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LICENSE AGREEMENT
This License Agreement (“ Agreement”) dated as of the ____day of _______, 2019 (“Effective Date”), is made and entered into by and between CITY OF CATHEDRAL C ITY, a California municipal corporation (“ Owner”), and ____________________ , a California _____________ (“ Licensee”). Hereafter, Owner and Licensee may sometimes be referred to individually as a “party,” and collectively as the “parties.”
RECITALS
WHEREAS, Owner is the owner of certain unimproved real property known as Assessor’s Parcel Numbers 687-198-001, 002, 003, 004, 005, 006 and 687-212-001, 002, 003, 004, 005, 019, 026 located in Cathedral City (“ City”), County of Riverside (“ County”), State of California (“State”) which is more particularly described on Exhibit “A” attached hereto and incorporated herein by reference (“Property”); and
WHEREAS, Licensee desires a license for non-exclusive access to and use of portions of the Property for the purpose of c onducting the Permitted Activi ties (defined in Section 2); and Owner has agreed to grant Licensee such access to and use of po rtions of the Property, subject to the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by this re ference, and for other good and v aluable consideration, the receipt and sufficiency of which are hereby acknowledged, and for the mutual covenants contained herein, the parties agree as follows:
1. Grant of License; Scope. Owner hereby grants to Licensee, its officers, employees, agents, contractors, business invitees, and representatives (collectively, the “Licensee Parties”), a non-exclusive license to access and utilize those portions of the Property designated on Exhibit “A” attached hereto (“Licensed Area”) for the purposes set forth in Section 2, below (“License”). The License shall include the right to the non-exclusive use of the Property as may be necessary or required for ingress and egress t o the Property by the Licensee Parties. Licensee acknowledges that the rights granted hereunder do not constitute a lease of any portion of the Property, nor create or vest in Licensee a leasehold estate, easement, ownership, or any other real property interest in or to any portion of the Property.
2. Permitted Activities. Subject to the terms and conditions set forth in this Agreement, as well as any covenants or conditions which may encumber the Property, and all local, state and federal laws and regulations, Licensee shall have the right to access, occupy and utilize the Licensed Area during the Term (defined in Section 3) of thi s Agreement for the following purposes, and for no other purpo se unless agreed to in writing by Owner in its sole and absolute discretion (collectively, the “Permitted Activities”):
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(a) To provide An Italian Family Cirucs consisting of a one-rign ci rcus tent as identified in Special Use Permit dated ___________ in the designated areas of the Licensed Area; and
(b) A t l e a s t f i v e ( 5 ) d a y s p r i o r t o the Commencement Date, Licensee s h a l l provide Owner with evidence of compliance with all governmental approvals required for Licensee’s intended use of the Property, including but not limited to: (i) special use permit issued by the City, (ii) special event business license issued by the City,(iii) health and safety inspection approval by the Cathedral City Fire Department; and (iv) as further required in Section 5, below. Owner shall have no obligation or responsibility with regard to obtaining o r maintaining any licenses, permits or other necessary governmental approvals that may be required for Licensee’s intended use of Property.
3. Term. The term of this License will commence on December 01, 2022 at 7:00 a.m. (the “Commencement Date”) and will expire, on December 13, 2022 at 6:00 p.m. (“Termination Date”). The period between the Comme ncement Date and Termination Date shall be referred to collectively as the “Term.”
4. License Fee. At least five (5) days prior to the Commencement Date and as a condition precedent to the exercise of any of Licensee’s rights under this Agreement, Licensee shall pay to Owner a licensee fee (“ License Fee”) in the amount of _____________________ Dollars ($_______.00), in immediately available U.S. cash funds.
5. Maintenance and Use of Licensed Area. Licensee agrees to maintain the Licensed Area in a neat and clean condition free of all debris, trash and refuse. Licensee shall comply with all applicable laws, codes, ordi nances, and other City requirem ents specific to the Permitted Activities, or affecting the cleanliness, safety, occupation, and use of the Licensed Area during the Term. Licensee covenants that no hazardous, toxic, flammable, or explosive material shall be permitted or released within the Licensed Area, as further set forth in Section 11 of this Agreement.
