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LICENSE AGREEMENT BETWEEN
THE CITY OF HUNTINGTON BEACH AND
FLOWERS OF THE SKY ENTERTAINMENT LLC
THIS LICENSE AGREEMENT (“Agreem ent”) is made and entered into this _____ day of ___________________________, 2025 (“Effective Date”), by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation and charter city (“City”), and Flowers of the Sky LLC, hereinafter referred to as “Licensee.” City and Licensee are sometimes hereinafter individually referred to as a “Party” and hereinafter collectively referred to as the “Parties.”
RECITALS
WHEREAS, Licensee is the United States producer of the event titled Sym phony of Flowers. Symphony of Flowers is an acclaimed outdoor multimedia show, path, and experience, featuring thousands of lights and special effects across a field of multimedia flowers and activities (the “Event”); and
WHEREAS, Licensee plans to License, or use, occupy, and/or utilize the Event Premises for a period of months of each year of the Term. This period between the conclusion of the City’s Civil War Reenactment and the American Revolutionary War Reenactment, or “season,” provides for setting up by Licensee of equipment, sets, or other objects on the Event Premises for the Events, a period of producing the Event for audiences, followed by time to take-down and removal of equipment, sets, or other objects from the Event Premises; and
WHEREAS, City is owner of record of that certain real property located i n the State of California, County of Orange, City of Huntington Beach commonly known as Huntington Central Park (the “Central Park”); and
WHEREAS, it was the City that approached the Symphony of Flowers to co me to the City. It is an event viewed by the City that would bring artistic value to the community and at the same time provide economic benefit to the City of Huntington Beach and the taxpayers; and
WHEREAS, City recognizes the value of hosting the Symphony of Flowers for the enjoyment of its residents and the global community, the economic benefits brought to the City, and the showcasing of art, natural beauty, resources, enterprises, attractions, climate and parks of the City of Huntington Beach; and
WHEREAS, Licensee desires and City agrees to allow Licensee certain ri ghts to use a portion of the Central Park as shown on the drawing attached he reto and incorporated herein as Exhibit “A” (the “Event Premises” or “Licensed Premises”) for the purpose of presenting the Event to the public as further described below (the “Licensed Use”); and
WHEREAS, City desires to grant such License to Licensee on the terms a nd conditions set forth herein,
NOW, THEREFORE, in consideration of the mutual promises and covenants made by the Parties and contained herein and other consideration, the v alue and adequacy of which are hereby acknowledged, the Parties agree as follows:
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AGREEMENT
1. RECITALS. The foregoing recitals are true and correct, and the same are incorporated herein by this reference.
2. DEFINITIONS.
2.1 “Branding” means the promotion of the Event by means of advertising and distinctive design, including but not limited to trademarks and copyrights associated with the Event.
2.2 “Business day” means a day on which City hall is open for business.
2.3 “Chapter 13.54” refers to Chapter 13.54 of the Huntington Beach Municipal Code and any amendments thereto.
2.4 “City Parking Spaces” refers to those public parking spaces loc ated at the Event Premises which are avail able for public use and not alrea dy encumbered or reserved by a law enforcement agency (to provide law enforcement for the Event).
2.5 “Event Participant” or “Attendee” or “Patron” means a person, b usiness or organization that performs, participates in (inclusive of Vendors), or is showcased in the Event.
2.6 “Food and/or Beverage Vendor” means a Vendor who prepares and s ells, or simply sells, food and/or beverage to Event attendees.
2.7 “HBMC” means the municipal code of the City of Huntington Beach.
2.8 “Vendor” means all Event Particip ants, exhibitors and any other persons, businesses and organizations associated with the Event, who offer a product or item, for sale or for giveaway, to Event attendees, and/or engage in some form of promotion to Event attendees.
2.9 “Event” means the Symphony of Flo wers outdoor multimedia show, path, and experience, featuring thousands of lights and special effec ts across a field of multimedia flowers and activities.
2.10 “Event Premises” means that portion of the Central Park as show n on the drawing attached hereto and incorporated herein as Exhibit “A.”
2.11 A “Ticket” is a coupon or certificate of admission to be sold, one to each person, for admission for attendance of an Event.
3. LICENSE.
3.1 Grant. City grants a license to Licensee to use the Event Premi ses, during the term provided for in Section 5, below, for the Licensee to manage and operate the Event, and for no other purpose, and in accordance with the terms of this Agreement.
3.2 Purpose. The purpose of the grant of this license is for both t h e u s e b y Licensee of public property, for the purpose of managing and operating both the Event as well as
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specified activities related and incidental thereto, as well as the articulation of certain conditions, duties, obligations and benefits for Parties that are attendant to the grant of this license.
3.3 Disclaimer of Tenancy. Licensee is not a tenant or lessee of City and holds no rights of tenancy or leasehold in relation to the Event Premises. In consideration of City’s grant of this license, Licensee specifi cally and expressly waives, re leases, and relinquishes any and all rights to assert any claim of right, privilege or interest in t he Event Premises other than the rights expressly granted by both this Agreement as well as an applicable Specific Events Permit.
3.4 Disclaimer of Liability. Licensee covenants, agrees and warrants that City is not liable for any loss, dama ges or injury to the person, or property of any person, whatsoever at any time, occasioned by or arising out of any act or omissio n of Licensee, or of anyone acting as the agent, employee, customer or representative of Licensee, pursuant to the uses, activities or occupancy provided for by both the license granted under this Agreement.
3.5 Disorderly Persons. Notwithstanding the license provided herein, City shall have the right to refuse entran ce to the Event, or remove and e ject from the Event, any person associated with the Event or present at the Event, whose conduc t, in the reasonable judgment of the City, is objectionable, disor derly, disruptive or in violat ion of any law. The indemnification provisions of this Agreement shall apply to any claim or cause of action arising from such refusal or ejectment.
