16498.00100\40817146.2
1 LICENSE AGREEMENT
This License Agreement (“Agreement”) is entered into on November 9, 2022 (“Effective Date”) by and between the CITY OF FONTANA, a California municipal corporation (“City”), and WATER OF LIFE COMMUNITY CHURCH, LLC, a California nonprofit corporation (“Licensee”).
City and Licensee are sometimes referred to herein individually as “Party” and collectively as “Parties.”
Recitals
A. The City owns that certain real property consisting of approximately 4.2 acres of land located at Etiwanda Vineyard, Fontana California, currently vacant land, commonly described as APN 0232-201-12 and APN 0232-201-13, as more particularly described in Exhibit A, attached hereto and incorporated herein by reference (the “Property”); and B. The Parties are currently negotiating a Purchase and Sale Agreement (“PSA”) for the sale of the Property and anticipate those negotiations to result in a separate agreement prior to or at the expiration of this Agreement. The PSA will require Licensee (purchaser under the PSA) to construct and develop the Property for certain private, nonprofit-related improvements, as well as certain community-service-related improvements at least similar in scope and size as those provided by Licensee in the City (the “Project”); and
C. Prior to the transfer of the Property under the PSA , Licensee desires to obtain a temporary license for the limited purposes of entering the Property to prepare the Property for the Project; and
D. City desires to accommodate Licensee’s request on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration for the promises set forth in this Agreement, the Parties agree as follows:
Terms
1. License. City hereby grants to Licensee a revocable, exclusive, nontransferable License to access the Property for the limited purpose of allowing Licensee to conduct due diligence and otherwise prepare the Property (including grading and site work contained within the Rough Grading and Precise Grading permits.) for eventual development of the Project and sale under the PSA (the “License”). Licensee shall not use the Property for any other purposes whatsoever, except as authorized by subsequent written agreement signed by City. The Parties hereby acknowledge and agree that use of the Property by Licensee, as set forth in this Agreement, is with the consent of City and shall be considered permissive. Nothing in this Agreement shall be interpreted as, or otherwise deemed to be, a transfer or conveyance of any interest in the Property whatsoever between City and Licensee. The Parties hereby acknowledge and agree that nothing in the Agreement shall be interpreted as an agreement for the lease or other use of the Property by Licensee. 16498.00100\40817146.2
2 2. Property Preparation and Due Diligence. Licensee shall within 15 days of the Effective Date of this Agreement apply for all necessary permits to commence property preparation (including grading) and due diligence. Licensee shall properly dispose of all material removed from the Property in accordance with all Federal, State and local laws related to disposal of hazardous materials, as applicable. The Fontana City Manager may extend the timeframes set forth herein by ten days upon request of the Licensee. Any additional extensions of time will be subject to consideration by the City Council approval.
3. Term and Fees. The term of this License shall commence on the Effective Date and shall, unless otherwise modified, continue until the earlier of: (a) the date on which Property preparation and due diligence is complete; (b) the close of escrow pursuant to the Purchase and Sale Agreement; (c) the termination or material breach by Licensee of the Purchase and Sale Agreement and the terms therein contained; (d) March 1, 2023, or (d) if, at any time, Licensee fails or refuses to comply with or carry out any of the terms herein contained, after receiving a ten day written notice of such failure and a cure is not made within said ten ay period, City may revoke and terminate this Agreement. As consideration for City granting this License, Licensee will pay to the City the sum of $10,333, in arrears, for each partial o r full calendar month this L icense Agreement is in effect. Any and all payments made hereunder shall be credited to interest-only payments anticipated under the PSA.
4. Removal of Property upon Termination . Licensee agrees to remove all of Licensee’s equipment and property and any and all debris from the Property within 72 hours of termination of this Agreement. In the event any equipment or property are not timely removed, City will have the right to remove such equipment or property and Licensee agrees to be responsible for all associated costs of such removal.
5. Compliance with Law.
5.1 Federal, State and Local Laws . Licensee shall conduct its activities related to the License in compliance with all Federal, State and local laws.
