, all Fees shall be due and payable by Licensee on or before the date that is thirty (30) days after billing by City.
4.4 Intentionally omitted.
5. TAXES AND OPERATING EXPENSES:
5.1 Taxes
(a) Personal Property and Possessory Interest Taxes. Licensee shall pay all Taxes (as hereinafter defined) levied or imposed against the License Area or Licensee's personal property or trade fixtures placed by Licensee in or about the License Areas during the Term ("Personal Property Taxes"). In addition, if the interest created by this Licensee is subject to property taxation under the laws of the State of California, the party in whom the possessory interest is vested shall be subject to the payment of the taxes levied on such interest. This notice is included in this License pursuant to the requirements of Section 107.6 (a) of the Revenue and Taxation Code of the State of California.
(b) Payment. Licensee shall pay the Personal Property Taxes or possessory interest taxes in accordance with the instructions of the taxing entity. Licensee shall pay the Personal Property Taxes, if any, originally imposed upon City, upon City's election, either (a) annually within thirty (30) days after the date City provides Licensee with a statement setting forth in reasonable detail such Taxes, or (b) monthly in advance based on estimates provided by City based upon the previous year's tax bill. All Personal Property Taxes originally imposed upon City and payable by Licensee with respect to the License Area shall be prorated on a per diem basis for any partial tax year included in the Term. Licensee's obligation to pay Taxes during the last year of the Term shall survive the expiration or termination of this License.
5.2 Operating Expenses. All costs of management, operation, maintenance, insuring and repair of the (i) Common Area maintenance; and (ii) City's property insurance, if any, are "Operating Expenses". During the Term, City shall not assess Licensee any such Operating Expenses, unless the same were incurred as a result of the actions or inactions of Licensee, Licensee's invitees or anyone in the employ of Licensee, in which event such costs may be charged to Licensee as Additional Fees.
6. USE; COMPLIANCE WITH LAWS:
6.1 Use of License Area. Licensee may use the License Area as a material laydown and staging area; to park vehicles belonging to the Licensee, its employees and contractors; and to locate construction trailers, dumpsters, machinery, pallets, pole piles; equipment, materials, portable restrooms and construction equipment in support of PG&E's pole and transformer replacement projects ("Permitted Use") and for no other purposes without the express written consent of City. Licensee shall provide portable restrooms designated for employees and contractors of PG&E. No RV parking is allowed, and no individuals may spend the night on the Property, other than active, overnight security personnel, if any. City retains right to traverse and access the Property and Premises at all times. Licensee acknowledges that neither City nor any agent of City, has made any representation or warranty with respect to the suitability or fitness of the License Area for the conduct of Licensee's business. 4856-7810-3510 v2 4
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6.2 Compliance with Laws. Licensee shall comply with all laws, ordinances, rules, regulations and codes, of all municipal, county, state and federal authorities, including the Americans With Disabilities Act, as amended (42 U.S.C. Section 1201 et seq. [the "ADA"}) (collectively, "Laws") pertaining to Licensee's use and occupancy of the License Area and its Permitted Use. Licensee shall not commit, or suffer to be committed, any waste upon the License Area, or any public or private nuisance, or other act or thing that disturbs the quiet enjoyment of any other occupants or surrounding neighborhoods.
7. UTILITIES:
7.1 Payments for Utilities and Services. Licensor shall pay for electrical, gas, water, and sewer utility service through the various utility providers as required for normal use of the space. Licensee shall contract directly with and shall pay all charges for telephone, refuse collection, janitorial, pest control, security and monitoring services furnished to the License Area.
7.2 No Liability of City. Except in the case of City's gross negligence or willful misconduct, in no event shall City be liable or responsible for any loss, damage, expense or liability, including, without limitation, loss of business or any consequential damages, arising from any failure or inadequacy of any service or utility provided to the License Area, whether resulting from any change, failure, interference, disruption or defect in supply or character of the service or utility provided to the License Area, or arising from the partial or total unavailability of the service or utility to the License Area, from any cause whatsoever, or otherwise, nor shall any such failure, inadequacy, change, interference, disruption, defect or unavailability constitute an actual or constructive eviction of Licensee, or entitled Licensee to any abatement or diminution of License Fees or otherwise relieve Licensee from its obligations under this License.
8. MAINTENANCE AND REPAIR OF LICENSE AREA:
8.1 Maintenance and Repair by Licensee
8.1.1 Licensee Maintenance. Licensee shall, at its sole costs and expense, maintain the License Area in good repair and in a neat and clean condition (ordinary wear and tear, casualty and condemnation excepted) including making all necessary repairs and replacements as a result of any damage caused by Licensee's use of the License Area.
8.1.2 Licensee Repair. Licensee shall further, at its own costs and • expense, repair or restore any damage or injury ordinary wear and tear excepted to all or any part of the non-structural portions of the License Area and utility lines exclusively servicing the License Area caused by Licensee or Licensee's agents, employees, invitees, licensees, visitors or contractors, including but not limited to repairs or replacements necessitated by (i) Licensee's use of the License Area, and (ii) the moving of any property into or out of the License Area.
8.2 City Maintenance and Repair. Licensee hereby waives any and all rights under and benefits of subsection 1 of Section 1932, and Sections 1941 and 1942 of the California Civil Code or any similar or successor Laws now or hereby in effect. Licensee shall immediately give City written notice of the need for repair of the items for which City is responsible. If Licensee or Licensee's invitees or anyone in the employed or control of Licensee caused any damages necessitating such repair, then Licensee shall pay to City the cost thereof, immediately upon demand therefor. Except as otherwise expressly set forth in this License, Licensee waives any right to terminate this License or offset or abate Rent by reason of any failure of City to make repairs to the License Area or Building.
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9. ENVIRONMENTAL PROTECTION PROVISIONS:
9.1 Hazardous Materials. "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive, flammable, explosive, radioactive or corrosive, including, without limitation, petroleum, solvents, lead, acids, pesticides, paints, printing ink, PCBs, asbestos, materials commonly known to cause cancer or reproductive problems, and those materials, substances and/or wastes, including wastes which are or later become regulated by any local governmental authority in the state in which the License Area is located or the United States Government, including, but not limited to, substances defined as "hazardous substances," "hazardous materials," "toxic substances" or "hazardous wastes" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act; all environmental laws of the state where the Station is located, and any other environmental law, regulation or ordinance now existing or hereinafter enacted. "Hazardous Materials Laws" shall mean all present and future federal, state and local laws, ordinances and regulations, prudent industry practices, requirements of governmental entities and manufacturer's instructions relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, presence, disposal or transportation of any Hazardous Materials, including without limitation the laws, regulations and ordinances referred to in the preceding sentence.
9.2 Reportable Uses Required Consent. Except as permitted in this Section 9, Licensee hereby agrees that Licensee and Licensee's officers, employees, representatives, agents, contractors, subcontractors, successors, assigns, vendors, concessionaires, invitees and any other occupants of the License Area (for purposes of this Section 9, referred to collectively herein as "Licensee's Representatives") shall not cause or permit any Hazardous Materials to be used, generated, manufactured, refined, produced, processed, stored or disposed of, on, under or about the License Area or transport to or from the License Area without the express prior written consent of City, which consent may be limited in scope and predicated on strict compliance by Licensee of all applicable Hazardous Materials Laws and such other reasonable rules, regulations and safeguards as may be required by City (or any insurance carrier, environmental consultant or lender of City, or environmental consultant retained by any lender of City) in connection with using, generating, manufacturing, refining, producing, processing, storing or disposing of Hazardous Materials on, under or about the License Area. In connection therewith, Licensee shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by Licensee or any of Licensee's Representatives of Hazardous Materials on the License Area, including without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the License Area. The foregoing notwithstanding, Licensee may use ordinary and customary materials reasonably required to be used in the course of the Permitted Use, ordinary office supplies (copier, toner, liquid paper, glue, etc.), common household cleaning materials and gasoline and oil in vehicle tanks, so long as such use is in compliance with all Hazardous Materials Laws and does not expose the License Area or neighboring property to any meaningful risk of contamination or damage or expose City to any liability therefor.
9.3 Remediation Obligations. If at any time during the Term, any contamination of the License Area by Hazardous Materials shall occur where such contamination is caused by the act or omission of Licensee or Licensee's Representatives ("Licensee's Contamination"), then Licensee, at Licensee's sole cost and expense, shall promptly and diligently remove such Hazardous Materials from the License Area or the groundwater underlying the License Area to 4856-7810-351 O v2 6
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the extent required to comply with applicable Hazardous Materials Laws. Licensee shall not take any required remedial action in response to any Licensee's Contamination in or about the License Area or enter into any settlement agreement, consent, decree or other compromise in respect to any claims relating to any Licensee's Contamination without first obtaining the prior written consent of City, which may be subject to conditions imposed by City as determined in City's sole discretion. Such prior written consent shall not be required to the extent the delay caused by the requirement to obtain consent may increase the damage to the License Area or the risk of harm to human health, safety or security caused by the Licensee Contamination. City and Licensee shall jointly prepare a remediation plan in compliance with all Hazardous Materials Laws and the provisions of this License. In addition to all other rights and remedies of City hereunder, if Licensee does not promptly and diligently take all steps to prepare and obtain all necessary approvals of a remediation plan for any Licensee's Contamination, and thereafter commence the required remediation of any Hazardous Materials released or discharged in connection with Licensee's Contamination within thirty (30) days after all necessary approvals and consents have been obtained, and thereafter continue to prosecute such remediation to completion in accordance with the approved remediation plan, then City, at its sole discretion, shall have the right, but not the obligation, to cause such remediation to be accomplished, and Licensee shall reimburse City within fifteen (15) business days of City's demand for reimbursement of all amounts reasonably paid by City (together with interest on such amounts at the highest lawful rate until paid), when such demand is accompanied by proof of payment by City of the amounts demanded. Licensee shall promptly deliver to City copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the License Area as part of Licensee's remediation of any Licensee's Contamination. The foregoing notwithstanding, "Licensee's Contamination" shall not refer to or include any Hazardous Materials that were not clearly introduced to the License Area by Licensee or Licensee's Representatives. As an example, if lead dust or asbestos is found on the License Area, unless there is clear evidence that Licensee introduced those Hazardous Materials to the License Area, those Hazardous Materials shall not be considered "Licensee's Contamination," and it shall not be Licensee's responsibility to take remedial action relating to such Hazardous Materials. Moreover, Licensee shall not be responsible for any Hazardous Materials that were present in, on, or below the License Area before Licensee occupied the License Area.
9.4 City's Inspection Right. City shall have the right to inspect the License Area for compliance with environmental, safety, and occupational health laws and regulations, regardless of whether City is responsible for enforcing or complying with them. Licensee shall have no claim against City, or any officer, agent, employee, contractor or subcontractor of City by reason of entrance of such City officer, agent, employee, contractor or subcontractor onto the License Area, provided such inspection is undertaken as reasonably as possible so as not to disrupt or interfere with the Permitted Use. Except in the event of an emergency, City shall provide Licensee with reasonable prior notice and an opportunity to have a representative present at any inspection.
9.5 Hazardous Materials Indemnity. In addition to any other provisions of this License, Licensee shall, and does hereby agree, to indemnify and hold harmless City from any costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal resulting from Licensee's Contamination, giving rise to liability, civil or criminal, or any other action by Licensee or its contractors, employees, agents, or assigns giving rise to responsibility under any Hazardous Materials Laws. Licensee's obligations hereunder shall apply whenever City incurs costs or liabilities for Licensee's Contamination as provided hereunder. This provision shall survive the expiration or termination of this License. 4856-7810-3510 v2 7
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10. INDEMNITY AND WAIVER OF CLAIMS:
10.1 Licensee Indemnification. Licensee shall, to the fullest extent allowed by law, with respect to claims, liability, loss, damage, costs, or expenses, including reasonable attorney's and expert witness fees, awards, fines, penalties, or judgments, arising out of or relating to this Agreement (collectively "Losses") that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of Licensee, defend, indemnify, and hold harmless City, its officials, officers, employees and agents ("City Related Parties"), except to the extent the Claims are attributable to City Related Parties' gross negligence or willful misconduct. Licensee shall defend City Related Parties as required by California Civil Code Section 2778, and with counsel reasonably acceptable to City Related Parties.
10.2 Waiver of Claims. Except in the event of City's or City Related Parties' own gross negligence or willful misconduct City shall not be liable to Licensee and Licensee waives all claims against City and City Related Parties for any injury or damage to any person or property occurring or incurred in connection with or in any way relating to the License Area from any cause.
Without limiting the foregoing, neither City nor any City Related Party shall be liable for and there shall be no abatement of Fees for (a) any damage to Licensee's property stored with or entrusted to any City Related Party, (b) loss of or damage to any property by theft or any other wrongful or illegal act, or (c) any injury or damage to person or property resulting from fire, explosion, water or rain that may blow onto the License Area from the streets or other surfaces or from any other place or resulting from dampness or any other cause whatsoever or from the acts or omissions of other occupants or other visitors to the License Area or from any other cause whatsoever, (d) any diminution or shutting off of light, air or view by any structure that may be erected on lands adjacent to the License Area or (e) any latent or other defects in the License Area. Licensee agrees that in no case shall City or any City Related Party or Licensee be responsible or liable to the other on any theory for any injury to such parties' business, loss of profits, loss of income or any other form of consequential, punitive or incidental damage, except as otherwise provided in Section 10.1 .
10.3 Survival/No Impairment. The obligations of Licensee under this Section 10 shall survive any termination of this License. The foregoing indemnity obligations shall not relieve any insurance carrier of its obligations under any policies required to be carried by either party pursuant to this License, to the extent that such policies cover the peril or currents that results in the claims that is subject to the foregoing indemnity.