4. TERM
The Term of this License is three (3) years, commencing on the Effective Date, and concluding exactly three years to the day from the Commencement Date (the “Term”). Although, as provided below, the Event occurs only six (6) months of each year. If mutually agreed by City and Licensee, an extension of one (1) year may be provided following the conclusion of the initial Term. No occupation prior to or after the Term will occur unles s the Licensee has obtained the prior written consent of City. Notwithstanding the foregoing, i t is understood that Licensee may begin surveying and site marking prior to the beginning of the Term at no additional cost to the Licensee.
5. USE OF EVENT PREMISES
5.1 SEASONAL: Although the Term of the License is measured in year s, the Event may only take place in a series of months each year betwe en the conclusion of the City’s Civil War Reenactment and the beginning of the City’s American Revolutionary War Reenactment (that span of months between, as “Season”). This Season is typ ically between the conclusion of Labor Day weekend and the beginning of the Month of March; although exact dates may vary. At all times, this License, the Licensee, and the timing of the Ev ent is subject to, and dependent on, the timing of the conclusion of the City’s Civil War Reenactment and the beginning of the City’s American Revolutionary War Reenactment. As such, this License Agreement contemplates and provides for Licensee to use the Event Premises for the Season. The Season is continuous and may not be broken up over a larger period of time.
During the other months outside of the Season, as defined above , the Licensee will not occupy, use, store property/equipment, place objects, or otherwise utilize in any way any portion of Central Park or the Event Premises. Accordingly, the Event Premises that is used by Licensee
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during the Season for set up, production, and take-down of equipment, staging, and other structures shall be cleared by Licensee and restored to the Event Premises ’ natural state and condition the other months of the year. The Event Premises shall be used by L icensee for the purposes of presenting the Event to the public , including other ancillary a ctivities related to the Event, including but not limited to the following:
5.1.1 The necessary preparation, set up, tear down and installation o f Licensee’s equipment on the Event Premises for the presentation of the Event, including, but not limited to, tents, signs, fences, generators, and lighting equipment.
5.1.2 The operation of concession stands for the sale of merchandisin g products and food on the Event Premises including the sale and consumption of nonalcoholic and alcoholic beverages.
5.1.3 The holding of promotional and me dia events by Licensee or its sponsors.
5.1.4 The operation of a ticket box office for the sale of Event tickets.
5.1.5 The installation of vans, offices, public services areas, kitch en or other facilities for the Event and operations.
5.1.6 Operation of a tram, at Licensee’s option, within Huntington Central Park to shuttle participants from offsite parking to the Event Premises.
5.2 Licensee shall fulfill all requirements traditionally required o f a C i t y Specific Event, including but not limited to, business licensin g, fire permits, and building and planning permits.
5.3 Licensee shall abide by all publ ic safety regulations as set fo rth by the Huntington Beach Fire Department and the Huntington Beach Police Department.
5.4 Licensee shall be provided with all necessary access to the Eve nt Premises at any time during the Term, including its right to conduct the Event on any day during the Term.
5.5 The normal operation of the Event shall be limited to the hours of 5:00 pm to 10:30 pm, local time, at which time the last show must be co ncluded, and guests with tickets must exit the Event Premises by 11:00 pm each night, unless otherwise agreed by the City.
5.6 Licensee shall conduct routine ma intenance and inspections as n eeded during daylight hours. Licensee shall make every attempt to keep noise level at a minimum during maintenance and inspections.
The Event Premises shall be used for the Licensed Use described herein and for no other purposes whatsoever. Licensee has personally inspected the Event Premise s and the surrounding area and evaluated its suitability as a location for Licensee to occupy and use for conducting the Licensed Use. Licensee accepts the Event Premises in its present physic al condition as of the Commencement Date and agrees to make no demands upon Licensor f or any improvements or alterations of the Event Premises or elsewhere on the Real Property.
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6. CONDITION OF PROPERTY AS-IS
Licensee understands and agrees that the Event Premises shall be made available as-is by City. Licensee shall not be liabl e for any pre-existing conditi on of the Event Premises. Unless otherwise agreed, Licensee will be responsible for all costs associated with materials necessary to make the Event Premises suitable for the presentation of the Event.
7. EVENT IMPACT
7.1 Event Premises Restoration. Subject to Section 27, Licensee upo n conclusion of the Event shall pr omptly and timely restore the E vent Premises to its condition as existed before the commencement of the Event and any Event acti vities. Such Event Premises restoration duties of Licensee include but are not limited to immediate cleaning by the Licensee of the entire Event Premises as well as immediate removal by Licen see of all trash and debris generated or caused by the Event and any Event activities.
7.2 Event Damages. Licensee is responsible for all costs and expenses to repair and/or replace any equipment, facilities or property damaged, including Event Premises restoration as provided for in Section 7.1 above, as a result of the Event and/or Licensee’s use and occupation of the Event Premises.
7.3 Hazardous Substances. Licensee shall comply with all federal, s tate, and local laws and regulations relating to hazardous materials and waste and shall timely comply with the orders of any governmental agencies relating thereto. Prior to any Event activities Licensee shall request that a representative from the Environmental Heal th Division of the Orange County Health Care Agency review hazardous material storage and use to determine that compliance with local laws and regulations has been obtained, and Licensee shall provide verification of the same to City. Licensee shall at its own cost and expense remove all flammable and hazardous materials and waste as defined by state, federal, or local law immediatel y at the conclusion of the Event.
Licensee shall make available for inspection to the City all re cords relating to the maintenance, release, mitigation, and cleanup of any hazardous substances on the premises of the Event Premises arising from or caused by the uses provided for in this Agreement.
8. UTILITIES AND SERVICES
Licensee shall secure an account, separately meter, and be res ponsible for its own use of any electrical or water services as needed for the Event. Based on needs, Licensee will arrange for temporary electrical, water and sewage hookup and use during op erations, subject to availability onsite. City shall collaborate with Licensee to find suitable c onnection points and will establish policies and procedures for the use of City infrastructure in support of the Event.