5.2 Prevailing Wages.
(a) LICENSEE ACKNOWLEDGES THAT CITY HAS MADE NO
REPRESENTATION, EXPRESS OR IMPLIED, TO LICENSEE OR ANY PERSON
ASSOCIATED WITH LICENSEE REGARDING WHETHER OR NOT LABORERS EMPLOYED
RELATIVE TO THE LICENSE MUST BE PAID THE PREVAILING PER DIEM WAGE RATE
FOR THEIR LABOR CLAS SIFICATION, AS DETERMINED BY THE STATE OF CALIFORNIA, PURSUANT TO LABOR CODE SECTIONS 1720, ET SEQ. LICENSEE
AGREES WITH CITY THAT LICENSEE SHALL ASSUME THE RESPONSIBILITY AND BE
SOLELY RESPONSIBLE FOR DETERMINING WHETHER OR NOT LABORERS EMPLOYED
RELATIVE TO THE LICENSE MUST BE PAID THE PREVAILING PER DIEM WAGE RATE
FOR THEIR LABOR CLASSIFICATION, AS DETERMINED BY THE STATE OF CALIFORNIA, PURSUANT TO LABOR CODE SECTIONS 1720, ET SEQ. (b) LICENSEE, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND
ASSIGNS, WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO ANY OF THEM PURSUANT TO LABOR CODE SECTION 1781. LICENSEE 16498.00100\40817146.2
3 ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 5.2, WHICH READS A S FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR OR RELEASING PARTY DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY
HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS
OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED
PARTY.
BY INITIALING BELOW, LICENSEE KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 5.2:
_________________
Licensee’s Initials
(c) ADDITIONALLY, LICENSEE SHALL INDEMNIFY, DEFEND AND
HOLD HARMLESS CITY, PURSUANT TO SECTION 8, AGAINST ANY CLAIMS PURSUANT TO LABOR CODE SECTION 1781 ARISING FROM THIS AGREEMENT OR THE LICENSE.
5.3 Permits. Before the commencement of any of the work authorized by thi s Agreement, Licensee shall secure any and all governmental permits which may be required. City does not make any representation that it will issue or otherwise assist in th e issuance of any such permit. City shall have no obligation or liability to verify whether Licensee has obtained all necessary permits and approvals.
6. Hazardous Materials. Licensee shall not under any circumstances store or bring onto the Property any Hazardous Materials, and shall be solely responsible for the removal of any Hazardous Material, including asbestos , pursuant to this Agreement . As used in this Agreement, the term “Hazardous Material” means any substance, material or waste which is (1) defined as a “hazardous waste,” “hazardous material,” hazardous substance,” “extremely hazardous waste,” or “restricted hazardous waste” under any provision of California law; (2) petroleum or petroleum products; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a “hazardous substance” pursuant to Sectio n 311 of the Clean Water Act, 33 U.S.C. section 1251 et seq. (33 U.S.C. §1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. §1317); (7) defined as a “hazardous substance: pursuant to the Resource Conversation and Recover Act, 42 U.S.C. section 6901 et seq. (42 U.S.C. §6903) or its implementing regulations; (8) defined as a “hazardous substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. section 9601 et seq. (42 U.S.C . §9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property.
7. Insurance. Licensee, at its sole cost and expense, shall obtain and maintain in full force and effect insurance in the amounts and coverage set forth below. Failure by Licensee to 16498.00100\40817146.2
4 maintain all insurance required herein in effect at all times shall constitute a default under this Agreement.
(A) Comprehensive General Liability Insurance endorsed for prope rty-operations, products/completed operations and contractual liability, in the amount of at least $2,000,000 for any occurrence, $4,000,000 annual aggregate and $1,000,000 property damage. (B) Comprehensive Auto Liability Insurance endorsed for all owned and non-owned vehicles with a combined single limit of at least $1,000,000 per occurrence. (C) Workers Compensation Insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California and which specifically covers all persons providing services on behalf of Licens ee under this Agreement and all risks to such persons and employer's liability insurance with a limit of no less than $1,000,000 per employee and $1,000,000 per occurrence.
(D) Proof of Coverage. Executed copies of all policies of insurance or certificates thereof shall be delivered to City. All insurance policies required by this Agreement shall name City as an additional insured. As often as any such policies shall expire or terminate, renewal or additi onal policies shall be procured and maintained in like manner and to like extent. All policies of insurance must contain a provision that the company writing such policy will give all parties 30 days advance written notice of any cancellation or lapse of the effective date or any reduction in the amounts of insurance.
8. Indemnification. Licensee agrees to protect and does hereby indemnify and hold City harmless from all demands, claims, actions and damages to any person or property (including reasonable attorneys’ fees) arising out of or connected with the use or entrance onto the Property by License, its agents, employees and guests, other than those directly attributable (and then to the extent attributable) to the gross negligence or willful misconduct of City, its agents and employees.