11. INSURANCE: Licensee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with Licensee's operation and use of the leased premises. The cost of such insurance shall be borne by Licensee. Licensee shall have the right to self-insure with respect to any of the insurance requirements required under this License, so long as such self-insurance complies with the scope, limits and other requirements of the policies described herein. Licensee shall submit a letter of self-insurance signed by a duly authorized representative evidencing that Licensee's self-insurance program is in full force and effect.
11.1 Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as:
(i) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less 4856-7810-351 O v2 8
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than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (ii) Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property damage.
(iii) Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. (if Licensee has employees). (iv) Property insurance against all risks of loss to any Licensee improvements or betterments, at full replacement cost with no coinsurance penalty provision. (v) If Licensee maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
11.2 Other Insurance Provisions. The insurance policies are to contain, or be· endorsed to contain, the following provisions:
(i) Primary Coverage. For any claims related to this contract, Licensee insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects City, its officers, officials, employees, ·and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Licensee's insurance and shall not contribute with it. (ii) Notice of Cancellation. Licensee shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self-insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Licensee shall forthwith obtain and submit proof of substitute insurance. (iii) Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At the option of City, either: Licensee shall obtain coverage to reduce or eliminate such self-insured retentions as respects City, its officers, officials, employees, and volunteers; or Licensee shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
(iv) Verification of Coverage. Licensee shall furnish City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsement~ to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Licensee's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
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(v) Special Risks or Circumstances. City reserves the right to modify these requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
12. PROHIBITION AGAINST TRANSFERS. Licensee shall not assign, sublicense, hypothecate, or transfer this License or any interest therein directly or indirectly, by operation of law or otherwise. Any attempt to do so shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. The forgoing notwithstanding, Licensee may Transfer, with notice but without City's consent, to an entity (i) that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Licensee; (ii) in connection with a merger, consolidation, non-bankruptcy reorganization or government action; or (iii) in connection with the acquisition or transfer of all or substantially all of Licensee's stock or assets (each a "Permitted Transfer").
13. SURRENDER: Upon the expiration or earlier termination of the License, Licensee shall surrender the License Area clean, free of debris and, in substantially the same condition as at the commencement of the Term, reasonable wear and tear excepted, and clear of all liens and encumbrances created by any action or inaction of Licensee. City shall not be responsible for the value, preservation or safekeeping of Licensee's property that is not removed by Licensee from the License Area. Licensee shall pay City, upon demand, the expenses and storage charges incurred for any such property. If Licensee fails to remove Licensee's property from the License Area, upon the expiration or earlier termination of the License, City may deem all or any part of Licensee's property to be abandoned and, at City's option, title to Licensee's property shall vest in City or City may dispose of Licensee's property in any manner City deems appropriate.
14. NONDISCRIMINATION. Consistent with City's policy that harassment and discrimination are unacceptable conduct, Licensee agrees that harassment or discrimination directed toward a City employee, or contractor, or employees, or Licensee's employee or contractor on the basis of race, religious creed, color, national origin, ancestry, handicap, disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Licensee agrees that any and all violations of this provision shall constitute a material breach of this Agreement.
15. SUBMISSION OF NOTICES. All notices, demands, requests, consents, or approvals which may or are required to be given by either party to the other shall be in writing and shall be deemed given upon (i) personal delivery or transmission by facsimile or electronic mail (unless delivery occurs on a Sunday or holiday, in which case notice will be deemed given on the next-succeeding business day}, or (ii) refusal of delivery during normal business hours when sent by United States Certified or Registered Mail, postage prepaid, or (iii) one business day after deposit with a reputable overnight delivery service at the party's respective Notice Address(es) set forth in the Basic License Information. Any party may from time to time designate an alternate and/or additional address by notice.
16. CONDITION OF LICENSE AREA. The License Area is delivered to Licensee by City "as is, where is," and, as such, City makes no warranty as to such facilities and property either as to their usability generally or as to their fitness for any particular purpose. No promises of City to alter, remodel, repair or improve the License Area and no representation respecting the condition of the License Area have been made by City to Licensee, except as expressly stated in this Agreement, and City shall have no obligation to repair or maintain License Area. 4856-7810-3510 v2 10
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17. DEFAULT.
17.1 Events of Default. The occurrence of any of the following shall constitute a "Default" by Licensee:
(i) Licensee fails to make any payment of Fees when due, if payment in full is not received by City within five (5) days after written notice that it is past due. (ii) Licensee violates the restrictions on Transfer set forth in Article 12.
(iii) Licensee ceases doing business as a going concern (provided, however, that Licensee may be open and operating for business with the general public on the days and during the times as the needs of Licensee's business dictates, in Licensee's sole discretion); makes an assignment for the benefit of creditors; is adjudicated an insolvent, files a petition (or files an answer admitting the material allegations of a petition) seeking relief under any state or federal bankruptcy or other statute, law or regulation affecting creditors' rights; all or substantially all of Licensee's assets are subject to judicial seizure or attachment and are not released within sixty (60) days, or Licensee consents to or acquiesces in the appointment of a trustee, receiver or liquidator for Licensee or for all or any substantial part of Licensee's assets. (iv) Licensee fails to perform or comply with any provision of this Agreement other than those described in (i) through (iii) above, and does not fully cure such failure within five (5) business days after notice to Licensee or, if such failure cannot be cured within such five (5) business-day period, Licensee fails within such five (5) business-day period to commence, and thereafter diligently proceed with, all actions necessary to cure such failure as soon as reasonably possible but in all events within sixty (60) days of such notice.
17.2 Remedies. Upon Default by Licensee, City shall, without further notice or demand of any kind to Licensee or to any other person, in addition to any other remedy City may have under this License and at law or in equity, have the ability to immediately terminate the License and Licensee's right to use the License Area. Upon notice of any such termination, Licensee shall vacate and discontinue its use of the License Area and City may take any and all actions to enforce Licensee's obligations.
17.3 City's Right to Perform Licensee's Obligations. If Licensee is in Default of any of its non-monetary obligations under this Agreement, in addition to the other rights and remedies of City provided herein, then City may at City's option, but without any obligation to do so and without further notice to Licensee, perform any such term, provision, covenant or condition or make any such payment and, except in the case of its gross negligence or willful misconduct, City by reason of doing so shall not be liable or responsible for any loss or damage thereby sustained by Licensee. If City performs any of Licensee's obligations hereunder in accordance with this Section 17.3, the reasonable costs and expense incurred or the payments so made shall be immediately be owed by Licensee to City, and Licensee shall promptly pay to City upon demand, as Additional Fees, the full amount thereof with interest thereon from the day of payment by City the lower of ten percent ( 10%) per annum, or the highest rate permitted by applicable law. 17 .4 Severability. This Article 17 shall be enforceable to the maximum extent such enforcement is not prohibited by applicable Law, and the unenforceability of any portion thereof shall not thereby render unenforceable any other portion. 4856-7810-3510 v2 11
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18. WAIVER OF RELOCATION ASSISTANCE. Except in the event of a taking of the License Area by or under the threat of eminent domain, Licensee acknowledges that upon the expiration or earlier termination of the Term it will not be a displaced person or business and therefore waives any and all rights, benefits or privileges of the California Relocation Assistance Law, California Government Code Sections 7260 et seq. or under any similar state or federal law, statute or ordinance now or hereinafter in effect.
19. MISCELLANEOUS.
19.1 Entire Agreement. This Agreement, including all exhibits hereto, constitutes all of the covenants, conditions and agreements between and among the parties and shall supersede all prior correspondents, agreements and understandings, both verbal and written.
19.2 Amendments. This Agreement may be amended or modified only by a written instrument executed by City and Licensee.
19.3 Severability. If any provision of this Agreement, or its application to any person or circumstance, is held invalid by any court, the invalidity or inapplicability of such provision shall not affect any other provision of this Agreement or the application of such provision to any other person or circumstance, and the remaining portions of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as so modified by and in response to such invalidation would be unreasonable or grossly inequitable under all of the circumstances or would frustrate the fundamental purposes of this Agreement. Without limiting the forgoing, if any applicable federal or state law prevents or precludes compliance with any material term of this Agreement, the parties shall promptly modify, amend, or suspend this Agreement, or any portions of this Agreement, to the extent necessary to comply with such provisions in a manner which preserves to the greatest extent possible the benefits to each of the parties to this Agreement before such conflict with federal or state law.
19.4 Incorporation of Exhibits and Recitals. The exhibits and recitals to this Agreement are incorporated into this Agreement by this reference.
19.5 Broker's Commissions. City and Licensee each represents and warrants to the other that neither it nor its officers or agents nor anyone acting on its behalf has dealt with any real estate broker in the negotiating or making of this License. Each party agrees to indemnify and hold harmless the other from any claim or claims, and costs and expenses, including attorneys' fees, incurred by the indemnified party in conjunction with any such claim or claims of any other broker or brokers to a commission in connection with this License as a result of the actions of the indemnifying party.
19.6 Attorneys' Fees. In the event either party to this Agreement institutes an action, arbitration or proceeding to interpret or enforce any of the terms hereof, or to obtain money damages the prevailing party shall be entitled to recover from the other, in addition to costs and judgment as ordered by the court, its reasonable attorneys' fees, together with out-of-pocket expenses.
19. 7 Access by City. In addition to access provided by this License, City shall be allowed access to the License Area at all reasonable times throughout the term of this License, for any reasonable purpose upon prior written notice to Licensee. City will normally give Licensee a minimum of twenty-four (24) hours prior notice of an intention to enter the License Area, unless 4856-7810-3510 v2 12
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the entry is reasonably required on an emergency basis for safety, environmental, operations or security purposes. Licensee shall ensure that a telephone roster is maintained at all times for oncall persons representing Licensee who will be available on short notice, 24 hours a day, 365 days per year, and have authority to use all keys necessary to gain access to the License Area to facilitate entry in time of emergency. Licensee shall ensure that City has a current roster of such on-call personnel and their phone numbers. Licensee shall not change any existing locks, or attach any additional locks or similar devices to any door or window, without providing to City one set of keys therefor. All keys must be returned to City at the expiration or termination of this License. Licensee shall have no claim against City for exercise of its rights of access hereunder.
19.8 Asbestos Notification for Commercial Property Constructed Before 1979.
Licensee acknowledges that City has advised Licensee that, because of its age, the Building may contain asbestos-containing materials ("ACMs"). If Licensee undertakes any Alterations as may be permitted by Article 10, Licensee shall, in addition to complying with the requirements of Article 10, undertake the Alterations in a manner that avoids disturbing AC Ms present in the Building. If ACMs are likely to be disturbed in the course of such work, Licensee shall encapsulate or remove the ACMs in accordance an approved asbestos-removal plan and otherwise in accordance with all applicable Environmental Laws, including giving all notices required by California Health & Safety Code Sections 25915-25919.7.
19.9 Lead Warning Statement. Licensee acknowledges that City has advised Licensee that buildings built before 1978 may contain lead-based paints ("LBP"). Lead from paint, paint chips and dust can pose health hazards if not managed properly. Subject to Article 10 of this License, Licensee may at its sole cost and expense, have a state certified LBP Inspector complete a LBP inspection and abatement and provide an abatement certification to City. City has no specific knowledge of the presence of lead-based paint in the License Area.
19.10 OFAC Certification. Licensee represents, warrants and covenants that:
(a) Licensee and its principals are not acting, and will not act, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States Treasury Department as a terrorist, "Specially Designated and Blocked Person" or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and (b) Licensee acknowledges that the breach of this representation, warranty and covenant by Licensee shall be an immediate Default under the Lease.
19.11 Certified Access Specialist Disclosure. In accordance with Civil Code Section 1938, City hereby discloses that the License Area has not undergone inspection by a Certified Access Specialist for purposes of determining whether the property has or does not meet all applicable construction related accessibility standards pursuant to Civil Code Section 55.53.
19.12 Rules and Regulations. Licensee shall faithfully observe and comply with the non-discriminatory rules and regulations attached hereto as Exhibit B and incorporated herein by this reference, as the same may be modified from time to time by City. Any additions or modifications to those rules shall be binding upon Licensee upon City's delivery of a copy to Licensee.
19.13 Further Assurances. All parties agree to cooperate fully and execute any and all supplementary documents and take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement. 4856-7810-3510 v2 13
Item #5.4.
19.14 Time. Time is of essence of every provision herein contained in this Agreement.
19.15 Captions. All captions and headings in this Agreement are for the purpose of reference and convenience and shall not limit or expand the provisions of this Agreement.
19.16 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. All actions or proceedings arising directly or indirectly under this Agreement shall be litigated in courts located within the County of Napa, State of California.
19.17 Documentation of Occupancy. Licensee acknowledges that pursuant to that certain Napa County Agreement No. 2402598 Purchase and Sale Agreement and Escrow Instructions dated March 6, 2024, as amended, a portion of the Fairgrounds property ("Property") on which the License Area is located was conveyed, on or about July 27, 2024, from the County of Napa to City. Accordingly, Licensee and City are entering into this Agreement to document the continued occupancy by Licensee of the License Area.
19.18 Authority. If Licensee is a corporation, partnership, trust, association or other entity, Licensee and each person executing this License on behalf of Licensee does hereby covenant and warrant that (a) Licensee is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Licensee has and is duly qualified to do business in California, (c) Licensee has full corporate, partnership, trust, association or other power and authority to enter into this License and to perform all Licensee's obligations hereunder, and (d) each person (and all of the persons if more than one signs) signing this License on behalf of Licensee is duly and validly authorized to do so.
Upon execution hereof and at City's request, Licensee shall provide City with written evidence substantiating the authority of the person(s) executing this Agreement on behalf of Licensee to bind Licensee to this Agreement.