Licensee shall not commit or suffer any nuisance upon or about the Licensed Area. In no event may Licensee conduct business other than as expressly provided in Section 2, above.
6. Modifications to the Property. Licensee may not make any material or permanent modifications to the Licensed Area without the Owner’s prior written approval, which Owner may give or withhold in its sole and absolute discretion. If approved, all work undertaken by Licensee or its contractors, subcontractors and other agents in connecti on with the modifications shall be undertaken and completed in a goo d and workmanlike manner by pr ofessional, licensed and qualified personnel and contract ors. Any fixtures installed by Licensee that cannot be removed without damage to the Property, or that remain on the Property after the expiration or earlier termination of this Agreement shall, at Owner’s option and without payment or other compensation to Licensee, become the sole property of Owner upon such expira tion or termination. Any non- affixed equipment and all furnis hings shall be retrieved by Lic ensee at the end of the Term and Licensee shall fully repair any damage caused by such removal.
7. Surrender. Upon the expiration or earlier termination of this Agreement, Licensee shall surrender the License to Owner and return posses sion of the Property to Owner in substantially t he same condition as exis ts on the Effective Date.
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8. Insurance. From and after the Commencement Date, and continuing thereafte r until the expiration or sooner termination of the Term, License e shall carry and maintain, at its sole cost and expense, the following types of insurance in the amounts specified and in the form hereinafter provided for:
(a) Commercial or comprehensive general liability insurance (including bodily injury and property damage) in an amount of not less than a sin gle limit per occurrence of Two Million Dollars ($2,000,000) and Five Million Dollars ($5,000,0 00) aggregate, insuring Owner and its principals, officers, emp loyees, agents, contractors, l enders, and insure rs (collectively, “Owner Parties”) against any and all loss and liability arising out of Licens ee’s or the Licensee Parties’ use of the Licensed Area.
(b) Workers’ compensation for Licens ee’s employees in the amount re quired by law.
(c) Automobile liability insurance (covering both owned and non-own ed vehicles, including those of the Licensee Parties) in an amount of not less than a single limit per occurrence of One Million Dollars ($1,000,000) and Two Million Dollars ($2,000,000) aggregate. (d) Any other form of insurance for risks and/or perils against which a prudent person would protect itself and as are customarily obtained by owners of similar operations in the State of California, including fire and casualty insurance, and /or increases in the amounts of coverage under any or all of the liability or other insurance p olicies carried by Licensee to the extent commercially reasonable and typically obtained by owners of similar operations. (e) As an express condition precedent to Licensee’s use of the Lice nsed Area for any purpose, at least five (5) days prior to the Commencement Date, Licensee shall furnish to Owner properly executed certificates of insurance and endorsements to those policies as required herein, and copies of its policies of insurance. Such policies shall clearly evidence all coverage required of Licensee and hereunder shall have commercially reas onable deductibles and shall provide that such insurance shall not be materially changed, terminated or allowed to expire at any time during the Term. All policies obtained by Licensee must b e primary and non-contributing with any policies that Owner may elect to obtain and must conta in waiver of subrogation provisions acceptable to Owner. All policies required hereunder must be endorsed to name Owner and the Owner Parties as additional insureds and copies of those endorsements must be provided to Owner. All policies shall be issued by insurers qualified to do business in the State of California whose financial strength is acceptable to Owner in its reasonable discretion and shall be in a form reasonably satisfactory to Owner.
(f) Licensee acknowledges that neither it nor any of the Licensee P arties will be subject to coverage under any policy of insurance that Owner may elect (in its sole and absolute discretion) to obtain.
