Printed 07/28/2026
PlanetBids
533
City of Fontana
Etiwanda Ave. to Slover Ave./Airport Drive Intersection Improvement Project (DE-26-220-SB), bidding on 07/23/2026 2:00 PM (PDT)
Printed 07/28/2026
PlanetBids
534
City of Fontana
Etiwanda Ave. to Slover Ave./Airport Drive Intersection Improvement Project (DE-26-220-SB), bidding on 07/23/2026 2:00 PM (PDT)
Printed 07/28/2026
PlanetBids
535
City of Fontana
Etiwanda Ave. to Slover Ave./Airport Drive Intersection Improvement Project (DE-26-220-SB), bidding on 07/23/2026 2:00 PM (PDT)
Printed 07/28/2026
PlanetBids
536
City of Fontana
Etiwanda Ave. to Slover Ave./Airport Drive Intersection Improvement Project (DE-26-220-SB), bidding on 07/23/2026 2:00 PM (PDT)
Printed 07/28/2026
PlanetBids
537
City of Fontana
Etiwanda Ave. to Slover Ave./Airport Drive Intersection Improvement Project (DE-26-220-SB), bidding on 07/23/2026 2:00 PM (PDT)
Printed 07/28/2026
PlanetBids
538
City of Fontana
Etiwanda Ave. to Slover Ave./Airport Drive Intersection Improvement Project (DE-26-220-SB), bidding on 07/23/2026 2:00 PM (PDT)
Printed 07/28/2026
PlanetBids
539
City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1179 Agenda Date: 8/11/2026
Agenda #: K. Category: Consent Calendar
FROM:
Police Department
SUBJECT:
Police Department Monthly Information Update
RECOMMENDATION:
Accept the Police Department monthly information update for June 2026.
COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Increase citizen involvement by informing the public about issues, program, and accomplishments.
· Concentrate on Inter-governmental relations by establishing partnerships and positive working relationships with other public agencies providing services to residents and local businesses.
DISCUSSION:
The June 2026 monthly information report has been completed. Once the report is accepted by the City Council it will be featured on the Department website.
FISCAL IMPACT:
There is no fiscal impact.
MOTION:
Approve staff recommendation.
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POLICE DEPARTMENT
MONTHLY REPORT
June 2026
541
NOTEWORTHY EVENTS
• Fontana Police Participated in the Fontana Days Carnival. • Sgt. Brandon Bowie graduated from the Sherman Block Supervisor Leadership Institute. • Fontana Police hosted a Red Cross Blood Drive.
• Chief Dorsey and the Fontana Police Chief’s Roundtable hosted the first annual 3x3 Basketball Tournament at Koehler Park.
• Three Fontana Police Officers Graduated from San Bernardino County Sheriff’s Academy. • Fontana Police participated in the “First Responder’s Day” at Primrose Elementary School. • Fontana Police hosted the annual Fontana Police Teen Academy. • ICAC arrested several individuals for sexual exploitation of minors.
KA1
542
Slide 2
KA1 Kevin Anderson, 2/9/2021
543
544
CITYWIDE
• Priority 1 response time- 4:10(Emergency calls like subject not breathing, shots fired, and other immediate risk to life/safety)
• Calls for service- 9,120
• Total arrests- 545
• Hispanic- 372, White- 70 , Black- 74, All other races-29 • Total Group A Offenses- 657
• Crimes Against Persons- 151
• Crimes Against Property- 354
• Crimes Against Society- 152
545
CITYWIDE
• Crimes Against Person- 151
• Homicide- 0
• Sex Offenses- 13
• Assault- 134
• Kidnapping- 0
• Other- 4
• Crimes Against Property- 354
• Robbery- 11
• Burglary- 19
• Larceny- 159
• Destruction of Property- 39
• Fraud- 27
• Possession of Stolen Property- 37
• Motor Vehicle Theft- 47
• Other Miscellaneous Property Crimes- 15
• Crimes Against Society- 152
• Drug and Paraphernalia Possession- 134
• Possession of Child Pornography- 1
• Possession of Weapons- 17
• Other Miscellaneous Crimes- 0
546
CRIMES BY BEAT
• Police Department Beat system is NOT
geographically the same as City Council
representation Districts
• Beat 1- All area north of 210 Freeway
• Beat 2- All area south of 210 Freeway and
north of Foothill
• Beat 3- All area south of Foothill and north
of 10 Freeway
• Beat 4- All area south of the 10 Freeway
Area 1
Area 2
Area 3
Area 4
547
BEAT 1
AREA COMMANDER IS LIEUTENANT KYLE SLUSSER
EMAIL- [email protected]
DESK- (909) 350-7716
• Total Group A Offenses- 68
• Crimes Against Persons- 17
• Crimes Against Property- 49
• Crimes Against Society- 2
548
BEAT 2
AREA COMMANDER IS LIEUTENANT MATT KRAUT
EMAIL- [email protected]
DESK- (909) 356-7142
• Total Group A Offenses- 173
• Crimes Against Persons- 50
• Crimes Against Property- 98
• Crimes Against Society- 25
549
BEAT 3
AREA COMMANDER IS LIEUTENANT ADAM CLABAUGH
EMAIL – [email protected]
DESK – (909) 350-7706
• Total Group A Offenses- 308
• Crimes Against Persons- 67
• Crimes Against Property- 129
• Crimes Against Society- 112
550
Beat 4
AREA COMMANDER IS LIEUTENANT KEITH ZAGORIN
EMAIL – [email protected]
DESK – (909) 350-7707
•Total Group A Offenses- 108
•Crimes Against Persons- 17
•Crimes Against Property- 78
•Crimes Against Society- 13
551
ADDITIONAL USEFUL INFORMATION
• For more information regarding specific geographical crime data, visit www.crimemapping.com and enter your zip code
• Police Department information line- (909) 350-7740
• Police Department Dispatch non-emergency line- (909) 350-7700 • Anonymous crime reporting (909) 356-TIPS to leave a recorded message
• Report Graffiti on City Property- (909) 350-GONE
• Office of the Chief- (909) 350-7702 or [email protected] 552
City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1180 Agenda Date: 8/11/2026
Agenda #: L. Category: Consent Calendar
FROM:
Development Services
SUBJECT:
Resolution of the City Council of the City of Fontana, California, Approving an Amendment to the Naming Rights Agreement and Approving the Addition of a Merchandising Addendum Between the City of Fontana and Red Head Inc.