19.19 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Licensee have respectively signed and sealed this License as of the day and year first above written.
LICENSEE:
PG&E, a California corporation
E-SIGNED by Chris Taliaferro
By: ____ o=n 2_0_24_-o_9_-1_1_22_:1_5_:4_1 _G_MT ___ _
Name: Chris Taliaferro
Title: Land Acquisition Supervisor
4856-7810-3510 v2 14
CITY:
CITY OF CALISTOGA, a general law city
By:
Date:
Laura Snideman
City Manager
Item #5.4.
4856-7810-3510 v2 15
Approved as to form:
By:
Michelle Marchetta Kenyon
City Attorney
Item #5.4.
4856-7810-3510 v2
EXHIBIT A - THE PREMISES Ii ~GCESS AREA
PG&E CONTRACTOR YARD
TffE PREHlSES
UCENSEAREA
APPROXIMATELY
5.25 ACRES
Exhibit A
Item #5.4.
EXHIBIT B
RULES AND REGULATIONS
Licensee shall faithfully observe and comply with the following Rules and Regulations.
City shall not be responsible to Licensee for the non-performance of any of said Rules and Regulations by or otherwise with respect to the acts or omissions of any other Licensees or occupants of the Calistoga Fairgrounds. In the event of any conflicts between the Rules and Regulations and other provisions of this License, the latter shall control.
1. City shall have the right to control and operate the public portions of the Calistoga Fairgrounds and the public facilities, as well as facilities furnished for the common use of the Licensees, in such manner as it deems best for the benefit of all licensees generally.
2. No advertisements, pictures or signs of any sort shall be displayed on or outside the License Area without the prior written consent of City. This prohibition shall include any portable signs or vehicles placed within the parking lot, Common Area or on streets adjacent thereto for the purpose of advertising or display. City shall have the right to remove any such unapproved item without notice and at Licensee's expense.
3. Storage of forklift propane tanks, whether interior or exterior, shall be in secured and protected storage and enclosure approved by the local fire department and, if exterior, shall be located in areas specifically designated by City. Licensee shall protect electrical panels and building mechanical equipment from damage from forklift trucks.
4. Machinery, equipment and apparatus belonging to Licensee which causes noise or vibration that may be transmitted to the Calistoga Fairgrounds buildings and structures to such a degree as to be objectionable to City or other Licensees or to cause harm to the buildings or structures, shall be placed and maintained by Licensee, at Licensee's expense, on vibration eliminators or other devices sufficient to eliminate the transmission of such noise and vibration.
Licensee shall cease using any such machinery which causes objectionable noise and vibration which cannot be sufficiently mitigated.
5. All goods, including materials used to store goods, delivered to the License Area shall be immediately moved into the License Area and shall not be left in parking or exterior loading areas overnight.
6. Licensee shall not store or permit the storage or placement of merchandise in or around the Common Area or property surrounding the Licensed Area.
7. Licensee is responsible for the storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles stored behind screen enclosures at locations approved by City.
8. Licensee hereby acknowledges that City shall have no obligation to provide guard service or other security measures for the benefit of the License Area or Building. Licensee hereby assumes all responsibility for the protection of Licensee and its agents, employees, contractors, invitees and guests, and the property thereof, from acts of third parties, including keeping doors locked and other means of entry to the License Area closed. 4856-781 0-351 0 v2 Exhibit B
Item #5.4.
9. No auction, liquidation, fire sale, going out of business or bankruptcy sale shall be conducted in or about the License Area without the prior written consent of City.
10. No Licensee shall use or permit the use of any portion of the License Area for living quarters, sleeping apartments or lodging rooms.
11. Licensee, Licensee's agents, employees, contractors, licensees, or visitors shall not park any vehicles in driveways, service entrances, or areas posted as no parking.
12. If the License Area are or become infested with vermin as a result of the use or any misuse or neglect of the License Area by Licensee, its agents, employees, contractors, visitors or licensees, Licensee shall forthwith, at Licensee's expenses, cause the same to be exterminated from time to time to the satisfaction of City and shall employ such licensed exterminators as shall be approved in writing in advance by City.
13. Licensee, its employees and agents shall not loiter in or on the entrances, corridors, sidewalks, lobbies, courts, halls, stairways, elevators, vestibules, property around the License Area or any Common Area for the purpose of smoking tobacco products or for any other purposes, nor in any way obstruct such areas, and shall use them only as a mean of ingress and egress from the License Area.
14. City reserves the right at any time to change or rescind any one or more of these Rules and Regulations, or to make such other and further reasonable Rules and Regulations as in City's judgment may from time to time be necessary for the management, safety, care and cleanliness of the License Area and Common Area and for the preservation of good order therein, as well as for the convenience of other occupants and Licensees thereof. City may waive any one or more of these Rules and Regulations for the benefit of any particular Licensee, but no such waiver by City shall be construed as a waiver of such Rules and Regulations in favor of any other Licensee, nor prevent City from thereafter enforcing any such Rules and Regulations against any or all Licensees of the Calistoga Fairgrounds. Licensee shall be deemed to have read these Rules and Regulations and to have agreed to abide by them as a condition to its use of the License Area.
Exhibit B
4856-781 0-351 0 v2
Item #5.4.
License Date:
City:
City's Address:
Licensee:
Licensee's Address:
License Area:
Length of Term:
Commencement Date:
Expiration Date:
License Fee:
Security Deposit:
Permitted Use:
Brokers:
Exhibits
4856-7810-3510 v2
LICENSE AGREEMENT
BASIC LICENSE INFORMATION
Dated retroactively as of July 27, 2024, for reference purposes only
City of Calistoga,
a general law city
City of Calistoga
1232 Washington St.
Calistoga, CA 94515
Tel: (707) 942-2802
Attn: City Manager
Calistoga Art Center
Calistoga Art Center
P.O. Box 197
Calistoga, CA 94515
Tel: (415) 902-0644
Attn: Babette Pinsky
The Cropp Building located on the Calistoga Fairgrounds property at 1435 North Oak Street as illustrated in Exhibit A
Nine (9) months, subject to termination and extension as described in Sections 3.2 and 3.3
Retroactively, commencing on July 27, 2024
April 30, 2025
Monthly License Fee: $350.00 due on the first of each month None
Art Center
None
A - License Area
B - Rules and Regulations
1 Item #5.4.
LICENSE AGREEMENT
THIS LICENSE AGREEMENT is entered into this _ day of ____ , 2024 ("Agreemenf'), by and between the CITY OF CALISTOGA, a general law city ("City"), and CALISTOGA ART CENTER, a California 501 (c)(3) non-profit organization ("Licensee").
1. GRANT OF LICENSE: In consideration of the stated conditions and agreements, City hereby grants permission to Licensee to carry out the Permitted Uses within the License Area as described herein below ("License").
2. LICENSE AREA:
2.1 License Area. Licensee may occupy those areas as specified in the Basic License Information, as depicted on Exhibit A attached hereto and incorporated herein ("License Area"). The License Area has the address specified in the Basic License Information.
2.2 Common Area. In addition to the License Area, and subject to the rules and regulations attached hereto as Exhibit B, Licensee shall have the non-exclusive right, in common with any other occupants of the Fairgrounds Property to use the common areas ("Common Area"). The use of the Common Area shall be for the non-exclusive use of Licensee and Licensee's employees, agents, suppliers, customers and patrons, in common with City and all other occupants of the Calistoga Fairgrounds and such other persons to whom City has previously granted, or may hereinafter grant, rights of usage. Licensee shall not be entitled to use the Common Area for storage of goods, vehicles, refuse or any other items. City reserves the right to alter, modify, enlarge, diminish, reduce or eliminate the Common Areas from time to time in its sole discretion. If Licensee shall use any of the Common Area for storage of any items, Licensee shall pay all fines and other charges imposed upon either City or Licensee by any fire, building or other regulatory body, and Licensee shall pay all costs incurred by City to clear that portion of the Common Area so used by Licensee and dispose of such items.
2.3 No Representations. Licensee accepts the License Area in "AS-IS" condition "WITH ALL FAULTS" without any representations or warranties by City, and with no obligation of City to make alterations or improvements to the License Area. Licensee acknowledges that neither City nor any agent of City has made any representation or warranty with respect to the suitability of the License Areas for the conduct of Licensee's business. City shall not be liable for any latent or patent defects in the License Area. If required for the conduct of Licensee's business, Licensee shall be responsible for requesting an inspection and obtaining a Certificate of Occupancy from the City of Calistoga. This shall include, but is not limited to, any necessary fire sprinkler upgrades, electrical service upgrades, compliance with the ADA (defined in Section 6) and any other requirements mandated by the Certificate of Occupancy inspection.
2.4 City's Reserved Rights. City hereby reserves the right, and at any time and from time to time, without the same constituting an actual or constructive eviction, to make alterations, additions, repairs, improvements to or in all or any part of the Building, and Common Area within and around the Building and to change the arrangement and/or location of entrances or passageways, doors and doorways, corridors, elevators, stairs, toilets and other public parts of the Building and parking areas, drive isles, landscaping, curb cuts and paved and unpaved portions of the exterior Common Area. Without limiting the foregoing, City reserves the right from time to time to install, use, maintain, repair, relocate and replace pipes, ducts, conduits, wires, meters and equipment for services to the License Area or other part of the Building which are above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas 4856-7810-3510 v2 2
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of the Building which are located within the License Area or located elsewhere in the Building. In connection with any of the foregoing activities, City shall use reasonable efforts to minimize any interference with Licensee's use of the License Area and shall not, without the prior written approval of Licensee, ( a) materially change the location, size or configuration of the License Area; or (b) do anything which would have a material and adverse effect on access to the License Area, or ingress and egress to the License Area. No rights to any view or to light or air over any property, whether belonging to City or any other person, are granted to Licensee by this License.
2.5 No Interest in Land Granted. Nothing herein shall be deemed to grant to Licensee any fee interest, leasehold, or other possessory interest in the property which the Building occupies, or any portion thereof, or any exclusive right or special status to negotiate or purchase. This Agreement grants a limited revocable license upon specified terms and no more.
3. TERM:
3.1 Generally. The term of this License ("Tenn") shall commence on July 27, 2024 ("Commencement Date"), and terminate on April 30, 2025 ("Expiration Date"}, unless terminated earlier as set forth in Section 3.2 or extended as set forth in Section 3.3.
3.2 Early Termination. At any time during the Term, City or Licensee may terminate the License by the giving of not less than thirty (30) days' prior written notice to the other in accordance with Article 15. Upon such early termination, the rights and obligations of the parties hereunder shall terminate, except for those obligations which, by their terms, survive the expiration or earlier termination of this Agreement.
3. 3 Extension Options. Provided Licensee is not in default of this License, City may extend the Term of this License a maximum of three (3) times for a period of thirty (30) days each at the sole discretion of City's City Manager.
4. LICENSE FEES:
4.1 Base License Fee. The fee for use of the License Area during the Term shall be the amount specified in the Basic License Information. The License Fee shall be paid without prior notice or demand. The License Fee shall be paid to the City of Calistoga at 1232 Washington St., Calistoga, CA 94515 and sent to the attention of the Fairgrounds Director or such other place as City shall direct. If the Term ends on a day other than the last day of the calendar month, the License Fee for any such partial month shall be prorated at the rate of one-thirtieth of the monthly License Fee for each day of the period.
4.2 Condition Precedent. As a condition precedent to the effectiveness of this Agreement, on or before Licensee's execution of this Agreement, Licensee shall pay to City any unpaid Licensee Fees and Additional Fees accruing from and after August 1 through August 31, 2024.
4.3 Additional Fees. As used in this License, the term "Additional Fees" shall mean all sums of money that are due and payable by Licensee under the terms of this Agreement, other than the base License Fee. The term "Fees," as used herein, shall mean the License Fee and, Additional Fees and all other amounts payable hereunder from Licensee to City. Unless otherwise specified herein, all Fees shall be due and payable by Licensee on or before the date that is thirty (30) days after billing by City.
4856-7810-3510 v2 3
Item #5.4.
4.4 Intentionally Omitted
5. TAXES AND OPERA TING EXPENSES:
5.1 Taxes
(a) Personal Property and Possessory Interest Taxes. Licensee shall pay all Taxes (as hereinafter defined) levied or imposed against the License Area or Licensee's personal property or trade fixturc5 placed by Licensee in or about thP. License Areas during the Term ("Personal Property Taxes"). In addition, if the interest created by this Licensee is subject to property taxation under the laws of the State of California, the party in whom the possessory interest is vested shall be subject to the payment of the taxes levied on such interest. This notice is included in this License pursuant to the requirements of Section 107.6 (a) of the Revenue and Taxation Code of the State of California.
(b) Payment. Licensee shall pay the Personal Property Taxes or possessory interest taxes in accordance with the instructions of the taxing entity. Licensee shall pay the Personal Property Taxes, if any, originally imposed upon City, upon City's election, either (a) annually within thirty (30) days after the date City provides Licensee with a statement setting forth in reasonable detail such Taxes, or (b) monthly in advance based on estimates provided by City based upon the previous year's tax bill. All Personal Property Taxes originally imposed upon City and payable by Licensee with respect to the License Area shall be prorated on a per diem basis for any partial tax year included in the Term. Licensee's obligation to pay Taxes during the last year of the Term shall survive the expiration or termination of this License.
5.2 Operating Expenses. All costs of management, operation, maintenance, insuring and repair of the (i) structural elements of the Building (including the roof); (ii) Common Area maintenance; and (iii) City's property insurance, if any, are "Operating Expenses". During the Term, City shall not assess Licensee any such Operating Expenses, unless the same were incurred as a result of the actions or inactions of Licensee, Licensee's invitees or anyone in the employ of Licensee, in which event such costs may be charged to Licensee as Additional Fees.