9. Indemnification.
(a) General Indemnification. Except to the extent attributable to Owner’s sole gross negligence or willful misconduct, Owner shall not be liable to Licensee or Licensee Parties for any damage to Licensee or Licensee Parties (or to Licensee’s or the Licensee Parties’ property)
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from any cause whatsoever, including, without limitation, theft , mysterious disappearance, rodents, vermin and acts of God. Licensee and Licensee Parties shall jointly and severably indemnify, protect, defend and hold harmless the Property, Lice nsed Area, Owner or Owner Parties from and against any and all actual or alleged claims, and/or damages, liens, judgments, penalties, attorneys’ and consultants’ fees, expenses and/or liabilities arising out of, involving, or in connection with, a Licensee De fault or the use and/or occupa ncy of the Licensed Area by Licensee or the Licensee Parties or any act or omission of Licensee or the Licensee Parties. If any action or proceeding is brought against Owner or Owner Parties by reason of any of the foregoing matters, Licensee shall, upon no tice, defend the same at Licens ee’s sole expense by counsel reasonably satisfactory to Owner. The indemnification provided for in this Section shall survive the expiration or termination of the License granted herein as to matters occurring or accruing during the Term or by reason of Licensee’s or the Licensee’s Pa rties’ occupancy or use of the Property.
Compliance with Applicable Laws, Rules, and Regulations. Licensee represents, warrants, and agrees that it shall use and occupy the Licensed Area in compliance with all applicable laws, statutes, ordinances, rules, regulations, orders and requirements in effect during the Term, or any part of the Term hereof, which regulate use or occupancy by Licensee of the Licensed Area or the conduct of the Permitted Activities. Licensee represents, warrants, and agrees that it and the Licensee Parties shall use and occupy the Licensed Area in comp liance with all applicable Environmental Laws (defined below). Licensee further warrants and agrees that it shall remediate and clean, to the extent required by Environmental Laws, applicable to its or the Licensee Parties’ use of the Licensed Area, any spills or releases of Hazardous S ubstances (defined below), to the extent caused or contributed to by Licensee, or the Licensee Pa rties, or their respective agents, licensees, invitees, and successors and assigns’ use or occupancy of the Licensed Area.
(b) “Environmental Laws” shall mean all federal, state, local, or municipal laws, rules, orders, regulations , statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liabi lity or standards of conduct concerning any Hazardous Substance (as hereinafter defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Licensed Area), occupational or environmental conditions on, under, or about the Licensed Area, as now or may at any later time be in effect, in cluding without limitation, the Comprehensive Environmental Response, Compensation and Liabil ity Act of 1980 (“CERCLA”) [42 U.S.C.A §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (“RCRA”) [42 U.S.C.A §§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (“FWPCA”) [33 U.S.C.A §§ 1251 et seq.]; the Toxic Substances Control Act (“TS CA”) [15 U.S.C.A §§ 2601 et seq.]; the Federal Insecticide, Fungicide, Rodenticide Act [7 U .S.C.A §§ 136 et seq.]; the Superfund Amendments and Reauthorization Act [42 U.S.C.A §§ 9601 et seq.]; the Clean Air Act [42 U.S.C.A §§ 7401 et seq.]; the Safe Drinking Water Act [42 U.S.C.A §§ 300f et seq.]; the Solid Waste Disposal Act [42 U.S.C.A §§ 6901 et seq.]; the Surface Mi ning Control and Reclamation Act [30 U.S.C.A §§ 1201 et seq.] ; the Emergency Planning and Co mmunity Right-to-Know Act [42 U.S.C.A §§ 11001 et seq.]; the Occupational Safety and Heal th Act [29 U.S.C.A §§ 655 and 657]; the California Underground Storage of Hazardous Substance s Act [Health & Saf. Code §§ 25280 et seq.]; the California Hazardous Substances Account Act [Health & Saf. Code §§ 25300
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et seq.]; the California Hazardous Waste Control Act [Health & Saf. Code §§ 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [Healt h & Saf. Code §§ 25249.5 et seq.]; the Porter-Cologne Water Quality Act [Wat. Code §§ 13000 e t s e q . ] t o g e t h e r w i t h a n y amendments of or regulations pro mulgated under the statutes cit ed above and any other federal, state, or local law, statute, or dinance, or regulation now in e ffect or later enacted that pertains to occupational health or industrial hygiene, and only to the exte nt that the occupational health or industrial hygiene laws, ordinanc es, or regulations relate to H azardous Substances on, under, or about the Licensed Area, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use. (c) “Hazardous Substances ” shall mean and include (a) those substances included within the definitions of “hazardous substance,” “haza rdous waste,” “hazardous material,” “toxic substance,” “s olid waste,” or “pollutant or c ontaminant” in CERCLA, RCRA, TSCA, or under any other Environmental Law; (b) those substance s listed in the United States Department of Transportation ( DOT) Table [49 C.F.R. 172.101], o r by the Environmental Protection Agency (EPA), or any successor agency, as hazardous substances [40 C.F.R. Part 302]; (c) other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and (d) any material, waste, or substance that is (i) a petroleum or refined petroleum product, (ii) asbe stos, (iii) polychlorinated biphenyl, (iv) designated as a hazardous subs tance pursuant to 33 U.S.C.A § 1321 or listed pursuant to 33 U.S.C.A § 1317, (v) a flammable explosive, or (vi) a radioactive material.