RECOMMENDATION:
Staff recommends that the City Council adopt Resolution No. 2026-080, approving an amendment to the Naming Rights Agreement between the City of Fontana and Red Head Inc., approving the addition of a Merchandising Addendum to the Naming Rights Agreement, and authorizing the City Manager, or designee, to enter into the amended agreement, addendum, and any related documents necessary to implement the agreements.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention, and expansion. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.
· Practice sound fiscal management by emphasizing capital formation.
DISCUSSION:
On September 30, 2022, the City entered into a Naming Rights Agreement with Red Head Inc. concerning naming rights associated with the Stage Red Venue.
On December 5, 2023, Red Head Inc. (the “Company”)submitted an application with the United States Patent and Trademark Office to register the mark “STAGE RED” (the “Trademark”).The Trademark has since been approved and duly registered, and the Company is the current owner of all right, title, and interest in and to the Trademark.
The City and the Company desire to amend the Naming Rights Agreement to provide for the assignment and transfer of the Trademark from the Company to the City, while also establishing licensing rights allowing the Company to continue using the Trademark in accordance with the terms of the amended agreement.
The amendment also expands the scope of the Naming Rights Agreement to include provisions governing the development, production, marketing, distribution and sale of merchandise bearing certain approved intellectual property, including: (1) the intellectual property “SAMMYHAGAR”which is the subject of the existing Naming Rights Agreement; (2) the Trademark; and (3) other City City of Fontana Printed on 8/6/2026Page 1 of 2
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File #: 26-1180 Agenda Date: 8/11/2026
Agenda #: L. Category: Consent Calendar
intellectual property identified in the agreement.
These provisions are intended to clarify ownership rights, establish authorized uses of the applicable intellectual property, and provide a framework for merchandise opportunities associated with the Stage Red Venue and related branding.
FISCAL IMPACT:
Approval of the amended Naming Rights Agreement and Merchandising Addendum will result in a one-time expenditure of $16,749.15 for the acquisition of the Stage Red trademark from Red Head Inc. Funding for this expenditure is available in the Fiscal Year 2026-2027 Development Services Department budget, Org 72030100.8130.
MOTION:
Approve staff recommendation.
City of Fontana Printed on 8/6/2026Page 2 of 2
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RESOLUTION NO. 2026-080
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA,
CALIFORNIA, APPROVING AMENDMENTS TO THE NAMING RIGHTS
AGREEMENT AND APPROVING THE ADDITION OF A
MERCHANDISING ADDENDUM BETWEEN THE CITY OF FONTANA
AND RED HEAD INC.
WHEREAS, on September 30, 2022, the City of Fontana (“City”) entered into a Naming Rights Amendment with Red Head Inc. (“Company”) concerning naming rights associated with the Stage Red Venue, in the City of Fontana; and WHEREAS, on December 5, 2023, Company submitted to the United States Patent and Trademark Office an application to register the mark “STAGE RED” (the “Trademark”), and the Trademark has since been approved and duly registered; and WHEREAS, Company is the owner of all right, title, and interest in and to the Trademark and desires to assign, transfer, and convey to City all of Company’s right, title and interest therein; and
WHEREAS, Company desires to assign, transfer, and convey to City all of Company’s right, title, and interest in and to the Trademark, and City desires to accept such assignment; and
WHEREAS, City has agreed to grant Company a license to use the Trademark ; and
WHEREAS, the parties wish to amend the Agreement to reflect the foregoing assignment and license arrangements, and further to expand the scope of the Agreement to include the development, production, marketing, distribution and sale of merchandise bearing either or both (i) the intellectual property “SAMMY HAGAR,” which is the subject of the Agreement, (ii) the Trademark, and (iii) such other City intellectual property as described therein.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Fontana, California, as follows:
Section 1. Recitals. The above recitals are true, correct and by this reference incorporated herein.
Section 2. CEQA. The City Council of the City of Fontana finds that approval of the Amendment to the Naming Rights Agreement and the Merchandising Addendum is not a project subject to the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15378 because the action involves the approval of contractual agreements that will not result in a direct or reasonably foreseeable indirect physical change in the environment.