9. PARKING
City will collaborate with Licensee to find suitable parking a ccommodations near the Licensed Premises for the visitors of the Event. Licensee will submit a Parking Plan for City’s review and approval, which may include the following options:
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a) overflow parking in the Huntington Central Park Sports Comp lex, when not in use, or on the nearby dirt lot, referred to as the “Marion Lot, ” with an option to provide a shuttle service;
b) the reserved use of parking spaces in the Central Library pa rking lot on Friday, Saturday, and Sunday evenings during hours where Central Library is closed;
c) the reserved use of parking spaces in the Gothard Parking lot for disabled placard only parking.
10. PAID PARKING
Licensee shall charge a fee of at least $10 per space for parking and may charge a fee of up to $20 per space for parking in this reserved area, unless a different amount is agreed by Licensee and City in writing Parking fees collected in the areas shall b e split between City and Licensee, with 60% payable to City and 40% payable to Licensee with the City to provide parking attendant staffing. This revenue sharing between City and Licensee shall exist and not be modified throughout the Term (including extensions and/or options) of this Agreement. Where applicable, the proceeds for City portion shall be paid to the City by Lice nsee within two weeks (14 days) after the close of each month in which Events occur and shall be placed in an account specifically for capital improvement projects to directly benefit Central Li brary and Central Park, including the restoration of the Library fountains and park irrigation systems.
11. TICKET SALES
A “Ticket” as define above, is sold, one to each person, for a ttendance of an Event. All Ticket sales gross revenue for admission to, attendance of, vie wing of, or participation in, the Event, shall be split between City and Licensee.
YEAR 1: In year one (1) of this Agreement, City shall receive $3 per Ticket for all Tickets sold, with no limit on number of Tickets sold or cap on revenue to City.
YEAR 2: In year two (2) of this Agreement, City shall receive $5 per Ticket for all Tickets sold, with no limit on number of Tickets sold or cap on revenue to City.
YEAR 3: In year three (3) of this Agreement, City shall receiv e $5 per Ticket for all Tickets sold, with no limit on number of Tickets sold or cap on revenue to City.
11.1 GROUPS: In the event Licensee has large group Events for organizations, corporations, or other groups, i. e., “non-individual” Ticket Sales type Events, the “Ticket Sales” for that Event will be measured by the number of people of the organization, corporation, or group, that is admitted to the Event such that the City still realizes a “per person” or “individual in attendance” benefit from each Event.
11.2 TIMING OF PAYMENT: This revenue s plit between City and License e shall exist and not be modified throughout the Term (including extensions and/or options) of this Agreement. The proceeds for City portion shall be paid to the City by Licensee within two weeks after the close of each month in which Events occurred and may be deposited by the City into the City’s general fund and used for any purpose.
11.3 MINIMUM GUARANTEE: Licensee guarantees a minimum of $150,000 per year to the City in total revenue unless the agreement is t erminated by either the City or
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Licensee in accordance with the agreement. So, if Ticket Sales are less than expected, or the share of the City’s portion of total, aggregate Event revenue falls below and annual total of $150,000 in any year, Licensee shall make up the difference for that year.
12. SPONSORSHIP REVENUE
YEAR 1: In year one (1) of this Agreement, City shall receive 0% in Sponsorship Revenue.
YEAR 2: In year two (2) of this Agreement, City shall receive 20% of all Sponsorship Revenue.
Y E A R 3 : I n y e a r t h r e e ( 3 ) o f t h i s A g r e e m e n t , C i t y s h a l l r e c e i ve 20% of all Sponsorship Revenue
This revenue split between City and Licensee shall exist and no t be modified throughout the Term (including extensions a nd/or options) of this Agreemen t. The proceeds for City portion shall be paid to the City by Licensee within two weeks after the close of each month in which Events occurred and may be deposited by the City into the City’s general fund and used for any purpose
13. FOOD AND BEVERAGE REVENUE
YEAR 1: In year one (1) of this Agreement, City shall receive 0% of all Food and Beverage Revenue.
YEAR 2: In year two (2) of this Agreement, City shall receive 20% net revenue for all Food and Beverage Revenue.
YEAR 3: In year three (3) of this Agreement, City shall receiv e 20% net revenue for all Food and Beverage Revenue
This revenue split between City and Licensee shall exist and no t be modified throughout the Term (including extensions and/or options) of this Agreement. The proceeds for City portion shall be paid to the City by Licensee within t wo weeks after the close of each month in which Events occurred and may be deposited by the City into the City’s general fund and used for any purpose.
14. PAYMENTS TO CITY FROM EVENTS
Licensee agrees to pay City within two weeks after the close o f each month in which Events occurred the City’s share of the proceeds as described in Sections 10 and 11 by way of money wire transfer to the City’s account. The account information for wire transfers will be provided by the City to the Licensee by separate side letter.
15. SPECIAL BENEFITS
Licensee agrees to provide 1,000 Event Tickets directly to loca l, Huntington Beach based charities each year. Licensee al so agrees to promote and host a Special Library Event for the Anniversary of the Library on or near the anniversary of the Central Library. This Special Library Event will offer discounted Ticket Sales.
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Licensee agrees to provide production of the event and City will receive ticket revenue for 5 mutually agreeable days, off-peak (Mon-Thurs) performances. Event to receive Food and Beverage revenue during the five (5) days to help offset performance costs.
16. PROACTIVE ACCOUNTING REPORTING
In the interest of full disclosure, transparency, and public i nterest, along with the actual payment of proceeds from Parking, Ticket Sales, and donated Tic kets to the City as described in Sections 10, 11, and 13 above, Licensee shall submit to the Cit y a written report of all/gross Parking, Ticket Sales, and total number of individuals in atten dance of each Event and net remittance to the City. This reporting shall show calculations for proceeds apportionment among the City and Licensee, show amounts retained by Licensee, and show amounts remitted to the City, and include any donated Tickets. The form of this accounting can be by letter, email, or any other convenient form of communication so long as the parties agree i t is an official record sufficient and reliable in form and substance to satisfy the requirements any applicable State standards for accounting and for any future/potential financial audit.
16.1 Auditing Requirements. Licensee shall comply throughout the term of the Agreement with any requested audit by either City or third party on behalf of City.
17. CERTAIN LICENSEE OBLIGATIONS
17.1 Compliance with Applicable Laws. Licensee shall comply througho ut the term of the Agreement with all applicable federal, state and local laws and regulations, as well as all applicable rules and regulations established by City, both in effect as of the Effective Date and as both enacted and amended fro m time-to-time. This includes c ompliance with the American Disabilities Act, and any other federal, state and local law th e governs art and/or entertainment events such as this on this scale. Accordingly, Licensee under stands the need to procure and maintain at its cost, bathrooms, pedestrian pathways and access , and any other amenity required as a matter of law or common sense.
17.2 Environmental Review. The Event requires an environmental revie w and mitigation pursuant to the California Environmental Quality Act (CEQA). City reserves the right to require the application of a ppropriate mitigation measures t o address potential environmental impacts that may be identified dur ing the environmental review process. Licensee agrees to pay for the cost of any necessary environmental review as required by law and as required by the City for this Event unless the agreement is terminated by either the City or Licensee in accordance with the agreement. This City shall not contribute to any such review. Licensee agrees that nothing in this Agreement shall require City to exercise its legislative o r police power, or to make any other approval, except as both authori zed by law as well as consisten t with the City’s municipal and charter authority.
17.3 Taxes and Assessments. Licensee sh all pay promptly and discharg e all lawful taxes and assessments which may be levied by the federal , state, county, City or other tax levying body on any taxable interest of Licensee as well as all taxes and assessments on taxable personal property of whatever nat ure owned by Licensee and loca ted on premises of the Event Premises, except for any real estate or similar land taxes appl icable to the Event Premises itself.
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Subject to the foregoing, Licensee shall promptly pay all excis e, license and permit fees of whatever nature applicable to the operation of Licensee’s business.
17.4 Event Participant Liability Waivers. Licensee shall ensure that each Event participant executes a hold harm less liability waiver, in a for m acceptable to City (with City consent to not be unreasonably w ithheld), pursuant to which Eve nt participant both assumes the risk of injury, damages, or death, as well as Event participant releases the City from all liability in connection with the Event.
17.5 Service Contractors. At least fifteen (15) business days prior to the commencement of the Event, Licensee shall submit to City a writ ten list of all persons or entities who will provide a service to or on behalf of Licensee for such Event. Licensee shall promptly update such written list and prov ide to City whenever there is a determination by Licensee additional persons or entities, not on the original list, will provide a service to or on behalf of Licensee for such Event.
17.6 Improvements and Safety Systems. Licensee shall design and cons truct such improvements and safety systems for the Event as may be re quired by governmental authorities in accordance with plans and specifications approved by such authorities and the City.
17.7 Evacuation and Safety Plan. Licensee shall develop an Evacuatio n and Safety plan for the Event that a ddresses and mitigates any pote ntial threats to public safety that may reasonably arise from the c onduct of the Event, that shall be approved by the City no later than ten (10) days prior to the commencement of any Event.
17.8 Limited License to Use Event Branding. Licensee hereby grants to City the limited, non-assignable, non-sublic ensable, non-exclusive licen se to use and deploy, during the term, Branding for an Event, in all reasonable forms for advertising and marketing, but only to the extent related to promotion of t he Event, and subject in each i nstance to Licensee’s prior written approval, which will not be unreasonably withheld by Licensee.
17.9 Operations, Equipment and Personnel. Except as otherwise provided for by this Agreement or an applicable Specific Events Permits, Licens ee shall provide for (or cause to be provided) all Event-related equipment, supplies, personnel ( including volunteers), training of personnel (including volunteers), Event manuals/programs, Event set-up and tear down, and all other technical and operational aspects of the Event.
17.10 Event Costs. Except as otherwise provided for by this Agreement o r a n applicable Specific Events Permits, Licensee shall be solely responsible for all expenses and costs necessary for the promotion, management and operation of the Event.
17.11 Local Suppliers. Licensee shall consider, to the best extent po ssible and in compliance with applicable laws, to use local suppliers for the promotion, management and operation of the Event, subject to production needs.
17.12 Local Accommodations. Licensee shall make reasonable efforts to both use properties located within the City of Huntington Beach, for Event-related accommodations needs, as to both it and all participan ts, exhibitors, attendees, and any other persons and organizations associated with the Event, subject to production needs.
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17.13 Complimentary Sponsorship Package for City. Licensee shall provide City with a sponsorship benefits package (for use solely by City) to include, but not be limited to:
17.13.1 Prominent space for City usage from which City may pro mote City, such as a booth at a prime Event location; and
17.13.2 Prominent signage (advertising only the City) at certa in mutually approved prime locations throughout the Event Premises; and,
17.13.3 Prominent placement of City ’s logo on selected public Event- related printed and internet material produced by Licensee, together with that of other sponsors or partners of the Event; and,
17.13.4 Prominent placement of City’s logo and City’s banner advertisements on all Event websites managed or controlled by L icensee, together with that of other sponsors or partners of the Event. City advertising mater ial shall be provided by City to Licensee and use as-provided shall not be unreasonably withheld.
17.14 Complimentary Hospitality Package for City. Licensee shall prov ide City with a hospitality package (for use solely by City) to include 400 complimentary VIP sponsor hospitality passes for the Event per year for use by City’s emp loyees and representatives, which passes grant access to Event VIP/priority seating areas.
18. LICENSE PAYMENT
In consideration of the License granted to Licensee herein, Li censee shall pay to City a one-time license fee of Fifteen Thousand US Dollars ($15,000.00).
Should City and Licensee mutually decide to exercise the one (1) year extension as outlined in Section 4 “Term” above, the fee for the extension shall be a n additional Ten Thousand US Dollars ($10,000.00) and the City’s revised share for all Event ticket sales into the future will be $5 per ticket.
There shall be no other form of consideration or payment to Ci ty, and all revenues derived from the Event, except for parking fees and ticket sales as des cribed in Section 10 and 11 above, shall belong to Licensee exclusively. The Payment described her ein is for the License granted to Licensee only. Licensee remains responsible for the payment of all taxes and charges related to Licensee’s use of the Licensed Premises, including but not limited to, the collection and payment of sales tax related to Licensee’s sale of merchandising produc ts and food on the Licensed Premises during the presentation of the Event.
19. EVENT PREMISES KEPT SAFE
At all times the Event Premises is under control of the Licens ee for the Season, and specifically during the periods immediately before, during, and after the Events series takes place, the Licensee shall, and hereby does guarantee that, the Event P remises will be safe; it will be suitable such that even when the Event Premises is set up, but not in active use, accessible portions, if any, will be safe for pedestrians, animals, children on bicycles or any other device, and any other being to enter, traverse, and use in a foreseeable way without harm, or even a slight risk of harm,
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to themselves. As such, Licensee assumes the role and responsibility herein to take any corrective measures necessary to make any and all conditions of the Event Premises safe for use during Events and when Events are not taking place. Additionally, it i s the responsibility and role of the Licensee to ensure the security, storage, and delivery of the C ity’s portion of the Ticket Sales referenced in Section 11.
20. HOLD HARMLESS: IDEMNIFICATION AND DEFENSE
Event: Licensee hereby agrees to protect, defend, indemnify, and hold harmless City, its officers, elected or appointed o fficials, employees, agents, an d volunteers from and against any and all claims, lawsuits, litigation, damages, losses, expenses , judgments, demands and defense costs, and consequential damage or liability of any kind or nature, however caused, including those resulting from death or injury to attendees or patrons of the Event, or City or Licensee’s employees and damage to City or Licensee’s property arising directly or i ndirectly out of the obligations or operations herein undertaken by Licensee, caused in whole or in part by any negligent act or omission of the Licensee, any subcontractors, anyone directly o r indirectly employed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the City.
Non-Event: Licensee also hereb y agrees to protect, defend, indemnify, and hold harmless City, its officers, elected or appointed officials, employees, agents, and volunteers from and against any and all claims, lawsuits, litigation, damages, losses, expe nses, judgments, demands and defense costs, and consequential damage or liability of any kin d or nature, however caused, including those resulting from any death or injury to individu al on or near the Event Premises when Events are not taking place, or any private property or re al property near or adjacent to the Event Premises when Events are not taking place, or City or Licensee’s employees and damage to City or Licensee’s property arising directly or indirectly out of the obligations or operations herein undertaken by Licensee, caused in whole or in part by any negli gent act or omission of the Licensee, any subcontractors, anyon e directly or indirectly emp loyed by any of them or anyone for whose acts any of them may be liable, including but not limited to concurrent active or passive negligence, except where caused by the active negligence, sole negligence, or willful misconduct of the City.
Environmental: Licensee and Ci ty agree to a limited joint defense to any legal challenges to this License under the City’s Measure C or the Environmental Review and reporting conducted and performed by ESA pursuant to CEQA. That limited joint defense includes that Licensee shall make its selection of legal counsel of its choice and fully fund and bear any/all costs and expenses related to its legal counsel or defense of such legal actions. The City will undertake to join the defense with its attorney resources. The City will cooperate an d support Licensee in defense of any legal challenge to this License under the City’s Measure C or the Environmental Review pursuant to CEQA. As part of the defense, Licensee hereby agrees to protect, defend, indemnify, and hold harmless City, its officers, elected or appointed officials, employees, and agents from and against any and all claims, lawsuits, litigation, damages, loss es, expenses, judgments, demands and defense costs, and conseq uential damage or liability of an y kind or nature, however caused, including those resu lting from any challenge brought by any par ty the License under the City’s Measure C or the Environmental Review and reporting conducted and performed by ESA pursuant to CEQA. Notwithstanding the foregoing, Licensee may instead elect to terminate this Agreement
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in the event of any legal challenges to this License under the C i t y ’ s M e a s u r e C o r t h e Environmental Review and reporting conducted and performed by ESA pursuant to CEQA.
Except for any legal challenges as described in the preceding p aragraph, Licensee will conduct all defenses at its sole cost and expense and City shal l approve selection of Licensee’s counsel. This indemnity and defe nse obligation shall apply to all claims and liability, including but not limited to, any claims related to whether the approval of the Event by City, or the Event itself, is in compliance with applicable federal, state and local laws, and regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Licensee.
21. WORKERS COMPENSATION INSURANCE
Pursuant to California Labor Code Section 1861, Licensee ackno wledges awareness of Section 3700 et seq. of this Code, which requires every employer to be insured against liability for workers’ compensation; Licensee covenants that it will comply w ith such provisions prior to commencing performance of the wor k hereunder. Licensee shall ob tain and furnish to City workers’ compensation and employer’s liability insurance in an amount of not less than the State statutory limits.
Licensee shall require all subc ontractors to provide such work ers’ compensation and employer’s liability insurance for all the subcontractors' employees. Licensee shall furnish to City a certificate of waiver of subr ogation under the terms of the W orkers’ Compensation and Employer’s Liability Insurance and Licensee shall similarly req uire all subcontractors to waive subrogation.
22. GENERAL LIABILITY INSURANCE
In addition to the Workers’ Com pensation and Employer’s Liabil ity Insurance and Licensee’s covenant to defend, hold harmless and indemnify City , Licensee shall obtain and furnish to City, a policy of general public liability insurance , including motor vehicle coverage covering the use of the Licensed Premises. This policy shall in demnify Licensee, its officers, employees and agents while acting within the scope of their dut ies, against any and all claims arising out of or in connection with the use of the Licensed Pr emises, and shall provide coverage in not less than the following amount: combined single limit bo dily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000) per occurrence. If coverage is provided u nder a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000) per occurrence. If coverage is provided under a f orm which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000) for the use of the Licensed Premises. This policy shall name City, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to th e use of the Licensed Premises shall be deemed excess coverage and that Licensee’s insurance shall be primary.
Under no circumstances shall sa id above-mentioned insurance co ntain a self- insured retention, or a “deductible” or any other similar form of limitation on the required coverage.
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23. AUTOMOBILE LIABILITY INSURANCE
Licensee shall obtain and furnish to City an automotive liabil ity insurance policy covering the use of the Licensed Premises by it hereunder. This policy shall provide coverage for Licensee’s automotive liability in an amount not less than One Million Dollars ($1,000,000.00) per occurrence and a separate “Additional Insured Endorsement” page listing both the policy number and naming the “City of Huntington Beach, its officers, elected or appointed officia ls, employees, agents and volunteers” as additional insured on the endorsement. The abov e-mentioned insurance shall not contain a self-insured retention, “deductible” or any similar f orm of limitation on the required coverage except with the express written consent of City.
24. CERTIFICATE OF INSURANCE
24.1 Prior to any use of the Licensed Premises hereunder, Licensee shall furnish to City a certificate of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverage as required by this Agreement; the certificate shall:
24.1.1 provide the name and policy number of each carrier and policy;
24.1.2 state that the policy is currently in force; and
24.1.3 promise that such policy shall not be suspended, voided or canceled by either party, reduced in coverage or in limits except after thirty (30) days’ prior written notice; however, ten (10) days’ prior wri tten notice in the event of ca ncellation for nonpayment of premium.
24.2 Licensee shall maintain the foregoing insurance coverage in for ce during the entire Term of this License, including any extensions of the Term as provided herein.
24.3 This requirement for carrying th e foregoing insurance coverage shall not derogate from Licensee’s defense , hold harmless and indemnifica tion obligations as set forth in this Agreement. City or its representative shall at all times h ave the right to demand the original or a copy of the policy of insur ance. Licensee shall pay, in a prompt and timely manner, the premiums on the insurance hereinabove required.
25. SIGNS, BANNERS, & MARKETING
25.1 Following review and approval by City, Licensee may erect, at its own cost and expense, its own signs and banners on the Licensed Premises. Licensee shall bear the cost of the installation, repair, maintenance and removal of its own signs and banners.
25.2 Pursuant to Section 13, Licensee shall offer a special event to benefit the Library in collaboration with City. The City shall designate various non-profit organizations to be entered into a lottery to be chosen as the beneficiary of the tickets referred to in Section 13.
25.3 City shall make available street b anners and pennant locations throughout the City, when possible, at no additional cost to Licensee.
25.4 City shall assist Licensee with marketing on City social media pages, newsletters, and website.
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26. COMPLIANCE WITH MEASURE C
Licensee shall not use the Licensed Premises for any purpose t hat is prohibited by any law, statute, ordinance or governmental rule or regulation now in fo rce, or that may be enacted or promulgated in the future. In no event shall Licensee build an y permanent structure anywhere in Central Park or within the Event Premises. Only temporary structures that can be removed within one week, while leaving the subject property in the same condition it was in prior to the placement of the structure, may be erected or placed by Licensee in accor dance with this Agreement within the Event Premises.
27. TERMINATION AND SUSPENSION
City shall be entitled to immedia tely terminate this License Ag reement in case of failure by Licensee to comply with the payment of the License Fee.
In case of failure by Licensee to comply with any other terms or conditions of this License Agreement, City will first send notice to cure such default wit hin thirty (30) days, except in case of emergency or for any default that cannot be reasonably be resolved within such delay, in which case it shall provide a reasonable delay to cure. In the event Licensee does not remedy such default or take arrangement with City to remedy same in a delay agreed by the parties for any default that cannot be reasonably remedied within (30) days, City shall be able to pursue all available remedies under law, including specific performance, but excluding extra-judicial termination.
Licensee may terminate, without cause, within thirty (30) days after each year for year 2 and/or year 3. Licensee may not p erform the event in any other Orange County location during year 2 or year 3.
City may, without cause, terminat e by providing thirty (30) days notice after the first year.
Licensee to have the right to perform the event in any location, including Orange County.
27.1 Licensee shall be entitled to terminate this License Agreement upon the occurrence of any of the following events provided that the Lic ensee has timely applied for the required permits, licenses, authorizations, or consents for use of the Licensed Premises:
27.1.1 the failure by Licensee to obtain any of the required permits, licenses, authorizations or consents for the use of the Licensed Premises on conditions acceptable to Licensee, in which case this License Agreement may be termin ated by Licensee upon simple notice, and each party shall be discharged from any liability or obligation towards the other.
27.1.2 the failure by the City to comply with or perform any term, condition or covenant and to cure such event within thirty (30) days afte r Licensee gives the City written notice of such default and opportunity to cure to City, in whic h case Licensee shall be able to pursue all available remedies under law.
27.2 Should Licensee not be able to present the Event on the Licensed Premises at any time during the Term for any reason at its discretion, L icensee will have the option to terminate this License Agreement upon thirty (30) day notice. L icensee shall return the Licensed
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Premises to City pursuant to the terms of this License Agreemen t, and each party shall be discharged from any further liability or obligation towards the other.
28. FORCE MAJUERE
In the event either Party is prevented from performing any of its obligations, under either this Agreement, by reason of any event outside of such Party’s control, including, without limitation, fire, weather, unsafe conditions, volcano, explosion, flood, landslide, epidemic, acts of nature, war, terrorism, or other hostilities, strike, civil com motion, domestic or foreign governmental acts, orders, any court order stopping or preventing the Event, or regulations (“Force Majeure Event”), then such obligations of such Party during the duration of such Force Majeure Event, and for a reasonable time thereafter, will be suspended. In the case of cancellation of the Event due to a Force Majeure Event, the Parties agree to negotiate a date to reschedule such Event if practicable. If such canceled Event cannot reasonably be res cheduled or relocated within the City, neither Party shall be deemed to be in breach of this Agr eement solely because of such cancellation. Neither any such cancellation, rescheduling, or r elocation, nor the inability to reschedule or relocate, will, by itself, cause this Agreement to terminate.
29. RESTORE LICENSED PREMISES
END OF SEASON: At the end of the Seasonal timeframe for Event set up, production, and take-down, Licensee shall remove from the Licensed Premises all equipment, signs, structures, objects, and other personal property placed on the Licensed Pre mises and return the Licensed Premises to the City restored to the Premises natural state and condition.
END OF TERM: At the end of the Term or upon ear lier terminatio n of this License Agreement, Licensee shall remove from the Licensed Premises all equipment, signs, and other personal property placed by it on the Licensed Premises and ret urn the Licensed Premises to the City restored to the Premises natural state and condition. The Licensee may leave any pre-agreed materials used on the Licensed Premises or otherwise agreed to by City, which the Licensee shall be entitled to leave on the Licensed Premises at the end of the Term. On the last day of the Term (or as soon thereafter as is reasonably practical), a duly auth orized representative of the City and of Licensee shall together inspect the Licensed Premises to eva luate the state of the Licensed Premises. If the City is satisfied with the return condition of the Licensed Premises, the City agrees to sign the release form attached hereto as Exhibit “B.”
Licensee shall not be liable for any pre-existing condition; h owever, Licensee shall be liable for any damage occurring from the use of the Licensed Premises for the scope of the Event.
Licensee shall return at the end of Term and/or end of Season t he Licensed Premises in the condition in which it was received at the beginning of the Term ; a restoration fee of $50,000 annually to be paid by Licensee to City for the restoration of turf, foliage and other landscape impacts. The Licensee will allow City to perform essential land scaping and maintenance on City trees, foliage, and water systems with reasonable written notice.
30. ASSIGNMENT
This License is personal to Licensee, and Licensee shall have no right to assign its rights hereunder or to sublicense the Licensed Premises.
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31. NOTICES
All notices or demands to be given by either Party to the othe r shall be in writing and shall be deemed sufficiently given either when delivered in person or two (2) days after being sent by certified mail, return receipt r equested, postage prepaid, via email, or by a national air courier company that provides signature v erification of delivery to rec ipient, to the respective Parties at the addresses provided in this Section of this Agreement. The address to which any notice or demand may be given to either P arty may be changed from time to time by written notice to the other.
Notice Address:
To City – addressed to each: T o L i c e n s e e :
City Manager, City Attorney & City Clerk ____________________ ______ 2000 Main Street __________________________
Huntington Beach, CA 92648 __________________________
32. APPLICABLE LAW.
The existence, validity, and construction of this Agreement sha ll be determined in accordance with the laws of the state of California without ref erence to its conflicts of laws or principles; provided, that (i) any provision which may be held invalid shall be ineffective only to the extent of such invalidity a nd shall not invalidate any of t he remaining provisions, (ii) this License Agreement shall not be construed as creating either a L icenseeship, an agency or an employment relationship between the Parties, and (iii) the failure of any Party to insist at any time upon the strict performance of any provision or to act upon any right or remedy available to such Party, whether under the License Agreement or as a matter of la w, shall not be interpreted as a waiver or a relinquishment of any such right or remedy unless s pecifically expressed in writing, signed by such Party and neither the receipt, acceptance nor ap plication of any payment shall, without more, constitute such a writing.
33. MUNICIPAL POWERS.
Nothing contained in this Agreement shall be construed as a lim itation upon the powers and authority of City as a chartered city of the State of California.
34. RIGHTS AND REMEDIES.
The rights and remedies provided by this Agreement are given in addition to any other rights and remedies either Party may have by law, statute, ordinance or otherwise. All such rights and remedies are intended to be cumulative, and the use of any one right or remedy by either Party shall not preclude or waive its right to any or all other rights or remedies.
35. TIME IS OF THE ESSENCE.
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Time is of the essence in the performance of each and every pro vision contained within this Agreement.
36. DEFAULT.
Upon default by Licensee in perfo rmance of any of the terms and conditions required by this Agreement, City may give notice to Licensee and the reason s for the default. The written notice shall include the timeframe in which Licensee may cure t h e d e f a u l t . T h i s t i m e f r a m e i s presumptively (thirty (30) business days, but may be extended, or reduced in case of emergency, if circumstances warrant, as determined by City acting reasonab ly. Circumstances warranting a reduced timeframe to cure include, but are not limited to, when a default involves either public safety or immediate waste or damage to City property. If Licens ee does not cure the default by conclusion of noticed timeframe , then notwithstanding any provi sion of this Agreement to the contrary, City may terminate thi s Agreement, in whole or in par t at City’s sole discretion, upon written notice to Licensee, without prejudice to any other remedy to which City may be entitled at law, in equity or under this Agreement. Any failure on the part of City to give notice of Licensee’s default shall not be deemed to result in a waiver of City’s leg al rights or any rights arising out of any provision of this Agreement.
36.1 REMOVAL OF PROPERTY: In any event that Licensee leaves or allo ws any of its property to remain in any part of the Central Park a rea, including within the Event Premises, beyond the license permissions of this Agreement and without written consent of the City, the City shall be entitled to remove Licensee’s property with all costs of such removal to Licensee. Reimbursement of s uch costs to City by Licensee shall occur within thirty (30) days of City notification to Licensee.
37. NO ORAL OR IMPLIED WAIVERS OR MODIFICATIONS.
If either Party fails to enforce any of the provisions of this Agreement or any rights hereunder or fails to exercise any election provided in this Agreement, it will not be considered to be a waiver of those provisions, rights or elections or in any way affect the validity of this Agreement. The failure of either Party to exercise any of these provisions, rights or elections will not preclude or prejudice such Pa rty from later enforcing or ex ercising the same or any other provisions, rights or elections which it may have under this Agreement. No waiver will be of any force or effect unless set forth in a writing signed by the Party whose right is being waived. Subject to the immediately preceding sentence, no modifications to this Agreement will be binding upon the Parties unless modified, amended, cancelled, renewed, or extended in a writing signed by both Parties.
38. ENTIRE AGREEMENT.
This Agreement (including all exhibits hereto) sets forth the e ntire agreement and understanding of the Parties relating to the subject matter hereof, and, with respect to such subject matter, supersedes and replaces all prior agreements, arrangements and understandings, written or oral, between the Parties. Except as may be expressly set forth herein, there are no promises, conditions, representations, understanding, interpretations or terms of any kind as conditions or inducement to the execution hereof or in effect between the Parties.