9. Sole Cost and Expense ; Limited Exception . Licensee expressly acknowledges that it is entering into this Agreement and performing the work authorized hereunder at its own risk. Licensee acknowledges that any work Licensee chooses to perform in connection with this Agreement shall be at its sole cost and expense. Licensee further acknowledges that any activity or work or act by Licensee made in connection with this Agreement will not impose any obligation upon City to compensate Licensee, to convey any sort of property interest to Licensee, or enter into or retain any agreement with Licensee, including, without limitation, the Purchase and Sale Agreement . Notwithstanding the preceding provisions of this Section 9, if, through no fault of Licensee, City terminates this Agreement prior to the expiration of the term set forth in Section 3 above, Licensee shall be entitled to reimbursement of all actual and reasonable expenses incurred in Property preparation only (including grading, and site work contained within the Rough Grading and Precise Grading permits ). Such reimbursement shall be made no later than 60 days after such termination.
10. Payment of Costs . Licensee shall be solely responsible for all costs and expenses of all activities contemplated by this Agreement. Licensee shall assure that its activities do not result in the filing or attempted enforcement of any claims or liens against the Property. 16498.00100\40817146.2
5 11. No Third Party Rights. This Agreement is entered into between and solely for the benefit of City and Licensee. No other person shall have any right to enforce the terms of this Agreement.
12. Use Prohibitions. Licensee agrees that in connection with the use and operation of the Property it will not:
12.1 Sell or assign its interest in this Agreement; or
12.2 Sublease all or any portion of the Property and improvements thereon without the express written consent of City; or
12.3 Use or permit the use of any objectionable advertising medium such as, without limitation, loudspeakers, phonographs, public address systems, sound amplifiers, radio or broadcast in such manner that any sounds reproduced, transmitted or produced shall be directed primarily beyond the Property, or background music and will keep all mechanical apparatus free of vibration and noise which may be transmitted beyond the Property; or
12.4 Cause or permit substantial and obnoxious odors to emanate or be dispelled from the improvements; or
12.5 Permit undue accumulations of garbage, trash, rubbish or any other refuse; or
12.6 Create, cause, maintain or permit any nuisance (as defined under applicable law) in, on or about the Property; or
12.7 Commit or suffer to be committed any waste (as defined under applicable law) in, on or about the Property; or
12.8 Knowingly use or allow the Property to be used for any unlawful purpose, or for any purpose which violates the terms of any recorded instrument which affects the Property and which is senior in priority to this License; or
12.9 Cause or permit any insurance coverage on the Property to become void or voidable (unless Licensee has previously obtained replacement coverage in the same amounts) or make it impossible to obtain any required insurance at commercially feasible rates; or
12.10 Violate any law, ordinance or regulation applicable to the Property and the improvements thereon.
13. Notices. Any notice to be given or other docu ment to be delivered by either party to the other hereunder shall be in writing and shall be deemed to have been duly given and received as of the third business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as set forth below:
City: City of Fontana
8353 Sierra Ave.
Fontana, CA 92335
Attention: City Manager
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6 With a copy to: Best Best & Krieger, LLP
2855 E. Guasti Rd., Suite 400
Ontario, CA 91761
Attention: Ruben Duran, City Attorney
Licensee: Water of Life Community Church
ADDRESS
ADDRESS
Attention: NAME
With a copy to: AS DESIGNATED
Any Party hereto may from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified.
14. Assignment. This License is personal to Licensee and may not be assigned without the prior written consent of the City, which may grant or withhold consent in its sole discretion. The foregoing is not intended to limit or prevent Licensee from allowing contractors, agents, or employees to perform Property preparation (including grading) or due diligence under this Agreement.
15. Attorneys’ Fees. If a Party commences an action against the other Party arising out of or in connection with this Agreement, the prevailing Party in such action shall be entitled to have and recover from the losing Party reasonable attorneys’ fees and costs.
16. Governing Law. The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California.
17. Entire Agreement; Severability. Notwithstanding any references in this Agreement to the Purchase and Sale Agreement herein contained, this Agreement contains the sole and complete agreement between the parties relating to the License. This Agreement may not be changed orally and may be amended only by an agreement in writing signed by both parties. In the event that any provision of this Agreement shall be held to be or become invalid or unenforceable in certain circumstances, the validity and enforceability of the remaining provisions, or such provision in other circumstances, shall not in any way be affected or impaired. [Signatures on following page]
16498.00100\40817146.2
7 SIGNATURE PAGE
TO
LICENSE AGREEMENT
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above.
LICENSEE:
WATER OF LIFE COMMUNITY CHURCH
a California nonprofit corporation
By:
By:
CITY:
CITY OF FONTANA, a California Municipal
Corporation
By:
Fontana City Manager
Attest:
By:
Fontana City Clerk
Approved as to form:
Best Best & Krieger LLP
By:
Fontana City Attorney