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Resolution No. 2026-080
Section 3. Amendment to Naming Rights Agreement. The City Council of the City of Fontana hereby approves the Amendment to the Naming Rights Agreement between the City and the Company, substantially in the form attached hereto as Exhibit A.
Section 4. Merchandising Addendum. The City Council of the City of Font ana hereby approves the Merchandising Addendum to the Naming Rights Agreement between the City and the Company, substantially in the form attached hereto as Exhibit B.
Section 5. Authority. The City Manager, or designee, is hereby authorized to enter into the Amendment, Merchandising Addendum, and any related documents necessary to implement the agreements.
Section 6. Effective Date. This Resolution shall become effective immediately upon its adoption.
Section 7. Severability. If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.
Section 8. Certification. The City Clerk shall certify to the adoption of this Resolution.
Section 9. Custodian of Records . The documents and materials that constitute the record of proceedings on which this Resolution is based are located at the City Clerk’s office located at 16860 Valencia Avenue, Fontana, CA 92335. The custodian of records is the City Clerk.
APPROVED AND ADOPTED this day of 11th day of August, 2026.
READ AND APPROVED AS TO LEGAL FORM:
_____________________________
City Attorney
I, Germaine Key, City Clerk of the City of Fontana, and Ex-Officio Clerk of the City Council of the City of Fontana, hereby certify that the foregoing Resolution is the actual resolution that was duly and regularly adopted by the City Council of the City o f Fontana at a regular meeting on the 11th day of August, 2026, by the following vote, to wit:
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Resolution No. 2026-080
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
City Clerk of the City of Fontana
______________________________
Mayor of the City of Fontana
ATTEST:
______________________________
City Clerk of the City of Fontana
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FIRST AMENDMENT TO NAMING RIGHTS AGREEMENT
This First Amendment to Naming Rights Agreement (the “Amendment”) is entered into as of this ____ day of August, 2026 (the “Effective Date”) by and between the City of Fontana (“City”) and Red Head Inc., a California corporation (“Company”). All defined terms herein shall have the same meaning as in the Agreement.
RECITALS
WHEREAS, City and Company entered into that certain Naming Rights Agreement dated September 30, 2022 (the “Agreement”); and
WHEREAS, on December 5, 2023, Company submitted to the United States Patent and Trademark Office an application to register the mark “STAGE RED” (the “Trademark”), and the Trademark has since been approved and duly registered; and WHEREAS, Company is the owner of all right, title, and interest in and to the Trademark and desires to assign, transfer, and convey to City all of Company’s right, title and interest therein; and
WHEREAS, City desires to acquire from Company all of Company’s right, title, and interest in and to the Trademark for use in connection with its business and operations; and WHEREAS, City has agreed to grant Company a license to use the Trademark, subject to the terms and conditions set forth herein; and
WHEREAS, the parties wish to amend the Agreement to reflect the foregoing assignment and license arrangements, and further to expand the scope of the Agreement to include the development, production, marketing, distribution and sale of merchandise bearing either or both (i) the intellectual property “SAMMY HAGAR,” which is the subject of the Agreement, (ii) the Trademark, and (iii) such other City intellectual property as described herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. The title of Section 1 of the Agreement, currently “Grant of License,” is hereby deleted in its entirety and substituted with the text “Marks; Transfer and Grant of Licenses.”
2. The existing text of Section 1 shall be designated as Section 1(a) and, except as expressly amended herein, shall remain in full force and effect, provided that the first paragraph shall be amended by deleting the text “but does not include the sale of merchandise” and substituting the text with “including merchandise (subject to the terms 558
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of the Merchandise Addendum dated June __, 2026).” Section 1(a) shall be further amended to include the following language to the end of the section, “[F]or avoidance of doubt, in the event this Agreement is renewed in accordance with Section 5, the licenses granted by the City to Company and by Company to City shall automatically extend for each renewal term on the same terms and conditions unless otherwise modified by mutual written agreement of the parties.”
3. Section 1 of the Agreement shall be amended by adding the following text as Section 1(b):
“Company hereby irrevocably sells, assigns, transfers and conveys to City all of Company’s right, title and interest as it holds in the trademark "STAGE RED" registered in the United States patent and Trademark Office under the number 7951201 for the goods and services in International Classes 35 and 41, together with all goodwill associated wi th the use of the Trademark, as further described in Exhibit A attached hereto and incorporated herein by this reference.
This assignment includes , without limitation, all rights and benefits relating to the Trademark, including all causes of action and rights to recover for past, present and future infringements thereof.
Company represents and warrant s that: ( i) it is the sole and exclusive owner of the Trademark; (ii) the Trademark is free and clear of all liens, claims, encumbrances, or adverse rights of any third party; (iii) it has full right, power, and authority to execute this assignment and transfer the Trademark to City.
Upon execution of this Amendment, Company shall retain no rights, title, or interest in or to the Trademark, whether legal, equitable, or beneficial, and shall ease all use of the Trademark, except as expressly provided in Section 1(c) herein.”
4. Section 1 of the Agreement shall be amended by adding the following text as Section 1(c):
“City grants to Company an exclusive, irrevocable, gratis license to use the Trademark “STAGE RED” in connection with concert venues located fifty (50) miles or more from the Venue; provided that City retains the right to operate and use the Trademark for i ts own business purposes , as provided for in the Agreement . The license is non -assignable (a) without City’s prior written consent, which shall not be unreasonably withheld ; or (b) in accordance with Section 7 of the Agreement . Unless earlier terminated in accordance with this Agreement, the license shall continue for the duration of this Agreement.