10. Events of Default; Termination. The material breach of any provision of this Agreement shall constitute a default and material breach of thi s Agreement by Licensee (“Default”). In the event of a Default by Licensee, Owner (in addition to any other remedies available at law or in equity), at its option, and without furt her notice to Licensee, shall have the right to (i) terminate the License and all rights of Licensee i n or to the Property; (ii) take full possession of the Property; and (iii) remove all of Licensee’s equipment, facilities and other personal property from Owner’s Property and either deliver the same at Licensee’s cost or place it in storage for Licensee’s accoun t and give Licensee notice of t he location of the same. In such event, neither party shall have any further rights or obligations hereunder.
11. Non-Assignment. This Agreement shall not be assigned or otherwise transferred by Licensee, nor may any portion of the Property sublicensed by Licensee, without Owner’s prior written approval, which Owner may withhold in its sole and absolute discretion.
12. Notices. All notices and other communica tions required or permitted to be given hereunder shall be in writing and shall be sent by: (a) certified or registered mail, postage prepaid, return receipt requested, (b) personal delivery, or (c) a recog nized overnight carrier that provides proof of delivery, and shall be addressed as follows:
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If to Owner:
City of Cathedral City
Attn: City Manager
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
If to Licensee:
______________________
______________________
______________________
______________________
Notices shall be deemed effective upon receipt or rejection only.
13. No Recordation. This Agreement may not be recorded.
14. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid, illegal, or unenforceable , then such portion shall be deemed severed from this Agreement and the parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intent and purpose of this Agreement.
15. Entire Agreement; Amendment. This Agreement contains the entire agreement between the parties with respect t o the subject matter herein a nd supersedes any and all prior or contemporaneous negotiations, correspondence, or oral or written agreements between the parties.
No supplement, amendment, or modification of any provision of this Agreement shall be effective unless it is in writing and executed by both parties.
16. Counterparts. This Agreement may be signed in multiple counterparts, each o f which shall be deemed an origina l, but all of which, taken toge ther, shall constitute one and the same Agreement.
17. Governing Law. This Agreement shall be governed by and construed in accordance with the procedural and substantive laws of the Stat e of California, without regard to its conflicts of laws principles.
18. Attorneys’ Fees. In the event of a suit by either party against the other arising out of this Agreement, the prevaili ng party shall be entitled to re c o v e r f r o m t h e o t h e r p a r t y a l l reasonable costs and expenses of suit, including attorneys’ fees and the fees of other professionals.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
“OWNER”:
CITY OF CATHEDRAL CITY, a California
municipal corporation
B y :
N a m e :
I t s :
“LICENSEE”:
_______________________________, a
___________________________________
B y :
N a m e :
Its:
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EXHIBIT “A”
DESCRIPTION OF PROPERTY
APN 687-198-001, 002, 003, 004, 005, and 006
as identified in Parcel Map Book 687:
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DESCRIPTION OF PROPERTY
CONTIUED
APN 687-212-001, 002, 003, 004, 005, 019 and 026
as identified in Parcel Map Book: