SUBLICENSE AGREEMENT
FOR 175 W SIERRA AVENUE, COTATI, BETWEEN THE CITY OF COTATI, FARMSTER/AMMAMMA TATI, AND ___________________
This Sublicense Agreement (“Agreement”) dated ________________, 20__ (“Effective Date”) is entered into by and between the City of Cotati, a municipal corporation, (the “City”) Farmster/Ammamma Tati, located at 175 W Sierra Avenue, Cotati, California 94931 (“Licensee”) and ____________ (“Sublicensee”). The City, Licensee and Sublicensee are sometimes collectively referred to as the “Parties.”
Recitals
Whereas, the City is the owner of that certain real property located at 175 W Sierra Avenue, Cotati, California 94931, sometimes referred to as the Veronda-Falletti Ranch, and as described in further detail within Exhibit A (the “Property”); and Whereas, on ________________, 2023, the City Council approved a License Agreement between the City and Licensee for the use of the Property; and Whereas, Section 14 of the License Agreement authorizes Licensee to sublicense the Property subject to approval by the City, including execution of a sublicense agreement between the City, Licensee and Sublicensee; and
Whereas, Licensee now desires to enter into this Agreement to issue a sublicense to Sublicensee for use of a portion of the Property, and the City desires to approve the Agreement; and
Whereas, in consideration for the mutual undertakings of the Parties stated herein, the Parties agree as follows.
Agreement
1. Recitals. Each of the above recitals is incorporated herein and is true and correct.
2. Term. The Term of this Agreement shall commence on the Effective Date, and unless sooner terminated or amended as provided herein, the Term shall be effective from the Effective Date until ____________ (“Term”).
3. No Rights to the Property. The City is the Owner of the Property and Licensee has obtained a license from the City to use the Property. This Agreement shall not for any reason be considered an agreement for Sublicensee to sublet, assign, transfer, mortgage, or encumber the Property, and shall not establish any Sublicensee rights in the Property. The City shall not be liable to Sublicensee in any way in relation to Sublicensee’s use of the Property, including but not limited to liability for any changes made under the License Agreement between the City and Licensee for the Property. This Agreement does not 2 confer any additional rights to Licensee beyond the terms of the License Agreement between the City and Licensee.
4. Access of Property.
a. A Responsible Party for Sublicensee shall be responsible for managing Sublicensee’s access to the Property, and shall notify the City, as soon as reasonably possible, if any damage to the Property occurs. b. Responsible Parties include:
i. [Insert Sublicensee Name]
[Name, Title]
[Email address]
[Phone number]
c. If Licensee does not provide access to the Property on or before the Effective Date, the City shall not be subject to any liability for Licensee’s failure to do so. This failure shall not affect the validity of this Agreement or the obligations of Sublicensee hereunder.
d. Sublicensee acknowledges that neither the City nor any of the City’s agents has made any representation or warranty as to the suitability or fitness of the Property for the conduct of Sublicensee’s businesses and use, and that neither the City nor any of the City’s agents has agreed to undertake any alterations or additions or to construct any improvements to the Property except as may be expressly provided in this Agreement.
5. Nonexclusive Sublicense. Sublicensee is granted rights during the Term of this Agreement to the nonexclusive use of certain areas of the Property, including [include specific areas of the property if limited to certain areas], further depicted in Exhibit C (“Sublicense Area”).
The City and Licensee authorize Sublicensee to enter the Property and use the Sublicense Area during the Term of this Agreement, for the purpose and scope of use as described in Exhibit D (“Scope of Use”).
6. Maintenance and Operations. Sublicensee agrees to operate and maintain the License Area in accordance with the terms of this Agreement. Upon access to the Property, Sublicensee shall be responsible for day-to-day maintenance and operation of the License Area. Licensee has sole responsibility to direct Sublicensee to take action to maintain the License Area. Licensee reserves the right to adopt uniform rules and regulations that govern the maintenance and operation of the Property by the Sublicenses, provided they are in conformance with the License Agreement with the City.
7. Indemnification.
a) To the fullest extent allowed by law, Sublicensee shall indemnify, defend with counsel acceptable to the City, and hold harmless the City and its officers, officials, employees, agents and volunteers (collectively, “City Indemnitees”) from and against any and all liability, loss, damage, claims, suits, actions, arbitrations proceedings, administrative proceedings, regulatory proceedings, civil penalties and 3 fines, expenses and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature, whether actual, alleged or threatened, arising out of or in connection with Sublicensee’s use of the Property or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of the City.
b) Sublicensee’s obligation to defend and indemnify the City shall not be excused because of Sublicensee’s inability to evaluate Liability or because Sublicensee evaluates Liability and determines that Sublicensee is not liable to the claimant.