Company shall use the Trademark in a professional manner, consistent with the reputation of City and the Trademark, and shall comply with all reasonable quality control standards, brand guidelines, and operational requirements that City may establish from time to time, provided that City gives Company written notice of any new standards at least thir ty (30) days prior to their effective date.
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Company shall not use City’s name in conjunction with the Trademark, nor use the Trademark in any manner that disparages, dilutes, or harms City or the value of the Trademark. Company shall promptly notify City o f any known unauthorized use, infringement, or misuse of the Trademark by any third party, and shall cooperate with City in any legal or administrative action City chooses to take to protect the Trademark. City shall have the right, but not the obligation, to pursue such enforcement action, at its discretion.
City may terminate the License for breach of this provision , at any time, by giving fourteen (14) days written notice of termination to Company, during which time Company shall have the opportunity to cure the cause and/or reason(s) for termination provided in the written notice, and if so corrected, such termination shall not occur.
Upon termination, Company shall immediately cease all use of the Trademark and remove it from all materials and concert venues within ten (10) business days of receipt of notice from City. This license is granted solely for the purpose of operating concert venues and selling merchandise associated therewith, as specified herein , and does not grant any rights to utilize the Trademark except as expressly set forth in this Agreement.”
5. Section 3 of the Agreement shall be amended by adding the following text as Section 3(b):
“As consideration for the sale, assignment, transfer, and conveyance of the Trademark from Company to City, City shall reimburse Company for all reasonable costs and expense incurred in connection with the acquisition of the Trademark, including legal fees incurred in preparing this A greement, as well as staff time and administrative expenses reasonably associated with the processing, registratio n and transfer of the Trademark, as set forth in Exhibit B attached hereto and incorporated herein by this reference.” The existing text of Section 3 shall be designated as Section 3(a) and shall remain in full force and effect.
6. Section 5 of the Agreement is hereby amended to read as follows:
“The Term of this Agreement shall be for twenty (20) years following the date upon which the Venue opens to the public, which occurred on June 15, 2024.”
7. Section 5 of the Agreement shall be amended by adding the following text:
“Upon expiration of the initial Term, this Agreement shall automatically renew for up to five (5) successive one (1) year renewal terms unless either Party is in default under this Agreement at the time of renewal and such breach remains uncured following any applicable notice and cure periods set forth in this Agreement. Neither Party shall unreasonably withhold, condition, or delay renewal, and any refusal to renew must be based on substantial and documented noncompliance with this Agreement.
For purposes of this Section, “notice and cure periods” shall mean that the non-breaching Party must provide breaching Party written notice describing the alleged material breach 560
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in reasonable detail, and breaching Party shall have sixty (60) days from receipt of such notice to cure such breach to non-breaching Party’s reasonable satisfaction. A breach shall be deemed “uncured” only if non-breaching Party fails to (i) commence cure within the applicable cure period, (ii) diligently pursue cure to completion, or (iii) fully remedy the breach within the applicable cure period. If breaching Party cures the breach within such period, the breach shall be deemed resolved and shall not constitute a basis for non- renewal under this Agreement.”
For purposes of this Agreement, “default” or “for cause” shall mean any failure by the breaching Party, or any of the breaching Party’s respective agencies, contractors, licensees, or representatives to perform or comply with any material obligation, representation, warranty, covenant, or standard under this Agreement, including, without limitation, the following:
A. Reputational Harm / Morals Clause
Any act, omission, event, or condition that is reasonably likely to:
(i) harm, disparage, or adversely affect the reputation, goodwill, or public image of the non-defaulting Party or the respective Intellectual Property of the non- defaulting Party; or
(ii) associate the Intellectual Property with conduct, events, uses, sponsors, partnerships, messaging, or activities that are unlawful, discriminatory, hateful, defamatory, politically extreme, conflict with or dilute the Intellectual Property or brand or otherwise are inconsistent with generally accepted community standards of the brand.
B. Payment or Consideration Failures
Failure to make any required payments or deliver agreed consideration (if any) when due, subject to a limited cure period.
C. Other Material Defaults
Any other material breach of this Agreement that remains uncured beyond the applicable notice and cure period; provided, however, that breaches involving reputational harm or unlawful conduct shall be deemed incurable if immediate termination is reasonably necessary to protect the non-breaching Party.
8. Except as modified herein, the Agreement shall remain unaffected and continue in full force and effect and is hereby deemed ratified and confirmed. This Amendment shall be deemed incorporated into and make a part of the Agreement.
9. This Amendment maybe executed in counterparts and delivered electronically, each of which shall be deemed an original and all of which together shall constitute one instrument.
SIGNATURE PAGE FOLLOWS
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CITY OF FONTANA RED HEAD INC.