6. USE: COMPLIANCE WITH LAWS:
6.1 Use of License Area. Licensee may use the License Area to operate a community art center to expand and enrich the arts in the Napa Valley through education, experience, awareness and involvement ("Permitted Use") and for no other purposes without the express written consent of City. Licensee acknowledges that neither City nor any agent of City, has made any representation or warranty with respect to the suitability or fitness of the License Area for the conduct of Licensee's business.
6.2 Compliance with Laws. Licensee shall comply with all laws, ordinances, rules, regulations and codes, of all municipal, county, state and federal authorities, including the Americans With Disabilities Act, as amended (42 U.S.C. Section 1201 et seq. [the "ADA"]) (collectively, "Laws") pertaining to Licensee's use and occupancy of the License Area and its Permitted Use. Licensee shall not commit, or suffer to be committed, any waste upon the License Area, or any public or private nuisance, or other act or thing that disturbs the quiet enjoyment of any other occupants or surrounding neighborhoods.
4856-7810-3510 v2 4
Item #5.4.
7. UTILITIES:
7.1 Payments for Utilities and Services. City shall pay for electrical, gas, water, and sewer utility service through the various utility providers as required for normal use of the space. Licensee shall contract directly with and shall pay all charges for telephone, refuse collection, janitorial, pest control, security and monitoring services furnished to the License Area.
7.2 No Liability of City. Except in the case of City's gross negligence or willful misconduct, in no event shall City be liable or responsible for any loss, damage, expense or liability, including, without limitation, loss of business or any consequential damages, arising from any failure or inadequacy of any service or utility provided to the License Area, whether resulting from any change, failure, interference, disruption or defect in supply or character of the service or utility provided to the License Area, or arising from the partial or total unavailability of the service or utility to the License Area, from any cause whatsoever, or otherwise, nor shall any such failure, inadequacy, change, interference, disruption, defect or unavailability constitute an actual or constructive eviction of Licensee, or entitled Licensee to any abatement or diminution of License Fees or otherwise relieve Licensee from its obligations under this License.
8. MAINTENANCE AND REPAIR OF LICENSE AREA:
8.1 Maintenance and Repair by Licensee
8.1.1 Licensee Maintenance. Licensee shall, at its sole costs and expense, maintain the License Area in good repair and in a neat and clean condition (ordinary wear and tear, casualty and condemnation excepted) including making all necessary repairs and replacements as a result of any damage caused by Licensee's use of the License Area.
Licensee's repair and maintenance obligations include, without limitation, repairs to: (i) floor coverings; (ii) interior partitions; (iii) doors; (iv) interior side of demising walls; (v) fire life safety systems, including fire alarms and/or smoke detectors; (vi) kitchens; (vii) plumbing and similar facilities located within, or exclusively serving the License Area; (viii) telephone and data equipment and cabling; and (ix) landscaping around the Building where the License Area is located.
8.1.2 Licensee Repair. Licensee shall further, at its own costs and expense, repair or restore any damage or injury ordinary wear and tear excepted to all or any part of the non-structural portions of the License Area and utility lines exclusively servicing the License Area caused by Licensee or Licensee's agents, employees, invitees, licensees, visitors or contractors, including but not limited to repairs or replacements necessitated by (i) Licensee's use of the License Area, and (ii) the moving of any property into or out of the License Area.
8.2 City Maintenance and Repair. City shall maintain in good repair, provided such repairs are not necessitated by the actions or inactions of Licensee, Licensee's invitees or anyone in the employ or control of Licensee: (a) the structural elements of the Cropp building, including structural elements of exterior walls and foundations; and (b) the Common Area.
Licensee hereby waives any and all rights under and benefits of subsection 1 of Section 1932, and Sections 1941 and 1942 of the California Civil Code or any similar or successor Laws now or hereby in effect. Licensee shall immediately give City written notice of the need for repair of the items for which City is responsible. If Licensee or Licensee's invitees or anyone in the employed or control of Licensee caused any damages necessitating such repair, then Licensee shall pay to City the cost thereof, immediately upon demand therefor. Except as otherwise expressly set forth 4856-7810-3510 v2 5
Item #5.4.
in this License, Licensee waives any right to terminate this License or offset or abate Rent by reason of any failure of City to make repairs to the License Area or Building.
9. ENVIRONMENTAL PROTECTION PROVISIONS:
9.1 Hazardous Materials. "Hazardous Materials" shall mean any material, substance or waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive, flammable, explosive, radioactive or corrosive, including, without limitation, petroleum, solvents, lead, acids, pesticides, paints, printing ink, PCBs, asbestos, materials commonly known to cause cancer or reproductive problems, and those materials, substances and/or wastes, including wastes which are or later become regulated by any local governmental authority in the state in which the License Area is located or the United States Government, including, but not limited to, substances defined as "hazardous substances," "hazardous materials," "toxic substances" or "hazardous wastes" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.; the Resource Conservation and Recovery Act; all environmental laws of the state where the Station is located, and any other environmental law, regulation or ordinance now existing or hereinafter enacted. "Hazardous Materials Laws" shall mean all present and future federal, state and local laws, ordinances and regulations, prudent industry practices, requirements of governmental entities and manufacturer's instructions relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, presence, disposal or transportation of any Hazardous Materials, including without limitation the laws, regulations and ordinances referred to in the preceding sentence.
9.2 Reportable Uses Required Consent. Except as permitted in this Section 9, Licensee hereby agrees that Licensee and Licensee's officers, employees, representatives, agents, contractors, subcontractors, successors, assigns, vendors, concessionaires, invitees and any other occupants of the License Area (for purposes of this Section 9, referred to collectively herein as "Licensee's Representatives") shall not cause or permit any Hazardous Materials to be used, generated, manufactured, refined, produced, processed, stored or disposed of, on, under or about the License Area or transport to or from the License Area without the express prior written consent of City, which consent may be limited in scope and predicated on strict compliance by Licensee of all applicable Hazardous Materials Laws and such other reasonable rules, regulations and safeguards as may be required by City (or any insurance carrier, environmental consultant or lender of City, or environmental consultant retained by any lender of City) in connection with using, generating, manufacturing, refining, producing, processing, storing or disposing of Hazardous Materials on, under or about the License Area. In connection therewith, Licensee shall, at its own expense, procure, maintain in effect and comply with all conditions of any and all permits, licenses and other governmental and regulatory approvals required for the storage or use by Licensee or any of Licensee's Representatives of Hazardous Materials on the License Area, including without limitation, discharge of (appropriately treated) materials or wastes into or through any sanitary sewer serving the License Area. The foregoing notwithstanding, Licensee may use ordinary and customary materials reasonably required to be used in the course of the Permitted Use, ordinary office supplies (copier, toner, liquid paper, glue, etc.), common household cleaning materials and gasoline and oil in vehicle tanks, so long as such use is in compliance with all Hazardous Materials Laws and does not expose the License Area or neighboring property to any meaningful risk of contamination or damage or expose City to any liability therefor.
9.3 Remediation Obligations. If at any time during the Term, any contamination of the License Area by Hazardous Materials shall occur where such contamination is caused by 4856-7810-3510 v2 6
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the act or omission of Licensee or Licensee's Representatives ("Licensee's Contamination"), then Licensee, at Licensee's sole cost and expense, shall promptly and diligently remove such Hazardous Materials from the License Area or the groundwater underlying the License Area to the extent required to comply with applicable Hazardous Materials Laws. Licensee shall not take any required remedial action in response to any Licensee's Contamination in or about the License Area or enter into any settlement agreement, consent, decree or other compromise in respect to any claims relating to any Licensee's Contamination without first obtaining the prior written consent of City, which may be subject to conditions imposed by City as determined in City's sole discretion. Such prior written consent shall not be required to the extent the delay caused by the requirement to obtain consent may increase the damage to the License Area or the risk of harm to human health, safety or security caused by the Licensee Contamination. City and Licensee shall jointly prepare a remediation plan in compliance with all Hazardous Materials Laws and the provisions of this License. In addition to all other rights and remedies of City hereunder, if Licensee does not promptly and diligently take all steps to prepare and obtain all necessary approvals of a remediation plan for any Licensee's Contamination, and thereafter commence the required remediation of any Hazardous Materials released or discharged in connection with Licensee's Contamination within thirty (30) days after all necessary approvals and consents have been obtained, and thereafter continue to prosecute such remediation to completion in accordance with the approved remediation plan, then City, at its sole discretion, shall have the right, but not the obligation, to cause such remediation to be accomplished, and Licensee shall reimburse City within fifteen (15) business days of City's demand for reimbursement of all amounts reasonably paid by City (together with interest on such amounts at the highest lawful rate until paid), when such demand is accompanied by proof of payment by City of the amounts demanded. Licensee shall promptly deliver to City copies of hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials removed from the License Area as part of Licensee's remediation of any Licensee's Contamination. The foregoing notwithstanding, "Licensee's Contamination" shall not refer to or include any Hazardous Materials that were not clearly introduced to the License Area by Licensee or Licensee's Representatives. As an example, if lead dust or asbestos is found on the License Area, unless there is clear evidence that Licensee introduced those Hazardous Materials to the License Area, those Hazardous Materials shall not be considered "Licensee's Contamination," and it shall not be Licensee's responsibility to take remedial action relating to such Hazardous Materials. Moreover, Licensee shall not be responsible for any Hazardous Materials that were present in, on, or below the License Area before Licensee occupied the License Area.
9.4 City's Inspection Right. City shall have the right to inspect the License Area for compliance with environmental, safety, and occupational health laws and regulations, regardless of whether City is responsible for enforcing or complying with them. Licensee shall have no claim against City, or any officer, agent, employee, contractor or subcontractor of City by reason of entrance of such City officer, agent, employee, contractor or subcontractor onto the License Area, provided such inspection is undertaken as reasonably as possible so as not to disrupt or interfere with the Permitted Use. Except in the event of an emergency, City shall provide Licensee with reasonable prior notice and an opportunity to have a representative present at any inspection.
9.5 Hazardous Materials Indemnity. In addition to any other provisions of this License, Licensee shall, and does hereby agree, to indemnify and hold harmless City from any costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal resulting from Licensee's Contamination, giving rise to liability, civil or criminal, or any other action by Licensee or its contractors, employees, agents, or assigns giving rise to responsibility under any Hazardous Materials Laws. Licensee's obligations hereunder shall apply 4856-7810-3510 V2 7
Item #5.4.
whenever City incurs costs or liabilities for Licensee's Contamination as provided hereunder. This provision shall survive the expiration or termination of this License.
10. INDEMNITY AND WAIVER OF CLAIMS:
10.1 Licensee Indemnification. Licensee shall, to the fullest extent allowed by law, with respect to claims, liability, loss, damage, costs, or expenses, including reasonable attorney's and expert witness fees, awards, fines, penalties, or judgments, arising out of or relating to this Agreement (collectively "Losses") that arise out of, pP.rtain to, or relate to the negligence, recklessness, or willful misconduct of Licensee, defend, indemnify, and hold harmless City, its officials, officers, employees and agents ("City Related Parties"), except to the extent the Losses are attributable to City Related Parties' gross negligence or willful misconduct. Licensee shall defend City Related Parties as required by California Civil Code Section 2778, and with counsel reasonably acceptable to City Related Parties.
10.2 Waiver of Claims. Except in the event of City's or City Related Parties' own gross negligence or willful misconduct, City shall not be liable to Licensee and Licensee waives all claims against City and City Related Parties for any injury or damage to any person or property occurring or incurred in connection with or in any way relating to the License Area from any cause.
Without limiting the foregoing, neither City nor any City Related Party shall be liable for and there shall be no abatement of Fees for (a) any damage to Licensee's property stored with or entrusted to any City Related Party, (b) loss of or damage to any property by theft or any other wrongful or illegal act, or (c) any injury or damage to person or property resulting from fire, explosion, water or rain that may blow onto the License Area from the streets or other surfaces or from any other place or resulting from dampness or any other cause whatsoever or from the acts or omissions of other occupants or other visitors to the License Area or from any other cause whatsoever, (d) any diminution or shutting off of light, air or view by any structure that may be erected on lands adjacent to the License Area or (e) any latent or other defects in the License Area. Licensee agrees that in no case shall City or any City Related Party or Licensee be responsible or liable to the other on any theory for any injury to such parties' business, loss of profits, loss of income or any other form of consequential, punitive or incidental damage, except as otherwise provided in Section 10.1.
10.3 Survival/No Impairment. The obligations of Licensee under this Section 1 O shall survive any termination of this License. The foregoing indemnity obligations shall not relieve any insurance carrier of its obligations under any policies required to be carried by either party pursuant to this License, to the extent that such policies cover the peril or currents that results in the claims that is subject to the foregoing indemnity.
11. INSURANCE: Licensee shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with Licensee's operation and use of the leased premises. The cost of such insurance shall be borne by Licensee.
11 .1 Minimum Scope and Limit of Insurance. Coverage shall be at least as broad as:
(i) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate 4856-7810-3510 v2 8
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limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. (ii) Automobile Liability: Insurance Services Office Form CA 0001 covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property damage.
(iii) Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. (if Licensee has employees). (iv) Property insurance against all risks of loss to any Licensee improvements or betterments, at full replacement cost with no coinsurance penalty provision. (v) If Licensee maintains broader coverage and/or higher limits than the minimums shown above, City requires and shall be entitled to the broader coverage and/or higher limits maintained. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City.
11.2 Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
(i) Additional Insured Status. City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Licensee including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Licensee's insurance (at least as broad as ISO Form CG 20 10.)