39. INTERPRETATION.
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The section headings included in this Agreement are for convenience of reference only and will not affect or be utilized in construing or interpreting th is Agreement. If any term, clause or provision hereof is held invalid or unenforceable by an arbitra tor or a court of competent jurisdiction, such invalidity will not affect the validity or o peration of any other term, clause or provision and such invalid term, clause, or provision will be d eemed to be severed from this Agreement. Neither this Agreement nor any provision herein will be construed in favor or against either Party based on which Party drafted this Agreement or such provision.
40. NON-LIABILITY OF CITY OFFICERS AND EMPLOYEES.
No officer or employee of City s hall be personally liable to Li censee, or any successor in interest, in the event of any default or breach by City or for any amount which may become due to Licensee or to its successor, or for breach of any obligation of the terms of this Agreement.
41. MISCELLANEOUS
41.1 Authority: City represents and warrants that (i) it has the rig ht, power and authority to enter into and execute the present Agreement witho ut additional formality, and (ii) it is not party to any agreement which prohibits the City from entering into this Agreement. Licensee represents that it has the necessary rights, power and authority to enter into and execute the present Agreement.
41.2 Waiver: No waiver, whether wri tten or tacit, of any remedy or provisions of the present Agreement shall be deemed to constitute a waiver of any other provision hereof or a permanent waiver of the provision concerned, unless otherwise stated in writing by the party to be bound thereby.
41.3 R e l a t i o n s h i p : T h e P a r t i e s a r e acting herein solely as independe nt contractors. Nothing herein contained will create or be construed as creating a Licenseeship, joint venture, or agency relationship between the Parties. Each Party acknowledges and agrees that it neither has nor will give the appearance or impression of havin g any legal authority to bind or commit the other Party in any way. Each Party will be solely re sponsible for all wages, income taxes, worker’s compensation, and any other requirements for al l personnel it supplies in connection with this Agreement.
41.4 Intellectual Property: It is understood that all commercial, in tellectual property or other rights related to the Event or any of License e’s operations and projects shall belong to Licensee exclusively. Nothing in this Agreement or du ring its application shall be construed as providing to City any commercial, intellectual property or other rights related to the Event or any of Licensee’s operations and projects. For greater certainty and wit hout limitation, all intellectual property rights of any nature related to the E vent or any of Licensee’s operations and projects or any idea or concept discussed or shared in connection therewith between the parties shall belong to Licensee exclusively.
41.5 Accessory Agreement and Documents: Each of the parties shall, at the request of the other, execute all such agreements, instruments and documents as shall be reasonably necessary to give effect to the present Agreement or to facilitate its application and execution. Upon approval as to form by the City Attorney, City’ s Director of Community and
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Library Services is hereby authorized to execute such accessory agreements and documents on City’s behalf.
41.6 Counterparts: The present agreeme nt may be executed in one or m ore counterparts, each of which shall be deemed an original, and su ch counterparts together shall constitute one and the same instrument. This Agreement may be executed in several counterparts and all such executed counterparts shall constitute one (1) Agreement binding on all of the Parties in spite of the fact that all of the Parties have not signed th e same counterpart. This Agreement may be delivered via facsimile transmission or in electronic "pdf" or similar format with the same force and effect as if originally executed copies of it were delivered to all Parties.
41.7 Reasonableness: The Parties shall at all times act prudently, f airly, equitably, reasonably, promptly and in good faith in dealing wi th one another under this Agreement and shall not unreasonably withhold or delay any consents, approvals, authorizations, exercises of discretion, exercises of judgment or the like provided in this Agreement.
41.8 Headings and Gender: The section headings are for convenience o nly and shall have no legal significance. The masculine, feminine or n euter gender, and the singular or plural number shall be deemed to include the others whenever the context so indicates or requires.
The term “including” shall be deemed to mean “including, but not by way of limitation.
41.9 Cumulative Remedies: The various rights, options, elections, po wers and remedies contained in this Agreement shall be construed as cumu lative, and no one of them shall be exclusive of any of the others or of any other legal or equitable remedy which either Party might otherwise have in the event of a breach or default in the terms of this Agreement. The exercise of one right or remedy by such Party shall not impair its right to any other right or remedy until all obligations imposed on the other Party have been fully performed.
41.10 Attorneys' Fees: In the event of litigation or other proceedin g brought to enforce this License Agreement, e a c h p a r t y s h a l l b e a r i t s o w n at t o r n e y s ’ f e e s a n d c o s t s . T h e prevailing party will not be entitled to recover its attorneys' fees, costs, and expenses in connection with such litigation or other proceeding from the other party.
REST OF PAGE NOT USED
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IN WITNESS WHEREOF, the Parties have executed this License Agreement by and through their authorized officers on ______________, 2024.
L I C E N S E E : C I T Y :
By: _______________________________ __________________________ ___ P r i n t n a m e : M a y o r
Its:
A TTEST:
By: _______________________________
P r i n t n a m e : _____________________________ I t s : C i t y C l e r k
A P P R O V E D A S T O F O R M :
_____________________________
C i t y A t t o r n e y
I N I T I A T E D AND APPROVED:
______________________________
D i r e c t o r o f C o m m u n i t y and Library
S e r v i c e s
R E V I E W E D A N D A P P R O V E D :
______________________________
I n t e r i m C i t y M a n a g e r
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EXHIBIT “A”
SITE PLAN OF LICENSED PREMISES
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EXHIBIT “B”
FORM OF RELEASE
I, the undersigned, a duly authorized representative of City, acknowledge having inspected the site for which a License Agreement was issued (the "Licensed Premises") by City for the benefit of Licensee, and declare that the Licensed Premises has been returned to the City in a satisfactorily condition in accordance with the terms and conditions of the Agreement. Therefore, the City hereby waives all claims it may have against Licensee in respect to the return condition of the Licensed Premises.
By:_________________________________
Print name:
Title:
Date: _______________