By: _________________________ By: _________________________ Matthew Ballantyne Name:
City Manager
ATTEST:
By: _________________________
Germaine Key
City Clerk
APPROVED AS TO FORM:
By: _________________________
Ruben Duran
Assistant City Attorney
562
Exhibit "A"
EXHIBIT "A"
Stage Red
Drawing-c1.pdf
563
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Stage Red
Spec-c1.pdf
564
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565
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566
Exhibit "B"
EXHIBIT "B"
City of Fontana
invoice July 2026.docx
567
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568
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569
16498.00504\45167294.3
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MERCHANDISING ADDENDUM
Merchandising Addendum dated as of the ____ day of August, 2026 by and between Red Head Inc., a California corporation, P.O. Box 5395, Novato, CA 94948 (hereinafter referred to as “ Company”) and City of Fontana, a California municipal corporation located 8353 Sierra Avenue, Fontana, California 92335 (hereinafter referred to as “City”). The Company and City may be referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, Company has the sole and exclusive right to use and to license others to use the name and likeness of Sammy Hagar (hereinafter referred to as “Artist”) for the purposes of merchandising and marketing; and
WHEREAS, Artist is a popular performer in the entertainment industry; and WHEREAS, City owns and operates a live performance venue entitled Stage Red, A Sammy Hagar Venue (“Venue”); and
WHEREAS, Company and City are parties to a Naming Rights Agreement dated September 30, 2022; and
WHEREAS, on August ___, 2026, Company and City entered into that First Amendment to the Naming Rights Agreement, pursuant to which, among other things, Company assigned, transferred and conveyed to City all of its right, title and interest in and to the trademark “STAGE RED” (the “Trademark”); and
WHEREAS, Company and City desire to enter into this Merchandising Addendum to supplement the Naming Rights Agreement to introduce provisions related to merchandising rights, whereby the terms and conditions set forth hereinafter.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and undertakings herein contained, and for other good and valuable considerations, Company and City agree as follows:
1. DEFINITIONS: All capitalized terms used herein shall have the same meaning as in the Agreement, unless otherwise defined herein.
A. “Term” shall mean the period commencing on August ___, 2026 and continuing on a co -terminus basis with the Naming Rights Agreement , unless earlier terminated pursuant to this agreement.
B. “City’s Licensed Subject Matter” shall mean the intellectual property identified and described in Exhibit A-1 attached hereto, in cluding, without limitation, any names, symbols, emblems, designs, depictions, characterizations, likenesses, visual representations , trademarks, logos, copyrights, and other materials specifically set forth in the exhibit.
C. “Company’s Licensed Subject Matter” shall mean the intellectual property identified and described in Exhibit A-2 attached hereto, including, without limitation, any names, symbols, emblems, designs, depictions, characterizations, likenesses, visual represe ntations, trademarks, logos, copyrights, and other materials specifically set forth in the exhibit.
D. “Licensed Subject Matter ” shall mean City’s Licensed Subject Matter and Company’s Licensed Subject Matter.
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E. “Products” shall mean merchandise items approved by Company and City embodying any of the Licensed Subject Matter. Products may include without limitation, T-shirts, jerseys, sweatshirts, hats, programs, posters, pictures, stickers, buttons and lights.
F. “Actual Cost” of the Products shall mean all costs actually incurred by the respective party in its design (including artwork), manufacturing and shipping of the Products and registering of trademarks and/or copyrights therefor, all as evidenced by invoices and bills paid by the respective party. For purposes hereof, no overhead and/or interest shall be included in the calculation of the Actual Cost of the Products.
2. GRANT OF LICENSES.
A. Company’s Grant of License to City. Company hereby grants to City, and City hereby accepts from Company, subject to the terms hereof, the sole and exclusive right and license to use Company’s Licensed Subject Matter:
i. To manufacture Products or have Products manufactured during the Term; and
ii. To distribute and sell Products through (i) physical locations within a fifty (50) mile radius of the Venue, and (ii) through the related websites and social media accounts of City and Venue, provided that such distribution and sales comply with the terms of this Agreement.
B. City’s Grant of License to Company. City hereby grants to Company, and Company hereby accepts from City, subject to the terms hereof, the sole and exclusive right and license to use City’s Licensed Subject Matter:
i. To manufacture Products or have Products manufactured during the Term; and
ii. To distribute and sell Products through (i) physical locations outside a fifty (50) mile radius of the Venue , and (ii) any website or social media accounts of its choosing, provided that such distribution and sales comply with the terms of this Agreement.
3. MERCHANDISING STANDARDS.
A. Each the City and Company agree that all use of the other Party’s Licensed Subject Matter shall be solely on merchandise manufactured by or for the applicable Party in accordance with artistic standards approved by the other Party. Prior to the manufacture of any merchandise, the submitting Party shall deliver to t he reviewing Party, via electronic mail , graphic representation s of the proposed merchandise for review and approval . The reviewing Party shall have thirty (30) days from receipt thereof to approve or provide written comments. The reviewing Party’s failure to respond within such period shall constitute approval of the proposed merchandise.
The review of the proposed merchandise shall be l imited to determining whether the merchandise meets reasonable artistic standards consistent with the nature of the merchandise. Approval shall not be unreasonably withheld, conditioned or delayed. 571
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No merchandise displaying either Party’s Licensed Subject Matter shall be manufactured by the other Party without such prior approval.
B. In the event that the applicable artistic standards approved under this Agreement are not maintained throughout the period of manufacture, upon written notice specifying the affected merchandise item, including the product name, SKU, or production batch, and reasons why such standards are not met, the non-compliant Party shall immediately discontinue the manufacture and distribution of only the specific merchandise item identified in such notice. Such discontinuation shall not preclude such Party from manufacturing and distributing other merchandise items that meet the quality standards.