(ii) Primary Coverage. For any claims related to this contract, Licensee insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of Licensee's insurance and shall not contribute with it. (iii) Notice of Cancellation. Licensee shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; (3) or the deductible or self-insured retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Licensee shall forthwith obtain and submit proof of substitute insurance. (iv) Waiver of Subrogation. Licensee hereby grants to City a waiver of any right to subrogation which any insurer of Licensee may acquire against City by virtue of the payment of any loss under such insurance. Licensee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not City has received a waiver of subrogation endorsement from the insurer.
However, Licensee must obtain a workers' compensation endorsement waiving subrogation against City.
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(v) Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than A: VII, unless otherwise acceptable to City.
(vi) Self-Insured Retentions. Self-insured retentions must be declared to and approved by City. At the option of City, either: Licensee shall obtain coverage to reduce or eliminate such self-insured retentions as respects City, its officers, officials, employees, and volunteers; or Licensee shall provide a financial guarantee satisfactory to City guaranteeing payment of losses and related investigations, claim administration, and rtefense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
(vii) Verification of Coverage. Licensee shall furnish City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive Licensee's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
(viii) Special Risks or Circumstances. City reserves the right to modify these requirements at any time, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
12. PROHIBITION AGAINST TRANSFERS. Licensee shall not assign, sublicense, hypothecate, or transfer this License or any interest therein directly or indirectly, by operation of law or otherwise. Any attempt to do so shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. The forgoing notwithstanding, Licensee may Transfer, with notice but without City's consent, to an entity (i) that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with Licensee; (ii) in connection with a merger, consolidation, non-bankruptcy reorganization or government action; or (iii) in connection with the acquisition or transfer of all or substantially all of Licensee's stock or assets (each a "Permitted Transfer'').
13. SURRENDER: Upon the expiration or earlier termination of the License, Licensee shall surrender the License Area clean, free of debris and, in substantially the same condition as at the commencement of the Term, reasonable wear and tear excepted, and clear of all liens and encumbrances created by any action or inaction of Licensee. City shall not be responsible for the value, preservation or safekeeping of Licensee's property that is not removed by Licensee from the License Area. Licensee shall pay City, upon demand, the expenses and storage charges incurred for any such property. If Licensee fails to remove Licensee's property from the License Area, upon the expiration or earlier termination of the License, City may deem all or any part of Licensee's property to be abandoned and, at City's option, title to Licensee's property shall vest in City or City may dispose of Licensee's property in any manner City deems appropriate.
14. NONDISCRIMINATION. Consistent with City's policy that harassment and discrimination are unacceptable conduct, Licensee agrees that harassment or discrimination directed toward a City employee, or contractor, or employees, or Licensee's employee or contractor on the basis of race, religious creed, color, national origin, ancestry, handicap, 4856-7810-3510 v2 10
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disability, marital status, pregnancy, sex, age, or sexual orientation will not be tolerated. Licensee agrees that any and all violations of this provision shall constitute a material breach of this Agreement.
15. SUBMISSION OF NOTICES. All notices, demands, requests, consents, or approvals which may or are required to be given by either party to the other shall be in writing and shall be deemed given upon (i) personal delivery or transmission by facsimile or electronic mail (unless delivery occurs on a Sunday or holiday, in which case notice will be deemed given on the next-succeeding business day), or (ii) refusal of delivery during normal business hours when sent by United States Certified or Registered Mail, postage prepaid, or (iii) one business day after deposit with a reputable overnight delivery service at the party's respective Notice Address(es) set forth in the Basic License Information. Any party may from time to time designate an alternate and/or additional address by notice.
16. CONDITION OF LICENSE AREA. The License Area is delivered to Licensee by City "as is, where is," and, as such, City makes no warranty as to such facilities and property either as to their usability generally or as to their fitness for any particular purpose. No promises of City to alter, remodel, repair or improve the License Area and no representation respecting the condition of the License Area have been made by City to Licensee, except as expressly stated in this Agreement, and City shall have no obligation to repair or maintain License Area.
17. DEFAULT.
17.1 Events of Default. The occurrence of any of the following shall constitute a "Defaulf' by Licensee:
(i) Licensee fails to make any payment of Fees when due, if payment in full is not received by City within five (5) days after written notice that it is past due. (ii) Licensee violates the restrictions on Transfer set forth in Article 12.
(iii) Licensee ceases doing business as a going concern (provided, however, that Licensee may be open and operating for business with the general public on the days and during the times as the needs of Licensee's business dictates, in Licensee's sole discretion); makes an assignment for the benefit of creditors; is adjudicated an insolvent, files a petition (or files an answer admitting the material allegations of a petition) seeking relief under any state or federal bankruptcy or other statute, law or regulation affecting creditors' rights; all or substantially all of Licensee's assets are subject to judicial seizure or attachment and are not released within sixty (60) days, or Licensee consents to or acquiesces in the appointment of a trustee, receiver or liquidator for Licensee or for all or any substantial part of Licensee's assets. (iv) Licensee fails to perform or comply with any provision of this Agreement other than those described in (i) through (iii) above, and does not fully cure such failure within five (5) business days after notice to Licensee or, if such failure cannot be cured within such five (5) business-day period, Licensee fails within such five (5) business-day period to commence, and thereafter diligently proceed with, all actions necessary to cure such failure as soon as reasonably possible but in all events within sixty (60) days of such notice.
17.2 Remedies. Upon Default by Licensee, City shall, without further notice or demand of any kind to Licensee or to any other person, in addition to any other remedy City may 4856-7810-3510 v2 11
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have under this License and at law or in equity, have the ability to immediately terminate the License and Licensee's right to use the License Area. Upon notice of any such termination, Licensee shall vacate and discontinue its use of the License Area and City may take any and all actions to enforce Licensee's obligations.
17.3 City's Right to Perform Licensee's Obligations. If Licensee is in Default of any of its non-monetary obligations under this Agreement, in addition to the other rights and remedies of City provided herein, then City may at City's option, but without any obligation to do so and without further notice to Licensee, perform any such term, provision, covenant or condition or make any such payment and, except in the case of its gross negligence or willful misconduct, City by reason of doing so shall not be liable or responsible for any loss or damage thereby sustained by Licensee. If City performs any of Licensee's obligations hereunder in accordance with this Section 17.3, the reasonable costs and expense incurred or the payments so made shall be immediately be owed by Licensee to City, and Licensee shall promptly pay to City upon demand, as Additional Fees, the full amount thereof with interest thereon from the day of payment by City the lower of ten percent (10%) per annum, or the highest rate permitted by applicable law.
17.4 Severability. This Article 17 shall be enforceable to the maximum extent such enforcement is not prohibited by applicable Law, and the unenforceability of any portion thereof shall not thereby render unenforceable any other portion.
18. WAIVER OF RELOCATION ASSISTANCE. Except in the event of a taking of the License Area by or under the threat of eminent domain, Licensee acknowledges that upon the expiration or earlier termination of the Term it will not be a displaced person or business and therefore waives any and all rights, benefits or privileges of the California Relocation Assistance Law, California Government Code Sections 7260 et seq. or under any similar state or federal law, statute or ordinance now or hereinafter in effect.
19. MISCELLANEOUS.
19 .1 Entire Agreement. This Agreement, including all exhibits hereto, constitutes all of the covenants, conditions and agreements between and among the parties and shall supersede all prior correspondents, agreements and understandings, both verbal and written.
19.2 Amendments. This Agreement may be amended or modified only by a written instrument executed by City and Licensee.
19.3 Severability. If any provision of this Agreement, or its application to any person or circumstance, is held invalid by any court, the invalidity or inapplicability of such provision shall not affect any other provision of this Agreement or the application of such provision to any other person or circumstance, and the remaining portions of this Agreement shall continue in full force and effect, unless enforcement of this Agreement as so modified by and in response to such invalidation would be unreasonable or grossly inequitable under all of the circumstances or would frustrate the fundamental purposes of this Agreement. Without limiting the forgoing, if any applicable federal or state law prevents or precludes compliance with any material term of this Agreement, the parties shall promptly modify, amend, or suspend this Agreement, or any portions of this Agreement, to the extent necessary to comply with such provisions in a manner which preserves to the greatest extent possible the benefits to each of the parties to this Agreement before such conflict with federal or state law. 4856-7810-3510 v2 12
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19.4 Incorporation of Exhibits and Recitals. The exhibits and recitals to this Agreement are incorporated into this Agreement by this reference.
19.5 Broker's Commissions. City and Licensee each represents and warrants to the other that neither it nor its officers or agents nor anyone acting on its behalf has dealt with any real estate broker in the negotiating or making of this License. Each party agrees to indemnify and hold harmless the other from any claim or claims, and costs and expenses, including attorneys' fees, incurred by the indemnified party in conjunction with any such claim or claims of any other broker or brokers to a commission in connection with this License as a result of the actions of the indemnifying party.
19.6 Attorneys' Fees. In the event either party to this Agreement institutes an action, arbitration or proceeding to interpret or enforce any of the terms hereof, or to obtain money damages the prevailing party shall be entitled to recover from the other, in addition to costs and judgment as ordered by the court, its reasonable attorneys' fees, together with out-of-pocket expenses.
19.7 Access by City. In addition to access provided by this License, City shall be allowed access to the License Area at all reasonable times throughout the term of this License, for any reasonable purpose upon prior written notice to Licensee. City will normally give Licensee a minimum of twenty-four (24) hours prior notice of an intention to enter the License Area, unless the entry is reasonably required on an emergency basis for safety, environmental, operations or security purposes. Licensee shall ensure that a telephone roster is maintained at all times for oncall persons representing Licensee who will be available on short notice, 24 hours a day, 365 days per year, and have authority to use all keys necessary to gain access to the License Area to facilitate entry in time of emergency. Licensee shall ensure that City has a current roster of such on-call personnel and their phone numbers. Licensee shall not change any existing locks, or attach any additional locks or similar devices to any door or window, without providing to City one set of keys therefor. All keys must be returned to City at the expiration or termination of this License. Licensee shall have no claim against City for exercise of its rights of access hereunder.
19.8 Asbestos Notification for Commercial Property Constructed Before 1979.
Licensee acknowledges that City has advised Licensee that, because of its age, the Building may contain asbestos-containing materials ("ACMs"). If Licensee undertakes any Alterations as may be permitted by Article 10, Licensee shall, in addition to complying with the requirements of Article 10, undertake the Alterations in a manner that avoids disturbing ACMs present in the Building. If ACMs are likely to be disturbed in the course of such work, Licensee shall encapsulate or remove the ACMs in accordance an approved asbestos-removal plan and otherwise in accordance with all applicable Environmental Laws, including giving all notices required by California Health & Safety Code Sections 25915-25919.7.
19.9 Lead Warning Statement. Licensee acknowledges that City has advised Licensee that buildings built before 1978 may contain lead-based paints ("LBP"). Lead from paint, paint chips and dust can pose health hazards if not managed properly. Subject to Article 10 of this License, Licensee may at its sole cost and expense, have a state certified LBP Inspector complete a LBP inspection and abatement and provide an abatement certification to City. City has no specific knowledge of the presence of lead-based paint in the License Area.
19.1 O OFAC Certification. Licensee represents, warrants and covenants that:
(a) Licensee and its principals are not acting, and will not act, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order or the United States 4856-7810-3510 v2 13
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Treasury Department as a terrorist, "Specially Designated and Blocked Person" or other banned or blocked person, entity, nation, or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and (b) Licensee acknowledges that the breach of this representation, warranty and covenant by Licensee shall be an immediate Default under the Lease. 19 .11 Certified Access Specialist Disclosure. In accordance with Civil Code Section 1938, City hereby discloses that the License Area has not undergone inspection by a Certified Access Specialist for purposes of determining whethP.rthe property has or does not meet all applicable construction related accessibility standards pursuant to Civil Code Section 55.53.
19.12 Rules and Regulations. Licensee shall faithfully observe and comply with the non-discriminatory rules and regulations attached hereto as Exhibit B and incorporated herein by this reference, as the same may be modified from time to time by City. Any additions or modifications to those rules shall be binding upon Licensee upon City's delivery of a copy to Licensee.
19 .13 Further Assurances. All parties agree to cooperate fully and execute any and all supplementary documents and take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Agreement.
19.14 Time. Time is of essence of every provision herein contained in this Agreement.
19.15 Captions. All captions and headings in this Agreement are for the purpose of reference and convenience and shall not limit or expand the provisions of this Agreement.
19.16 Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. All actions or proceedings arising directly or indirectly under this Agreement shall be litigated in courts located within the County of Napa, State of California.
19.17 Documentation of Occupancy. Licensee acknowledges that pursuant to that certain Napa County Agreement No. 2402598 Purchase and Sale Agreement and Escrow Instructions dated March 6, 2024, as amended, a portion of the Fairgrounds property ("Property") on which the License Area is located was conveyed, on or about July 27, 2024, from the County of Napa to City. Accordingly, Licensee and City are entering into this Agreement to document the continued occupancy by Licensee of the License Area.
19.18 Authority. If Licensee is a corporation, partnership, trust, association or other entity, Licensee and each person executing this License on behalf of Licensee does hereby covenant and warrant that (a) Licensee is duly incorporated or otherwise established or formed and validly existing under the laws of its state of incorporation, establishment or formation, (b) Licensee has and is duly qualified to do business in California, (c) Licensee has full corporate, partnership, trust, association or other power and authority to enter into this License and to perform all Licensee's obligations hereunder, and (d) each person (and all of the persons if more than one signs) signing this License on behalf of Licensee is duly and validly authorized to do so.
Upon execution hereof and at City's request, Licensee shall provide City with written evidence substantiating the authority of the person(s) executing this Agreement on behalf of Licensee to bind Licensee to this Agreement.
4856-7810-3510 v2. 14
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19.19 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Licensee have respectively signed and sealed this License as of the day and year first above written.
LICENSEE: CITY:
CALISTOGA ART CENTER, a California CITY OF CALISTOGA, a general law city 501 (c)(3)
By: ~{,.cctf_- f~) Babette Pinsky
President
Date:
4856-7810-3510 v2
q/;1/:LiJ2. j
15 By:
Date:
Laura Snideman
City Manager
Approved as to form:
By:
Michelle Marchetta Kenyon
City Attorney
Item #5.4.
EXHIBIT A - LICENSE AREA
TUBBS BLDG
APPROXIMATE SCALE: 1''• O'
W1:i 'PRI TED ON 8 . ",c11''
4856-7810-3510 v2
\
Exhibit A
INGR&:S
EGRE S
APPROXIMATE
LEASE SPACE
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EXHIBIT B
RULES AND REGULATIONS
Licensee shall faithfully observe and comply with the following Rules and Regulations.
City shall not be responsible to Licensee for the non-performance of any of said Rules and Regulations by or otherwise with respect to the acts or omissions of any other Licensees or occupants of the Calistoga Fairgrounds. In the event of any conflicts between the Rules and Regulations and other provisions of this License, the latter shall control.
1. City shall have the right to control and operate the public portions of the Calistoga Fairgrounds and the public facilities, as well as facilities furnished for the common use of the Licensees, in such manner as it deems best for the benefit of all licensees generally.
2. No advertisements, pictures or signs of any sort shall be displayed on or outside the License Area without the prior written consent of City. This prohibition shall include any portable signs or vehicles placed within the parking lot, Common Area or on streets adjacent thereto for the purpose of advertising or display. City shall have the right to remove any such unapproved item without notice and at Licensee's expense.
3. Storage of forklift propane tanks, whether interior or exterior, shall be in secured and protected storage and enclosure approved by the local fire department and, if exterior, shall be located in areas specifically designated by City. Licensee shall protect electrical panels and building mechanical equipment from damage from forklift trucks.
4. Machinery, equipment and apparatus belonging to Licensee which causes noise or vibration that may be transmitted to the Cropp Building or other Calistoga Fairgrounds buildings to such a degree as to be objectionable to City or other Licensees or to cause harm to the Cropp Building, shall be placed and maintained by Licensee, at Licensee's expense, on vibration eliminators or other devices sufficient to eliminate the transmission of such noise and vibration.
Licensee shall cease using any such machinery which causes objectionable noise and vibration which cannot be sufficiently mitigated.
5. All goods, including materials used to store goods, delivered to the License Area shall be immediately moved into the License Area and shall not be left in parking or exterior loading areas overnight.
6. Licensee shall not store or permit the storage or placement of merchandise in or around the Common Area or property surrounding the Licensed Area. No displays or sales of merchandise shall be allowed in the parking lots, property surrounding the Licensed Area or other Common Area.
7. Licensee is responsible for the storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles stored behind screen enclosures at locations approved by City.
8. The toilet rooms, urinals, wash bowls and other apparatus shall not be used for any purpose other than that for which they were constructed and no foreign substances of any kind whatsoever shall be thrown therein. The expense of the repair of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by the Licensee who, or whose employees, agents, visitors or licensees shall have caused the same. 4856-7810-3510 v2 Exhibit B
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9. Licensee shall cooperate fully with City to ensure the effective operation of the Cropp Building's air conditioning systems, if applicable. If Licensee shall so use the License Area that noxious or objectionable fumes, vapors and/or odors are created, then Licensee shall provide proper ventilation equipment for the discharge of such fumes, vapors and odors so that they shall not enter into the air conditioning system or be discharged into other vents or flues of the building or annoy any of the other Licensees of the Calistoga Fairgrounds or adjacent properties. The design, location and installation of such equipment shall be subject to the City's approval.
10. All window coverings installed by L.ir.P.nsee and visible from the outside of the Cropp Building require the prior written approval of City.
11. The sashes, sash doors, skylights, windows and doors that reflect or admit light or air into the halls, passageways or other public places in the Cropp Building shall not be covered or obstructed by Licensee.
12. Licensee shall not overload the floor of the License Area.
13. No awnings or other projections over or around the windows or entrances of the License Area shall be installed by any Licensee without the prior written consent of City.
14. Licensee hereby acknowledges that City shall have no obligation to provide guard service or other security measures for the benefit of the License Area. Licensee hereby assumes all responsibility for the protection of Licensee and its agents, employees, contractors, invitees and guests, and the property thereof, from acts of third parties, including keeping doors locked and other means of entry to the License Area closed.
15. No auction, liquidation, fire sale, going out of business or bankruptcy sale shall be conducted in or about the License Area without the prior written consent of City. 16 No Licensee shall use or permit the use of any portion of the License Area for living quarters, sleeping apartments or lodging rooms.
17. Licensee, Licensee's agents, employees, contractors, licensees, or visitors shall not park any vehicles in driveways, service entrances, or areas posted as no parking.
17. If the License Area are or become infested with vermin as a result of the use or any misuse or neglect of the License Area by Licensee, its agents, employees, contractors, visitors or licensees, Licensee shall forthwith, at Licensee's expenses, cause the same to be exterminated from time to time to the satisfaction of City and shall employ such licensed exterminators as shall be approved in writing in advance by City.
19. Licensee shall not use the name of the Cropp Building for any purpose other than as the address of the business to be conducted by Licensee in the License Area, nor shall Licensee use any picture of the Cropp Building in its advertising, stationary or in any other manner without the prior written permission of City. City expressly reserves the right at any time to change said name without in any manner being liable to Licensee therefor.
20. Licensee, its employees and agents shall not loiter in or on the entrances, corridors, sidewalks, lobbies, courts, halls, stair.ivays, elevators, vestibules, property around the Cropp Building or any Common Area for the purpose of smoking tobacco products or for any other Exhibit B
4856-7810-3510 v2
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purposes, nor in any way obstruct such areas, and shall use them only as a mean of ingress and egress from the License Area.
21. City reserves the right at any time to change or rescind any one or more of these Rules and Regulations, or to make such other and further reasonable Rules and Regulations as in City's judgment may from time to time be necessary for the management, safety, care and cleanliness of the License Area, Common Area and Fairgrounds Property, and for the preservation of good order therein, as well as for the convenience of other occupants and Licensees thereof. City may waive any one or more of these Rules and Regulations for the benefit of any particular Licensee, but no such waiver by City shall be construed as a waiver of such Rules and Regulations in favor of any other Licensee, nor prevent City from thereafter enforcing any such Rules and Regulations against any or all Licensees of the Fairgrounds Property.
Licensee shall be deemed to have read these Rules and Regulations and to have agreed to abide by them as a condition to its use of the License Area.
Exhibit B
4856-7810-351 O v2
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City of Calistoga
STAFF REPORT
To: Honorable Mayor and City Council
From: Mitch Celaya, Chief
Meeting: City Council - Oct 01 2024
Subject: Second Reading - Tobacco Retail Licensing Ordinance, Section 8.29.010 AGENDA TITLE:
Second Reading - Amendment to Calistoga Municipal Code Chapter 8 Health and Safety: adding Tobacco Retail Licensing Ordinance, Section 8.29
RECOMMENDATION:
Adopt Tobacco Retail Licensing Ordinance, Calistoga Municipal Code Section 8.29 BACKGROUND:
On December 19th, 2023, The Blue Zone's Tobacco Policy requested that the city consider implementing a local Tobacco Licensing Program to reduce the harm of tobacco products on Calistoga youth. This request is in line with and supports the objectives of the Department of Justice Tobacco Grant that the police department received. We agree with the findings of the Blue Zone Policy Committee as they align with our goals of promoting public health and reducing the access to tobacco products by youths in the city. Their recommendations are valuable in guiding our efforts to implement effective tobacco retail sales policies.
ANALYSIS:
The California Business and Professions Code Section 22971.3 reserves the ability to enact local tobacco control laws for cities. Section 22971.3 also authorizes cities to implement local tobacco licensing laws. Consistent with state law, the city currently regulates the sale of tobacco products, as outlined in the Calistoga Municipal Code 8.28, which prohibits smoking in city-owned vehicles and facilities and smoking in public and places of employment. It also regulates the manner of sale of tobacco products, including violations and penalties within the city. Currently, the city has seven licensed tobacco retailers.
The proposed ordinance would require a city-issued license in addition to the state license and provide more clear authority for the city to conduct checks on compliance with all tobacco-related rules and regulations. The seven current retailers would be grandfathered during the term of their current state-issued license to mitigate any negative impact on existing businesses. Grandfathering allows current tobacco retailers to continue selling tobacco products without having to meet all the requirements of the new ordinance until their state permit is up for renewal which is an exception to the limits on the number of tobacco retailers allowed within the City's jurisdiction (one retailer per 1,000) and/or operating within 800ft of a youth-oriented facility.
The adoption of a Tobacco Retail Licensing Ordinance aims to address public health concerns associated with tobacco use. Tobacco use is a leading cause of preventable death, and regulating Item #5.5.
the sale of tobacco products may help reduce tobacco-related harms. By implementing a Tobacco Retail Ordinance, we aim to effectively reduce youth access to tobacco products, ensure compliance with other tobacco laws, control the location and concentration of tobacco retailers, and impose additional restrictions on the sale and promotion of tobacco products.
We are proposing an annual fee of $250.00 for issuing or reissuing a tobacco retail license. This license would be valid for one year and coincide with the expiration date of the current state tobacco license. Each retailer would need to apply for license renewal and submit the fees at least 30 days before the current license's expiration date. The $250.00 fee aims to strike a balance between the existing state licensing fees, the affordability for retailers, and the financial sustainability of the licensing program. The purpose of the fee is to cover materials, trainings, outreach and compliance.
Staff will submit a separate staff report and resolution to council to authorize the proposed the licensing fee.
The School Resource Officer (SRO) administers our Department of Justice (DOJ) Tobacco Grant.
The SRO would conduct compliance checks in line with the DOJ grant and the TRL Ordinance to ensure that tobacco retailers comply with all relevant laws and regulations. These compliance checks would include sending underage individuals, known as "secret shoppers", to attempt to purchase tobacco products from retailers to determine if they are following age verification laws. The SRO would conduct (3) random compliance checks per calendar year at each retailer location.
The police department will coordinate with the Planning and Building Department to use the administrative complaint process to notify tobacco retailers of violations under the Tobacco Retail Licensing Ordinance. This process will involve issuing a notice of violation to non-compliant retailers with the ordinance and an administrative fine.
Any tobacco retailer that violates any provision of this city ordinance is guilty of an infraction unless this code or state law specifically makes the violation a misdemeanor. 1. After finding a first violation of this chapter at a location, their tobacco license will be suspended for 30 days and a fine not exceeding $100.00. 2. After finding a second violation of this chapter at a location within any 5-year period, the license shall be suspended for 90 days and a fine not exceeding $500.00. 3. After finding a third violation of this chapter at a location within a 5-year period, the license shall be suspended for one year and a fine not exceeding $1000.00. 4.The license shall be revoked after a fourth violation of this chapter is found at a location within any 5-year period.
A decision to suspend or revoke a license by the Planning and Building Department is appealable to the Chief of Police, Building & Planning Director, or their designee. Any appeal must be filed in writing to the Calistoga Police Department or Building and Planning within 10 days of the mailing of the Calistoga Police Department's decision.
FINANCIAL IMPACT:
No additional funding is requested as staff time involved to implement and conduct compliance checks by Police and the Planning & Building departments staff will be incorporated into existing Item #5.5.
duties. Licensing fees will be used to produce educational and outreach materials as well as materials to support compliance checks.
CEQA STATUS:
The recommended action is not a project and is not subject to CEQA review.
ATTACHMENT(S):
Calistoga Tobacco Retail License Ordinamce P
APPROVAL(S):
Connie Cardenas, Admin. Services Director Approved - Sep 20 2024 Laura Snideman, City Manager Approved - Sep 23 2024
Yudiana Galvan, City Clerk Approved - Sep 23 2024
Item #5.5.
ORDINANCE NO. 2023-XXX
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CALISTOGA ADDING SECTION 8.29, “TOBACCO RETAIL LICENSING” ORDINANCE TO CHAPTER TITLE 8, “HEALTH AND SAFETY” TO REGULATE TOBACCO PRODUCT SALES AND REQUIRING THE LICENSURE OF TOBACCO RETAILERS.
WHEREAS, City Council Member Scott Cooper and members of the Blue Zone community have requested that the City of Calistoga adopt a Tobacco Retail Licensing (TRL) Ordinance; and
WHEREAS, TRL Ordinance would establish a TRL program that would further regulate the retail environment in the City of Calistoga to ensure compliance with local business standards; and
WHEREAS, the purpose of the TRL Ordinance is to reduce youth access to tobacco products, limit the negative public health and equity impacts associated with tobacco use, and enforce local, state, and federal tobacco control laws; and WHEREAS, staff have considered this request and believe that it would promote public health and safety for youth in Calistoga to adopt such an ordinance.