Sublicensee shall respond within thirty (30) days to the tender of any claim for defense and indemnity by the City, unless this time has been extended by the City.
If Sublicensee fails to accept or reject a tender of defense and indemnity within thirty (30) days, the City may pursue any remedy authorized by law. c) With respect to third party claims against Sublicensee, Sublicensee waives any and all rights of any type to express or implied indemnity against the City Indemnitees. d) If any term or portion of this section is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, said section shall be interpreted to allow the broadest indemnity permitted by law.
e) Sublicensee’s obligation to defend and indemnify the City set forth here is binding on the successors, assigns or heirs of Sublicensee and shall survive the termination of this Agreement or this section to the fullest extent and duration allowed by law. f) The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement.
8. Insurance Requirements. Sublicensee shall, at Sublicensee’s sole expense, procure and maintain throughout the Term of this Agreement, the insurance requirements identified within Exhibit B, included herein by reference.
9. Compliance with Applicable Laws. Sublicensee shall comply with all laws applicable to Use of the Property pursuant to the terms of this Agreement hereunder, including but not limited to:
a) Sublicensee shall throughout the Term comply with and shall not use the Property, or suffer or permit anything to be done in or about the same which would in any way conflict with any of the following (collectively "Applicable Laws"):
(i) the provisions of all recorded covenants, conditions and restrictions applicable to the Property, or
(ii) any federal, state, county, local or other governmental agency rules, regulations, statutes, ordinances, orders, standards, requirements or laws now in force or hereafter enacted, promulgated or issued which are applicable to the Property, or the use or occupancy thereof, including without limitation building, zoning, and fire codes and regulations.
10. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City, Licensee and Sublicensee shall survive the termination of this Agreement.
4 11. Termination. Any party to this Agreement may terminate this Agreement at any time and without cause upon ten (10) day written notification to all Parties. If termination is necessary for health and safety purposes, the City or Licensee are authorized to terminate this Agreement to be effective immediately. Upon termination of this Agreement by any party, Sublicensee shall remove from the Property all personal property, animal(s), and material(s) belonging to, or brought onto the Property by Sublicensee. If Sublicensee fails to remove from the Property all personal property, animal(s), and material(s) belonging to, or brought onto the Property by Sublicensee, the City may cause the same to be removed.
Sublicensee shall be responsible for reimbursing any costs and fees for removal to Sublicensee.
12. Extension. City and Licensee may extend the end date of this Agreement beyond that provided for in Section 2. Any such extension shall require a written amendment to this Agreement, as provided for herein.
13. Amendments. The parties may amend this Agreement only by a writing signed by all the Parties.
14. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
15. Notices. All notices and other communications which are required or may be given under this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if personally delivered; (ii) when received if transmitted by telecopy, if received during normal business hours on a business day (or if not, the next business day after delivery) provided that such facsimile is legible and that at the time such facsimile is sent the sending Party receives written confirmation of receipt; (iii) if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express); and (iv) upon receipt, if sent by certified or registered mail, return receipt requested. In each case, notice shall be sent to the respective Parties as follows:
City: City of Cotati
Attn: City Manager
201 W Sierra Avenue
Cotati, California 94931
Licensee: Farmster/Ammamma Tati
Attn: [Insert Contact]
[Insert address]
Sublicensee: [Insert Co. Name]
Attn: [Insert Contact]
[Insert Address]
5 16. Captions. Captions to sections of this Agreement are for convenience purposes only and are not part of this Agreement.
17. Attorneys’ Fees. If a party to this Agreement brings any action, including arbitration or an action for declaratory relief, to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
18. Choice of Law; Venue. In the event that any party brings any action against another under this Agreement, the laws of the State of California shall apply. The parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Sonoma.
19. Severability. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such portion shall be deemed severed from this Agreement and the remaining parts shall remain in full effect as though such invalid or unenforceable provision had not been a part of this Agreement.
20. No Assignment; No Third-Party Beneficiaries. Except as provided specifically herein, the rights granted hereby are personal to Sublicensee and may not be transferred or assigned by operation of law or otherwise without the written consent of the City and Licensee. Nothing in this Agreement is intended to or shall confer upon any person other than the Parties any rights or remedies hereunder.
21. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the matters contained herein and may be amended only by subsequent written agreement signed by all parties.
22. Integration. This Agreement, including all Exhibits attached hereto, and incorporated herein, represents the entire and integrated agreement between City, Licensee and Sublicensee and supersedes all prior negotiations, representations, or agreements, either written or oral pertaining to the matters herein. If any conflict exists between the terms of this Agreement and the terms of any exhibit attached hereto, the terms of this Agreement shall control.
23. Counterparts; Electronic Signatures Allowed. This Agreement may be executed in counterparts and/or by facsimile or other electronic means, and when each Party has signed and delivered at least one such counterpart, each counterpart shall be deemed an original, and, when taken together with other signed counterpart, shall constitute one Agreement, which shall be binding upon and effective as to all Parties. [SIGNATURES ON FOLLOWING PAGE]
6 IN WITNESS WHEREOF, the parties have executed this Agreement the day and the year first written above.
LICENSEE:
FARMSTER/AMMAMMA TATI
By ______________________________
Title ______________________________
SUBLICENSEE:
[Insert name]
By ______________________________
Title ______________________________
CITY OF COTATI
a municipal corporation
By ____________________________
City Manager, Damien O’Bid
Attest:
________________________
Deputy City Clerk, Kevin Patterson
Approved as to form:
________________________
City Attorney, John Bakker
EXHIBIT A
[DESCRIPTION OF REAL PROPERTY]
8 EXHIBIT B
[INSURANCE REQUIREMENTS]
I. Sublicensee shall procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Scope of Use hereunder by the Sublicensee, Sublicensee’s agents, representatives, volunteers and employees.
A. Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001).
2. Insurance Services Office form number CA 0001 (Ed. 12/90) covering Automobile Liability, code 1 (any auto), or code 8, 9 if no owned auto.
3. Workers' Compensation Insurance as required by the State of California and Employers' Liability Insurance. If no employees are utilized, the Consultant shall sign a declaration as described in California Health and Safety Code Section 19825.
B. Minimum Limits of lnsurance. Consultant shall maintain limits no less than:
1. General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: $2,000,000 per accident for bodily injury and property damage.
3. Employers Liability: $1,000,000 per accident for bodily injury or disease
4. Workers' Compensation, Statutory Limits: $1,000,000 per accident for bodily injury or disease.
C. No Coverage Limitations or Restrictions. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the aforementioned specified minimum insurance coverage requirements and/or limits shall be available to the Additional Insureds (defined below). Furthermore, the requirements for coverage and limits shall be (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater.
D. Deductibles and Self-Insured Retentions ("SIR"). All deductibles or SIR must be declared to and approved by the City and shall not reduce the limits of liability. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or SIR as respects the City, its officers, officials, employees and volunteers, or the Sublicensee shall provide a financial guarantee satisfactory to the City guaranteeing 9 payment of losses and related investigations, claim administration and defense expenses. Policies containing any SIR provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or the City. City reserves the right to obtain a full celiified copy of any insurance policy and endorsements. Failure to exercise this right shall not constitute a waiver of the right to so exercise later.
E. Other Insurance Provisions. The Commercial General Liability and Automobile Liability policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees and volunteers ("Additional Insureds") are to be covered as insureds as respects: liability arising out of work or operations as performed by or on behalf of Sublicensee; or automobiles owned, leased, hired or borrowed by Sublicensee.
2. The Additional Insured coverage under Sublicensee’s policy shall be "primary and non-contributory" and will not seek contribution from the City's insurance or self-insurance, and shall be at least as broad as CG 20 01 04 13.
3. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled, unless thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City.
4. The Workers' Compensation endorsement shall contain a Waiver of Subrogation against the City. Sublicensee shall provide to the City an endorsement from the Worker's Compensation insurer, if any, agreeing to waive all rights of subrogation against the City for injuries to employees of the Insured resulting from work for the City or use of the City's premises or facilities.
5. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City (if agreed to in a written contract or agreement) before the City's own insurance or self-insurance shall be called upon to protect City as a named insured.
F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII, unless otherwise acceptable to the City.
G. Verification of Coverage. Sublicensee shall furnish the City with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by the City or on other than the City's forms provided those endorsements conform to the City's requirements.
All certificates and endorsements are to be received and approved by the City before Sublicensee’s use of the Property commences. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications at any time.
H. Sublicensee. Sublicensee agrees to include with any contractor in their contract the same requirements and provisions of this Agreement, including the indemnity and insurance requirements. Contractors hired by Sublicensee agree to be bound to Sublicensee and City in the same manner and to the same extent as Sublicensee is 10 bound to City under this Agreement. Contractors shall agree to include these same provisions with any sub-subcontractor. A copy of the Sublicense Agreement indemnity and insurance provisions will be furnished by Sublicensee to a contractor on request. Sublicensee shall require all contractors to provide a valid certificate of insurance and the required endorsements included in their agreement prior to commencement of any work and Sublicensee shall provide proof of compliance to City.
11 EXHIBIT C
[DEPICTION OF SUBLICENSE AREA]
12 EXHIBIT D
[SUBLICENSE PURPOSE AND SCOPE]
5492945.1/5496240.1