C. Each Party shall manufacture, or have manufactured on its behalf , only so many Products as such Party reasonably calculates are required for sale in connection with the license granted to it hereunder.
D. City shall provide Company, upon reasonable request and no more than quarterly, with an inventory summarizing the number and type of Products on hand with respect to the Venue. Company shall provide City, upon reasonable request and no more than quarterly, with an inventory summarizing the number and type of products on hand relating to any other City Licensed Subj ect Matter, ot her than STAGE RED.
E. Each Party shall pay its own costs and expenses in connection with the merchandising of the Products including production, manufacturing, packaging, shipping, distribution, sales personnel and concessionaires.
F. The Parties agree that all of its sub licensees shall be subject to the other Party’s prior written approval, such approval not to be unreasonably withheld.
City agrees to sell Company a reasonable number of Products for Company’s personal use at a price equal to City’s Actual Costs therefor plus five percent (5%) plus shipping. Said Products shall be delivered to Company at the address below upon receipt by City of payment in full. Said payment shall be deemed excluded from royalty bearing gross receipts as described herein.
Red Head Inc.
P.O. Box 5395
Novato, CA 94948
4. ARTWORK.
A. Prior to using any designs, packaging, advertising, or other advertising material, or other materials that include the other Party ’s License Su bject Matter in connection with Products (hereinafter collectively the “Artwork”), the submitting Party shall submit such Artwork to the reviewing Party for prior review and approval. The reviewing Party shall be deemed to have granted approval with respect thereto if it does not notify the submitting Party, in writing, to the contrary (stating specific objections) within thirty (30) days after receipt thereof.
Any Artwork submitted by a Party for use by the other Party shall remain the submitting Party’s Artwork and shall be deemed approved for use unless expressly 572
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stated otherwise in writing or unless such Artwork is materially altered in any way by the non-submitting Party. By submitting its Artwork for use by the other Party, the submitting Party grants the other Party the right to use such Artwork in the manufacture, distribution, marketing, and sale of Products. Each Party represents and warrants that it will either own the Artwork or otherwise has the right to grant the other Party the license to use the Artwork as provided herein.
B. Each Party shall be responsible for all costs associated with the creation of its respective Artwork and all right title and interest in and to the elements comprising same shall be owned by the Party that created such Artwork; provided, however, that each Party shall retain all right, title and interest in and to its respective Licensed Subject Matter. After the end of the Term, neither Party shall have any rights whatsoever to use or exploit any Artwork that contains or incorporates the other Party’s Licensed Subject Matter for any purpose.
C. Each Party agrees that, subject to the terms and conditions of this Agreement, the other Party’s Artwork may be used, copied, reproduced and/or exploited by the receiving Party in any manner in connection with the manufacture of the Products.
D. To the extent that the Products embody either Party’s Licensed Subject Matter, the Party owning such Licensed Subject Matter may provide reasonable instructions regarding the form, placement and other details of the Licensed Subject Matter on the Products, including, without limitation, placement of the required copyright, trademark and/or service mark notices on the Products. In connectio n therewith, the other Party shall, at its own cost, therefore, use its best efforts to comply with all legal requirements.
E. Each Party acknowledges the value of the publicity and good will associated with the other Party’s Licensed Subject Matter, and in such connection, acknowledges that such good will exclusively belongs to the Party owning such Licensed Subject Matter.
F. Each party reserves all rights pertaining to its own respective Licensed Subject Matter except as specifically granted hereunder.
5. ROYALTIES.
A. Company’s License to City (Company’s Licensed Subject Matter). In consideration of the rights and license herein granted in Section 2 , City hereby agrees to pay to Company, a royalty equal to fifty percent (50%) of the Gross Profits derived from the sale of Products pursuant to the terms hereof.
For purposes of this Section, “Gross Profits” means the gross amounts actually received by City from such sales, less the direct cost of manufacturing or producing the Products (including materials and production costs), and less applicable sales taxes, value added taxes, and any equivalent taxes collected and remitted to the appropriate taxing authority, without deduction of any other kind.
B. City’s License to Company (City’s Licensed Subject Matter). No royalty shall be payable to City for Company’s use of the trademark “STAGE RED” pursuant to the license grant set forth in Section 2. However, with respect to Company’s use of any oth er City Licensed Subject Matter , Company shall pay to City a royalty equal to fifty percent (50%) of Gross Profits received by Company from the sale of Products incorporating such City Licensed Subject Matter.
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For purposes of this Section, “Gross Profits” means the gross amounts actually received by Company from such sales, less the direct cost of manufacturing or producing the Products (including materials and production costs), and less applicable sales taxes, value added taxes, and any equivalent taxes collected and remitted to the appropriate taxing authority, without deduction of any other kind.
6. ACCOUNTING.
A. Within thirty (30) days after the end of each quarterly period during the Term, each Party shall provide a formal accounting of Gross Profits derived from the sale of Products from the prior quarterly period and shall pay or, if applicable, shall credit Company all royalties due, if any, in connection with the sale of Products for such quarterly period.
B. Such accounting shall include detailed concession reports, a statement of all Gross Profits derived from the sale of the Products indicating the number and description of each item of the Products sold and the gross sales prices of each such item less applicable taxes, and the calculation of any royalties payable to the other Party.
C. Each Party shall keep accurate books of account governing all transactions involving the Products. Company, or its duly authorized representative, shall have the right at any time, but in no event later than two (2) years after the date that each accounting is rendered to Company, at its sole expense, to audit the books and records of City with respect to the sale of the Products, upon reasonable notice to City; provided, however, that said audit is conducted at a time and place determined solely by City so as not to unreasonably interfere with City’s business.
City shall have thirty (30) days following receipt of such report to review and dispute the findings in writing. The parties shall work in good faith to resolve any disputed items.
Likewise, City or its duly authorized representative , shall have the right at any time, but in no event later than five (5) years after the date that each accounting is rendered to City, at its sole expense, to audit the books and records of Company with respect to the sale of the Products, upon reasonable notice to Company; provided, however, that said audit is conducted at a time and place determined by Company so as not to unreasonably interfere with Company’s business. Company shall have thirty (30) days following receipt of such report to review and dispute the findings in writing. The parties shall work in good faith to resolve any disputed items.
If any audit determines that an underpayment has occurred, and such determination is not successfully disputed, interest on the amount of the underpayment shall accrue at a rate of ten percent (10%) per annum, commencing thirt y (30) days following final resolution of the dispute (or, if undisputed, thirty (30) days following delivery of the audit report), and continuing until the date such underpaid amounts are paid in full.
No amounts shall be payable, and no interest shall a ccrue, with respect to any disputed amounts unless and until such dispute is resolved, except as expressly provided herein.
7. WARRANTIES AND REPRESENTATIONS.
A. Each Party hereby warrants and represents to other Party that it has the exclusive right and authority to grant to the other Party the rights granted herein. 574
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B. Each Party hereto warrants and represents that it is under no disability, restriction or prohibition, whether contractual or otherwise, with respect to its rights to execute this Agreement, to grant the rights herein granted and to perform its obligations hereunder.
C. Each Party warrants and represents that none of the artwork furnished or to be furnished by such Party or its agents pursuant to the terms hereof, nor the exploitation or use thereof in accordance with the terms hereof, will violate or infringe upon any common law or statutory law or rights of any party, including without limitation contractual rights, tra demarks, copyrights, and rights of publicity and privacy.
D. Each Party acknowledges that no rights in the other Party ’s Licensed Subject Matter are granted under this Agreement except as otherwise expressly provided herein, and, except as so provided, each Party reserves all rights in and to it respective Licensed Subject Matter.
E. City will not enter into any agreement relating to the Company Licensed Subject Matter for commercial tie-ups or combination sales of any kind, nor will City give away Products as premiums or otherwise without Company’s prior written consent.
F. Company will not enter into any agreement relating to City’s Licensed Subject Matter, other than the “STAGE RED” trademark, for the commercial tie -ups, combination sales, or promotional giveaways of any kind without City’s prior written consent.
G. The Parties will not make or authorize any use, direct or indirect, of the Licensed Subject Matter in any manner not expressly permitted under this Agreement and it will not knowingly sell Products covered by this Agreement to persons who intend or are likely to re-sell them in any manner other than as set forth herein.
H. Company shall use City’s Licensed Subject Matter solely in accordance with the terms and scope of this Agreement. Any use of City’s Licensed Subject Matter outside the scope of this Agreement shall require City’s prior written consent.
I. Neither Party shall harm, misuse or bring into disrepute the other Party’s Licensed Subject Matter.
J. Neither Party shall create or incur any expenses chargeable to the other Party without the other Party’s prior written approval.
K. Neither Party shall use the other Party’s intellectual property in any manner that disparages, dilutes, or otherwise harm the other Party or the value of its intellectual property. Each Party shall promptly notify the other of any known unauthorized use, infringement, or misuse of the other Party’s intellectual property by any third party, and shall cooperate with the other Party in any legal or administrative action such Party elects to take to protect its intellectual property. Each Party shall have the right, but not the obligation, to pursue such enforcement action with respect to its own Trademark, in its sole discretion.
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8. INDEMNIFICATION.
The Parties hereto shall indemnify, defend, protect, save and hold each other harmless from and against any and all actions, claims, suits, losses, ju dgments, penalties, liabilities, damages, costs and expenses (including without limitation reasonable attorney’s fees and court costs) of whatever kind and nature imposed on, incurred by or asserted, brought or made against either Party arising out of the other Party’s breach of any of its representations or warranties made pursuant to this Agreement or through the sole negligence or intentional acts of its officers, directors, employees, or representatives. The Parties hereto shall give each other prompt written notice of any such action, claim or suit and the Party so noticed shall have the opportunity, at its option, to participate in the defense thereof through counsel of its own choice at such Party’s sole cost and expense.
9. INSURANCE.
Prior to the sale of any Products, the Parties shall, at its own expense, obtain and maintain during the Term hereof a Products Liability Insurance Policy from a recognized insurance company qualified to do business in the State of California. Said policy shall name the receiving Party and as additional insureds against any claims, suits, losses, or damages arising out of the use of the Products and any alleged defects in the Products. Said policy shall be in an amount of not less than Five Million Dollars ($5,000,000) . The receiving Party shall be provided with a certificate of insurance evidencing the existence of said policy and the coverage of receiving party. Said policy shall provide that receiving party shall be given notice by said insurance company at least ten (10) days prior to t he cancellation or expiration of the policy.