THE CITY COUNCIL OF THE CITY OF CALISTOGA DOES ORDAIN AS THE FOLLOWS:
SECTION 1. FINDINGS
The city council of the city of Calistoga hereby finds and declares as follows:
1) A local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the city of Calistoga, to protect the health, safety, and welfare of our residents. 2) Approximately 480,000 people die in the United States from smoking-related diseases and exposure to secondhand smoke every year, making tobacco use the nation’s leading cause of preventable death.2
3) The World Health Organization (WHO) estimates that tobacco kills 8 million people and causes over 1.4 trillion dollars in economic damage each year.136 4) Approximately 5.6 million of today’s Americans who are younger than 18 years of age are projected to die prematurely from a smoking-related illness.2 5) Tobacco use is the number one cause of preventable death in California137 and continues to be an urgent public health issue, as evidenced by the following:
• 40,000 California adults die from their own smoking annually.1 • More than 25% of all adult cancer deaths in California are attributable to Item #5.5.
smoking.138
• Smoking costs California $13.29 billion in annual health care expenses, $3.58 billion in Medicaid costs caused by smoking, and $10.35 billion in smoking-caused productivity losses.139\
• Tobacco use can cause disease in nearly all of the organs of the body and is responsible for 87% of lung cancer deaths, 32% of coronary heart disease deaths, and 79% of all cases of chronic obstructive pulmonary disease in the United States.2
6) Tobacco use among priority populations in California contributes to health disparities and creates significant barriers to health equity, as evidenced by the following:
• African American (20.4%), Asian or Pacific Islander (11.4%), and Hispanic (15.2%) males all report a higher smoking prevalence than the statewide average among all adults (11.0%).9
• American Indian/Alaska Native Californians have the highest smoking prevalence (19.1%) among all reported adult demographic populations.9 • Smoking is more prevalent among rural (14.9%) compared to urban (10.6%) Californians.9
• Californians with the highest levels of educational attainment and annual household income have the lowest smoking prevalence.9
• Adults who identify as lesbian, gay, bisexual, or transgender report smoking at a higher rate (17.4%) than the statewide average (11.0%).9 • Those who reported experiencing psychological distress in the past month smoke at rates (26.7%) higher than the statewide average (11.0%).9 7) Despite the state’s efforts to limit youth access to tobacco, youth are still able to access tobacco products, as evidenced by the following:
• In California, research indicates over 67% of current and former adult smokers started by the age of 18 and almost 100% start by age 26.140 • In California, from 2017 to 2018, approximately 13% of high school students reported using tobacco.9
• Disparities in tobacco use exist among California high school students, with higher rates found among LGBTQ, American Indian, and Pacific Islander youth.
• Unless smoking rates decline, an estimated 441,000 of all California youth who are alive today will die prematurely from smoking-related diseases.2 • In 2017, 22.8% of high school students in California had tried cigarette smoking.141
• Between 2014 and 2018, electronic smoking device use among California youth increased from 14.1% to 46.2%.8
8) The tobacco industry encourages youth and young adult tobacco initiation through predatory targeting,11 as evidenced by the following:
• Tobacco companies target young adults ages 18 to 24 to increase their frequency of tobacco use and encourage their transition to habitual users.66
Item #5.5.
• Tobacco industry documents state that if “a man has never smoked by the age of 18, the odds are three-to-one he never will. By age 24, the odds are twenty-to-one”.142
• The tobacco industry spends an estimated $496 million annually to market tobacco products to California residents.139
9) California retailers continue to sell tobacco to underage consumers, evidenced by the following:
• 9.3% of high school students in California reported buying their own electronic cigarette from a store.141
• 19.1% of California tobacco retailers unlawfully sold tobacco products to underage persons in 2018.9
10) Requiring tobacco retailers to obtain a tobacco retailer license will not unduly burden legitimate business activities of retailers who sell tobacco products to adults but will, however, allow the city council to regulate the operation of lawful businesses to discourage violations of federal, state, and local tobacco control and youth tobacco access laws, as evidenced by the following:
• Tobacco products are the number one seller in U.S. convenience stores, and in 2018, they generated an average of $523,084 in sales per store.143 • Systematic scientific reviews indicate that merchant compliance with youth tobacco sales laws reduces the rate of tobacco use among adolescents.26,27
• {Studies found increased retailer compliance and reduced tobacco sales to youth following implementation and active enforcement of youth tobacco sales laws paired with penalties for violations.144,145 • {A review of 41 California communities with strong tobacco retailer licensing ordinances found that youth sales rates declined in 40 of these communities after the ordinances were enacted, with an average 69% decrease in the youth sales rate.25
11) The federal Family Smoking Prevention and Tobacco Control Act (“Tobacco Control Act”), enacted in 2009, prohibited candy- and fruit-flavored cigarettes,28 largely because these flavored products are marketed to youth and young adults,26,35,145 and younger smokers were more likely than older smokers to have tried these products.26
12) Neither federal nor California state laws restrict the sale of menthol cigarettes or flavored non-cigarette tobacco products, such as cigars, cigarillos, smokeless tobacco, hookah tobacco, electronic smoking devices, and the solutions used in these devices.
13) In 2018, more than 86% of tobacco retailers in California sold flavored noncigarette tobacco products, over 91% of tobacco retailers sold menthol cigarettes,80 and, as of 2016, 8 out of 10 tobacco retailers near schools sold flavored non-cigarette tobacco products.147
14) Flavored tobacco products are used by the majority of youth and young adult Item #5.5.
tobacco users (86.4% and 57.7%, respectively) in California.9 15) Mentholated and flavored products have been shown to be “starter” products for youth who begin using tobacco26,148,149 and these products help establish tobacco habits that can lead to long-term addiction.26,150,151 16) Between 2004 and 2014, the use of non-menthol cigarettes decreased among all populations, but overall use of menthol cigarettes increased among young adults (ages 18 to 25) and adults (ages 26+).30
17) Flavored tobacco has significant public health implications for youth and people of color as a result of targeted industry marketing strategies and product manipulation.11,26,152,153
18) A review of advertising, promotions, and pack prices near California high schools found that “for each 10-percentage point increase in the proportion of Black students, the proportion of menthol advertising increased by 5.9% … the odds of a Newport [a leading brand of mentholated cigarettes] promotion were 50% higher … and the cost of Newport was 12 cents lower.” There was no such association found for non-mentholated cigarettes.154 19) Scientific reviews by the FDA and the Tobacco Products Scientific Advisory Committee (“TPSAC”) found the marketing of menthol cigarettes likely increases the prevalence of smoking among the entire population, but especially among youth, African Americans,33 and possibly Hispanic and Latino individuals;34 and that menthol cigarettes are associated with increased initiation and progression to regular cigarette smoking, increased dependence on cigarettes, and reduced success in smoking cessation, especially among African American menthol smokers.33
20) Research indicates that the FDA ban in 2009 on all flavored cigarette products (except menthol) led to a 6% decrease in youth tobacco use and a 17% decrease in the likelihood of a youth becoming a cigarette smoker.155 21) Studies indicate that laws prohibiting the sale of flavored tobacco products lead to decreases in youth tobacco use, as evidenced by the following:
• An evaluation of New York City’s law, which prohibits the sale of all flavored tobacco, excluding menthol, indicated that as a result of the law, youth had 37% lower odds of ever trying flavored tobacco products and 28% lower odds of ever using any type of tobacco.156
• An evaluation of a law in Providence, Rhode Island, which prohibits the sale of all flavored tobacco, excluding menthol, indicated that as a result of the law, current use of any tobacco product among high school youth declined from 22% to 12% and e-cigarette use declined from 13.3% to 6.6%, even as statewide ecigarette use among high school increased to more than 20%.157 22) The health effects of non-cigarette tobacco products such as cigars, cigarillos, smokeless tobacco, and shisha are substantial as demonstrated by research that shows that non-cigarette tobacco products have addictive levels of nicotine, harmful toxins, and dangerous carcinogens.158-164 Item #5.5.
23) Unlike cigarette use which has steadily declined among youth, the prevalence of the use of non-cigarette tobacco products has increased among California youth9
24) The availability of inexpensive tobacco products leads to increased tobacco use as evidenced by more than 100 academic studies that conclusively show that when tobacco products are made more expensive, fewer people use tobacco, fewer initiate tobacco use, and more people quit tobacco use.2,48-51,53-58 25) Research has also consistently shown that increases in cigarettes prices will result in less smoking across various sociodemographic populations.165 26) A systematic review by the U.S. Community Preventive Services Task Force found that a 20% price increase would reduce demand for cigarettes by approximately 10.4%, the prevalence of adult tobacco use by 3.6%, and initiation of tobacco use by young people by 8.6%.49
27) Unequal price increases across different types of tobacco products lead to substitution from one product to another.56,58
28) Youth are particularly responsive to changes in tobacco prices,26,52,54,166 and evidence suggests that tobacco companies deliberately target youth with price reductions.26,51,64-66,167
29) Evidence also suggests that cigarettes are cheaper in neighborhoods with lower household incomes,118,168 Newport menthol cigarettes cost less in areas with higher proportions of African Americans,118 and underserved communities are targeted with price discounts and coupons.169-171 30) Tobacco companies spend considerably to decrease the price of their products in order to counter state and local tobacco control efforts, appeal to price-sensitive consumers, and increase demand for tobacco products. For example, tobacco companies spent the majority of their cigarette marketing budgets on price discounts, accounting for nearly $6.2 billion of $8.6 billion in advertising and promotional expenditures in 2018. 50,51,62 31) The tobacco industry’s price discounting strategies, such as coupons and multiple package discounts, are popular among consumers, with more than half of adults using some price minimization strategy.70 Coupon receipt and redemption appears more prevalent among white, younger, female, sexual minority, and more nicotine-dependent smokers.172 In California, individuals who used price minimization strategies saved an average $1.04 per pack (or
18.6% off the total) in 2010.70
32) Price-discounted sales account for a substantial proportion of overall tobacco product sales.63
33) Although federal and state laws ban the sale of individual cigarettes,78,173 neither federal nor California state laws restrict the sale of individual little cigars and cigars.
Item #5.5.
34) Many retailers sell little cigars and cigars individually, making them more affordable and appealing to youth.79 Additionally:
• {78.3% of California tobacco retailers sell a popular brand of youth-friendly cigars for less than $1.00.79
• {Between 2012 and 2016, annual sales of cigarillos increased by 78% overall and by 155% for “concept-flavored” (e.g., Jazz) cigarillos.174 •
35) A 10% increase in cigar prices has been associated with decreased cigar sales175,176 and may significantly reduce cigar use among youth.177 36) Neither federal nor California state laws set a minimum price for tobacco products.
37) Minimum price markups and related laws in other states have been shown to be effective at increasing the price of cigarettes but may remain vulnerable to price manipulation by the tobacco industry without attention to coupons and discounts.82
38) Studies have estimated that if price discounts were prohibited across the United States, the number of people who smoke would decrease by more than 13%;68 the impact of a $10 federal minimum floor price for cigarettes could reduce the number of packs sold in the United States by 5.7 billion per year and prompt more than 10 million smokers to quit;55 and that a state-level minimum floor price law designed to raise the average price of cigarette packs by just under $2.00 could decrease the prevalence of cigarette use and consumption by more than 4% and reduce income-based smoking disparities in California.86
39) By selling tobacco products, pharmacies reinforce positive social perceptions of smoking, convey tacit approval of tobacco use, and send a message that it is not so dangerous to smoke.178,179
40) Pharmacies sell cigarettes cheaper than other stores118 and advertise tobacco product discounts more than other stores in California.80 41) Tobacco-free pharmacy sales policies decrease the availability of tobacco products by reducing tobacco retailer density by up to three times compared with communities that do not have such policies,119 and immediately after the nationwide CVS policy change to not sell tobacco products, cigarette purchases declined and smokers who had previously purchased their cigarettes exclusively at CVS were up to twice as likely to stop buying cigarettes entirely.120
42) Research indicates that the density and proximity of tobacco retailers increase smoking behaviors, including the number of cigarettes smoked per day,90 particularly in neighborhoods experiencing poverty.90,180-182 43) The density of tobacco retailers near adolescents’ homes has been associated with increased youth smoking rates101 and initiation of noncigarette tobacco product use.183
Item #5.5.
44) Adults who smoke are likely to have a harder time quitting when residential proximity to tobacco retailers is closer107 and density is higher.184-186 45) Tobacco retailers are more prevalent in underserved communities, especially in neighborhoods with a higher proportion of African American or Hispanic residents.93-98
46) Tobacco retailer density is higher in urban compared to rural areas, except for low-income communities, which have higher tobacco retailer densities regardless of geography, and Hispanic communities, which are associated with variable retailer densities across geography.97,187 47) Policies to reduce tobacco retailer density have been shown to be effective103,104,188,189 and can reduce or eliminate inequities in the location and distribution of tobacco retailers.103,104
48) Six out of 10 tobacco retailers in California sold cigar products using cannabis-related flavor descriptors and these retailers were more prevalent in school neighborhoods with lower median income.190
49) Both youth and adult tobacco users are more likely to also use cannabis.191,192
50) Strict enforcement of policies prohibiting retail sales of cigarettes to youth, sales of cigarettes via vending machines, and other means through which youth gain access to tobacco in commercial settings can limit their opportunities to obtain these products.26,27
51) Strong policy enforcement and monitoring of retailer compliance with tobacco control policies (e.g., requiring identification checks) is necessary to achieve reductions in youth tobacco sales.193,194
52) The Institute of Medicine recognizes that retailers are not likely to comply with youth tobacco access laws unless such laws are actively enforced through retailer compliance checks paired with meaningful penalties on business owners for violations.195
53) State law explicitly permits cities and counties to enact local tobacco retail licensing ordinances and allows for the suspension or revocation of a local license for a violation of any state tobacco control law (Cal. Bus. & Prof. Code § 22971.3).
54) California courts have affirmed the power of the city council to regulate business activity to discourage violations of law. See, e.g., Cohen v. Board of Supervisors, 40 Cal. 3d 277 (1985); Bravo Vending v. City of Rancho Mirage, 16 Cal. App. 4th 383 (1993); Prime Gas, Inc. v. City of Sacramento, 184 Cal.
App. 4th 697 (2010).
55) Over 180 cities and counties in California have passed tobacco retailer licensing ordinances in an effort to stop youth from using tobacco;9 Item #5.5.
56) The city council has a substantial interest in protecting youth and underserved populations from the harms of tobacco use.
57) The city council finds that a local licensing system for tobacco retailers is appropriate to ensure that retailers comply with tobacco control laws and business standards of the city of Calistoga in order to protect the health, safety, and welfare of our residents.
NOW THEREFORE, it is the intent of the city council, in enacting this ordinance, to ensure compliance with the business standards and practices of the city of Calistoga and to encourage responsible tobacco retailing and to discourage violations of tobacco-related laws, especially those which prohibit or discourage the sale or distribution of tobacco products to youth, but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein.
SECTION 2: TOBACCO RETAIL LICENSING ORDINANCE, Chapter 8.29 of the County/City Code is hereby amended to read as follows:
8.29.010 - DEFINITIONS
The following words and phrases, whenever used in this section, shall have the meanings defined in this section unless the context clearly requires otherwise:
(A) “Arm’s Length Transaction” means a sale in good faith and for valuable consideration that reflects the fair market value between two informed and willing parties, neither of which is under any compulsion to participate in the transaction.
(B) “Cannabis” has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time. (C) “Cannabis Product” has the meaning set forth in California Business and Professions Code Section 26001, as that section may be amended from time to time.
(D) “Cannabis Retailer” means any retail establishment in which cannabis or cannabis products are sold or offered for sale to persons that do not hold a license to engage in commercial cannabis activity issued by the State of California in accordance with the Business and Professions Code Section 26000 et seq., as that section may be amended from time to time. (E) “Child-Resistant Packaging” means packaging that meets the definition set forth in Code of Federal Regulations, title 16, section 1700.15(b), as in effect on January 1, 2015, and was tested in accordance with the method described in Code of Federal Regulations, title 16, section 1700.20, as in effect on January 1, 2015.
Item #5.5.
(F) “Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing more than 4.5 pounds per thousand.
(G) “Cigarette” means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein. (H) “City” means the City of Calistoga.
(I) “City Council” means the City Council of the City of Calistoga. (J) “Compliance checks” means systems the department uses to investigate and ensure that tobacco retailers are following and complying with the requirements of this Chapter. Compliance checks may involve the use of persons between the ages of 18 and 20 who purchase or attempt to purchase tobacco products. Compliance checks may also be conducted by the department or other units of government for educational, research, and training purposes or for investigating or enforcing federal, state, or local laws and regulations relating to tobacco products.
(K) “Coupon” means any voucher, rebate, card, paper, note, form, statement, ticket, image, or other issue, whether in paper, digital, or other form, used for commercial purposes to obtain an article, product, service, or accommodation without charge or at a discounted price.
(L) “Delivery sale” means the sale of any tobacco product to any person for personal consumption and not for resale when the sale is conducted by any means other than an in-person, over-the-counter sales transaction in a tobacco retail establishment. Delivery sale includes the sale of any tobacco product when the sale is conducted by telephone, other voice transmission, mail, the internet, or app-based service. Delivery sale includes delivery by licensees or third parties by any means, including curbside pick-up. (M) “Department” means the Calistoga Police Department and any agency or person designated by the Department to enforce or administer the provisions of this Chapter.
(N) “Electronic smoking device” means any device that may be used to deliver any aerosolized or vaporized substance to the person inhaling from the device, including, but not limited to, an e-cigarette, e-cigar, e-pipe, vape pen, or e-hookah. Electronic smoking devices include any component, part, or accessory of the device, and also includes any substance that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine. Electronic smoking device does not include drugs, devices, or combination products authorized for sale by the U.S. Food and Item #5.5.
Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act.
(O) “Flavored Tobacco Product” means any tobacco product that contains a taste or smell, other than the taste or smell of tobacco, that is distinguishable by an ordinary consumer either prior to, or during the consumption of, a tobacco product, including, but not limited to, any taste or smell relating to fruit, menthol, mint, wintergreen, chocolate, cocoa, vanilla, honey, molasses, or any candy, dessert, alcoholic beverage, herb, or spice. (P) “Full Retail Price” means the price listed for a tobacco product on its packaging or on any related shelving, advertising, or display where the tobacco product is sold or offered for sale, plus all applicable taxes and fees if such taxes and fees are not included in the listed price. (Q) “Little Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than 4.5 pounds per thousand. “Little Cigar” includes, but is not limited to, tobacco products known or labeled as small cigar, little cigar, or cigarillo.
(R) “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.
(S) “Moveable place of business” means any form of business that is operated out of a kiosk, truck, van, automobile, or other type of vehicle or transportable shelter and not a fixed address storefront or other permanent type of structure authorized for sales transactions.
(T) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
(U) “Pharmacy” means any retail establishment in which the profession of pharmacy is practiced by a pharmacist licensed by the State of California in accordance with the Business and Professions Code and where prescription pharmaceuticals are offered for sale, regardless of whether the retail establishment sells other retail goods in addition to prescription pharmaceuticals.
(V) “Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a 10% or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a person has or shares ultimate control over the dayto-day operations of a business.
Item #5.5.
(W) “Recreation Facility” means an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes, and includes but is not limited to a gymnasium, playing court, playing field, and swimming pool. (X) “Sale” or “Sell” means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.
(Y) “Self-Service Display” means the open display or storage of tobacco products in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct face-to-face transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display. (Z) “Smoking” means inhaling, exhaling, burning, or carrying any lighted or heated cigar, cigarette, or pipe, or any other lighted or heated product containing, made, or derived from nicotine, tobacco, marijuana, or other plant, whether natural or synthetic, that is intended for inhalation. “Smoking” includes using an electronic smoking device.
(AA) “Tobacco Product” means:
(1) any product containing, made of, or derived from tobacco or nicotine that is intended for human consumption or is likely to be consumed, whether inhaled, absorbed, or ingested by any other means, including but not limited to, a cigarette, a cigar, pipe tobacco, chewing tobacco, snuff, or snus;
(2) any electronic smoking device and any substances that may be aerosolized or vaporized by such device, whether or not the substance contains nicotine; or
(3) any component, part, or accessory of (1) or (2), whether or not any of these contains tobacco or nicotine, including but not limited to filters, rolling papers, blunt or hemp wraps, hookahs, mouthpieces, and pipes.
“Tobacco product” does not mean drugs, devices, or combination products authorized for sale by the U.S. Food and Drug Administration, as those terms are defined in the Federal Food, Drug, and Cosmetic Act. (AB) “Tobacco Retailer” means any person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration, tobacco products. This definition is without regard to the quantity of tobacco products sold, offered for sale, exchanged, or offered for exchange. (AC) “Tobacco Retailing” means engaging in the activities of a tobacco retailer. (AD) “Youth-Oriented Facility” means a parcel in the city of Calistoga that is Item #5.5.
occupied by:
(1) a private or public kindergarten, elementary, middle, junior high, or high school;
(2) a library open to the public;
(3) a playground open to the public;
(4) a youth center, defined as a facility where children, ages 6 to 17, inclusive, come together for programs and activities;
(5) a recreation facility open to the public, defined as an area, place, structure, or other facility that is used either permanently or temporarily for community recreation, even though it may be used for other purposes;
(6) a park open to the public or to all the residents of a private community; (7) a licensed child-care facility or preschool [other than a small-family day care home or a large-family day care home [as defined in California Health & Safety Code § 1596.78]];
8.29.020 - GENERAL REQUIREMENTS AND PROHIBITIONS.
(A) TOBACCO RETAILER’S LICENSE REQUIRED. It shall be unlawful for any person to engage in tobacco retailing in the city of Calistoga without first obtaining and maintaining a valid tobacco retailer’s license for each location at which tobacco retailing is to occur. Tobacco retailing without a valid tobacco retailer’s license is a nuisance as a matter of law. (B) LAWFUL BUSINESS OPERATION. In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it shall be a violation of this Chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, state, or federal law applicable to the sale of tobacco products.
(C) SMOKING PROHIBITED. Smoking, including smoking for the purpose of sampling any tobacco product, is prohibited within the indoor area of any retail establishment licensed under this chapter. Smoking is also prohibited outdoors within 25 feet of any retail establishment licensed under this Chapter.
(D) MINIMUM LEGAL SALES AGE. No person engaged in tobacco retailing shall sell a tobacco product to a person under 21 years of age. (E) DISPLAY OF LICENSE. Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.
Item #5.5.
(F) POSITIVE IDENTIFICATION REQUIRED. No person engaged in tobacco retailing shall sell a tobacco product to another person without first verifying by means of government issued photographic identification that the recipient is at least 21 years of age.
(G) SELF-SERVICE DISPLAYS PROHIBITED. Tobacco retailing by means of a self-service display is prohibited.
(H) ON-SITE SALES. All sales of tobacco products shall be conducted in person in the licensed location. It shall be a violation of this Chapter for any tobacco retailer or any of the tobacco retailer’s agents or employees to engage in the delivery sale of tobacco products or to knowingly or recklessly sell or provide tobacco products to any person who intends to engage in the delivery sale of the tobacco product in the City.
8.29.030 - SALE OF FLAVORED TOBACCO PRODUCTS PROHIBITED. (A) FLAVORED TOBACCO PRODUCT SALES PROHIBITED. It shall be unlawful for any tobacco retailer to sell any flavored tobacco product. (B) PRESUMPTIVE FLAVORED TOBACCO PRODUCT. A public statement or claim made or disseminated by the manufacturer of a tobacco product, or by any person authorized or permitted by the manufacturer to make or disseminate public statements concerning such tobacco product, that such tobacco product has a taste or smell other than tobacco shall constitute presumptive evidence that the tobacco product is a flavored tobacco product.
8.29.040 - TOBACCO PRODUCT PRICING AND PACKAGING.
(A) PACKAGING AND LABELING. No tobacco retailer shall sell any tobacco product to any consumer unless the tobacco product: (1) is sold in the manufacturer’s packaging intended for sale to consumers; (2) conforms to all applicable federal labeling requirements; and (3) conforms to all applicable child-resistant packaging requirements.
(B) DISPLAY OF PRICE. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed on the tobacco product or on any related shelving, posting, advertising, or display at the location where the item is sold or offered for sale.
(C) DISTRIBUTION OF TOBACCO SAMPLES OR PROMOTIONAL ITEMS. It is unlawful for any person to distribute free or nominally priced tobacco products.
(D) PROHIBITION OF TOBACCO COUPONS AND DISCOUNTS. No tobacco retailer shall:
Item #5.5.
(1) Honor or redeem, or offer to honor or redeem, a coupon to allow a consumer to purchase a tobacco product for less than the full retail price;
(2) sell any tobacco product to a consumer through a multiplepackage discount or otherwise provide any such product to a consumer for less than the full retail price in consideration for the purchase of any tobacco product or any other item; or
(3) provide any free or discounted item to a consumer in consideration for the purchase of any tobacco product.
(E) MINIMUM PACKAGE SIZE FOR LITTLE CIGARS AND CIGARS. No tobacco retailer shall sell:
(1) any little cigar unless it is sold in a package of at least 20 little cigars; or
(2) any cigar unless it is sold in a package of at least 5 cigars; provided, however, that this subsection shall not apply to a cigar that has a price of at least $8.00 per cigar, including all applicable taxes and fees.
(F) MINIMUM PRICES FOR CIGARETTES, LITTLE CIGARS, AND CIGARS.
No tobacco retailer shall sell:
(1) Cigarettes at a price that is less than $8.00 per package of 20 cigarettes, including all applicable taxes and fees.
(2) Little cigars at a price that is less than $8.00 per package of little cigars, including all applicable taxes and fees; or
(3) Cigars at a price that is less than $5.00 per cigar, including all applicable taxes and fees.
The minimum prices established in this section shall be adjusted annually by the Department in proportion with the Consumer Price Index, using a system established by the Department.
8.29.050 - LIMITS ON ELIGIBILITY FOR A TOBACCO RETAILER LICENSE. (A) MOBILE VENDING. No license may issue to authorize tobacco retailing at other than a fixed location. No tobacco retail license will be issued to a moveable place of business.
(B) LICENSED CANNABIS BUSINESSES. No license may issue, and no existing license may be renewed, to authorize tobacco retailing at a location licensed for commercial cannabis activity by the State of California under Business and Professions Code Division 10.
Item #5.5.
(C) PHARMACIES. No license may issue, and no existing license may be renewed, to authorize tobacco retailing in a pharmacy.
(D) PROXIMITY TO YOUTH-ORIENTED FACILITIES. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within 800 feet of a youth-oriented facility as measured by a straight line from the nearest point of the property line of the parcel on which the youthoriented facility is located to the nearest point of the property line of the parcel on which the applicant’s business is located.
(E) PROXIMITY TO OTHER TOBACCO RETAILERS. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within the Chapter as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing licensee’s business is located.
(F) PROXIMITY TO CANNABIS RETAILERS. No license may issue, and no existing license may be renewed, to authorize tobacco retailing within 800 feet of an existing cannabis retailer as measured by a straight line from the nearest point of the property line of the parcel on which the applicant’s business is located to the nearest point of the property line of the parcel on which an existing cannabis retailer is located.
(G) POPULATION AND DENSITY. The issuing of tobacco retailer licenses is limited as follows:
(1) The total number of tobacco retailer licenses within the City shall be limited to one for each 1,000 inhabitants of the City.
(2) For the purposes of this subsection, the total population of the City shall be determined by the most current published total available from the U.S. Census Bureau or the California State Department of Finance, whichever has been more recently updated, as of the date the license application is filed.
(3) No new license may issue to authorize tobacco retailing if the number of tobacco retailer licenses already issued equals or exceeds the total number authorized pursuant to subsection (1).
8.29.060 - APPLICATION PROCEDURE.
(A) An application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or an authorized agent thereof. All applications shall be submitted on a form supplied by the Department. (B) A license issued contrary to this Chapter, contrary to any other law, or on the basis of false or misleading information shall be revoked pursuant to Section Item #5.5.