10. INFRINGEMENT.
City and Company shall use its best efforts to protect each Party’s rights in and to the Licensed Subject Matter and the Products, including without limitation using their best efforts to discover, prevent and prohibit the illegal sale of Products and/or items of merchandise similar to Products by unlicensed third parties. Each Party hereto shall promptly notify the other of an infringement or other unauthorized exploitation of either Party’s Licensed Subject Matter or Products by any third party.
11. TERMINATION.
A. If either Party hereto breaches any of the material terms and conditions of this Agreement, the Party claiming such breach shall have the right, if it so elects, to serve upon the Party alleged to be in breach of the Agreement a written notice of its intention to terminate this Agreement and the Party alleged to be in breach shall thereupon have a period of thirty (30) business days within which to remedy said breach. If the Party alleged to be in breach fails to so remedy said breach, then upon the expiration of said thirty (30) business day period this Agreement shall automatically terminate.
B. Termination of this Agreement pursuant to the provisions of this clause shall be without prejudice to any other rights which either party may otherwise have against the other.
C. If either Party hereto becomes insolvent or files a petition in bankruptcy, or if a petition in bankruptcy is filed against either Party, or either Party makes an assignment for the benefit of creditors or makes any arrangement pursuant to any bankruptcy law or a receiver is appointed, this Agreement may be automatically terminated by the other Party at its election.
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D. If at any time during the Term hereof by reason of any act of God, fire, earthquake, flood, explosion, strike, labor disturbance, civil commotion, act of government, its agencies or officers, any order, regulation, ruling or action of any labor union or association of artists, musicians, composers or e mployees affecting Company, Artist or City, its subsidiaries or affiliates or the industry in which it is or they are engaged or any shortage of or failure or delays in the delivery of materials, supplies, labor or equipment or any other cause or causes be yond the control of Artist, Company, and/or City, the performance of Company’s or City’s obligations hereunder is delayed, hampered, interrupted or interfered with or otherwise becomes impossible or impracticable, and if such condition exists for ninety (90) consecutive days or for a total of ninety (90) days in any six (6) month period during the Term, then either Party may upon notice to the other terminate this agreement.
12. ASSIGNMENT.
Neither Company nor City shall assign this Agreement without the prior written consent of the other Party, except that Company shall have the right to assign this Agreement to any subsidiary, or to any person, firm or corporation owning or acquiring a substantial portion, fifty one percent (51%), of Company’s stock or assets.
13. NOTICES.
All notices and statements provided for herein shall be in writing and, together with all payments provided for herein, shall be sent by United States mail, postage prepaid, or sent by email to the address set forth above or such other address as may be designated in writing from time-to-time. A copy of all notices to City shall be sent to Best Best & Krieger, c/o City of Fontana City Attorney, 2855 E, Guasti Road, Suite 400, Ontario, CA 91761. A copy of all notices to Company shall be sent to Berman Entertainment and Technology Law, 600 California Street, 11 th Floor, San Francisco, CA 94108. Properly addressed notices delivered or sent as provided herein shall be deemed given when post -marked if delivered by mail, or on the date thereof if sent by email.
14. MISCELLANEOUS.
A. This Agreement sets forth the entire understanding of the Parties hereto relating to the subject matter hereof. No modification, amendment, waiver, termination or discharge of this Agreement or any of the terms or provisions hereof shall be binding upon either of the Parties unless confirmed by a written instrument signed by the Parties. No waiver by either Party of any term or provision of this Agreement or of any default hereunder shall affect such Party’s rights thereafter to enforce such term or provision or to exercise any right or remedy in the event of any other default, whether or not similar.
B. If any provision of this Agreement shall be held void, voidable, invalid or inoperative, no other provision of this Agreement shall be affected as a result thereof, and, accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, voidable, invalid or inoperative provision had not been contained herein. Notwithstanding the foregoing, in the event any provision held void, voidable, invalid or inoperative shall impair either Party’s right to receive royalties here in under or impair either party’s right to manufacture, distribute and sell Products in accordance with the Terms hereof, then this agreement shall be deemed to terminate.
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C. Nothing herein contained shall constitute a partnership or a joint venture between the Parties. Neither Party hereto shall have the right to obligate or bind the other in any manner whatsoever nor hold itself out contrary to the terms of this paragraph, and neither Party shall become liable for any representation, act or omission of the other contrary to the provisions hereof.
D. In the event of any action, suit or proceeding arising from or based upon this Agreement brought by either Party hereto against the other, each Party shall bear its own attorneys’ fees and other costs incurred in connection with such action, suit, or proceeding, and no party shall be entitled to recover such fees or costs from the other.
E. Except as otherwise provided in this Agreement all rights and remedies herein or otherwise shall be cumulative and none of them shall be in limitation of any other right or remedy.
F. This Agreement has been entered into in the State of California, and its validity, construction, interpretation and legal effect shall be governed by the laws of the State of California applicable to contracts entered into and performed entirely within the State of California. The parties hereto agree that any lawsuit or proceeding initiated by one party against the other in connection with this Agreement shall be brought in San Bernardino California.
IN WITNESS THEREOF, the parties hereto have signed this agreement on the date first set forth above.
CITY OF FONTANA
By:
Matthew Ballantyne, City Manager
RED HEAD INC.
By:
Name:
Title:
ATTEST:
By:
APPROVED AS TO FORM:
By:
Ruben Duran
Assistant City Attorney
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