LICENSE AGREEMENT
This License Agreement (the "License") is made and entered into as of May 17, 2022, by and between the City of Marysville, a California charter city ("City") and Phantom Fireworks Western Region, LLC., a California corporation ("PHANTOM").
RECITALS
A. City owns a lot located near 14th and B Streets in Marysville, California ("Site").
B. PHANTOM desires to use a portion of Site, approximately 80 feet wide by 80 feet long.
C. PHANTOM does not have a written agreement with the City to use the Site. PHANTOM desires to enter into such a written agreement. The City has agreed to grant a license to PHANTOM to use the Site for certain firework sales purposes, upon the terms and conditions of this License.
NOW, THEREFORE, in consideration of their mutual covenants contained herein, and subject to the terms, conditions, and provisions hereof, the City and PHANTOM agree as follows:
1. LICENSE
City hereby grants a revocable, nonexclusive license to PHANTOM to use the City Land shown on Exhibit A for certain purposes as described in Section 4. PHANTOM hereby accepts the City Land in its condition existing as of the commencement of this License, subject to all "Applicable Requirements," as defined in Section 16, below. No legal title or leasehold interest in the City Land shall be deemed or construed to have been created or vested in the PHANTOM by anything contained in this License.
2. TERM
The term of this License shall commence at no on June 27, 2022 (the "Commencement Date") and continue until noon on July 5, 2022. PHANTOM recognizes that this License is temporary, and that PHANTOM may be required to vacate the City Land at any time.
3. LICENSE PAYMENTS
No payments shall be required for this License.
4. USE AND PURPOSES
PHANTOM may use the City Land solely for the purpose of providing firework sales.
Amplified outdoor entertainment shall be prohibited on City land at all times. TNT's use of the City Land is subject to all Applicable Requirements. PHANTOM shall obtain City's prior written approval for any proposed improvements or uses to the City Land (including design review and use permit approval), shall comply with all planning, building and fire regulations if fences or gates are installed, and shall insure that outdoor use complies with applicable zoning code regulations of City of Marysville.
2 5. UTILITIES
PHANTOM shall, at its sole cost and expense, pay for any and all utilities and services necessary for the operation of the City Land. PHANTOM acknowledges that City makes no representations regarding the availability or adequacy of any such utilities or services. City shall maintain City owned streetlights within public right-of-way(s).
6. TAXES
PHANTOM shall pay all applicable real estate and personal property taxes, possessory interest taxes, business or license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges, general and special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind which are assessed, levied, charged, confirmed, or imposed by any public authority upon the City Land, its operations or the license fee.
7. ENTRY BY CITY
PHANTOM shall permit City and its agents and employees to enter upon the City Land at any time and from time to time during the term of this License in order to inspect the same or to perform any other public duty or responsibility of City.
8. SITE RESTORATION
Immediately after the cancellation, termination or earlier expiration of the License, PHANTOM shall remove any PHANTOM improvements and restore the City Land and any improvements existing on the Commencement Date to the condition existing on the Commencement Date.
9. DEFAULT
If Phantoms in default under this License, City may pursue any and all available remedies, including the immediate termination of this License. A default is defined as an uncured violation of any term of this license within 24 hours after notice is given from City to TNT. Upon any such termination, or any other termination or mutual cancellation hereof, PHANTOM shall turn over the City Land to City and proceed with site restoration pursuant to Section 8, above.
10. FREE FROM LIENS
PHANTOM shall pay when due all claims for labor and materials furnished or alleged to have been furnished to or for PHANTOM at or for use in, on or about the City Land, which claims are or may be secured by any mechanic's or material men’s lien against the City Land.
PHANTOM shall give City not less than 10 days' notice prior to the commencement of any work, and City shall have the right to post notices of non-responsibility in or on the City Land as provided by Applicable Requirements. If PHANTOM shall, in good faith, contest the validity of any such lien, claim or demand, then PHANTOM shall, at its sole expense, defend and protect itself, City, and the City Land against the same and shall pay and satisfy any adverse judgment 3 that may be rendered thereon before the enforcement thereof against City, the City Land or any interest therein. If City shall require, PHANTOM shall furnish to City a surety bond satisfactory to City in an amount equal to one and one-half times such contested lien claim or demand, indemnifying City against liability for the same as required by law to hold the free from the effect of such lien or claim the City Land. In addition, City may require PHANTOM to pay City's attorneys' fees and costs in participating in such action if City decides it is to City's best interest to do so.
11. INDEMNITY
PHANTOM shall indemnify, protect, defend (with counsel acceptable to City) and hold the City and the City of Marysville ("City") and their employees and representatives harmless of and from any and all claims, liabilities, losses, costs, damages, injuries and expenses (including costs, expenses and attorneys' fees) arising out of or in any way related to or resulting directly or indirectly from the use or occupancy of the City Land, the activities of TNT, its agents, employees, contractors or invites in or about the City Land and any default or breach by PHANTOM in the performance of any obligation of PHANTOM under this License; except to the extent caused by or arising by reason of the sole negligence or willful misconduct of City.
12. INSURANCE
(a) PHANTOM shall, during the entire term hereof and during any period of prior occupancy, at its sole cost and expense, obtain, maintain, and keep in full force and effect, with City and City named as additional insures therein, the following insurance:
(I) Commercial General Liability insurance applying to the use and occupancy of the City Land, and the business operated thereon by PHANTOM or any other occupant. Such insurance shall include Broad Form Contractual liability insurance coverage insuring all of PHANTOM’s indemnity obligations under this License. Such coverage shall have a minimum combined single limit of liability of at least $10,000,000 and a per occurrence limit of at least $5,000,000. All such policies shall be written to apply to all bodily injury, property damage, personal injury, and other covered loss, however occasioned, occurring during the policy term. Such coverage shall include damage resulting from work performed on the City Land whether by City, PHANTOM or contractors or subcontractors working directly or indirectly for either. The insurance required by this paragraph shall provide for severability of interests; shall provide that an act or omission of one of the named or additional insures shall not reduce or avoid coverage to the other named or additional insures; and shall afford coverage for all claims based on acts, omissions, injury, and damage, which claims occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period. (ii) Any other form or forms of insurance as City may reasonably require from time to time in form, in amounts and for insurance risks against which a prudent owner would protect itself.
(b) All policies required hereunder shall be with insurers licensed to do business in California having a Best's AIX rating or better (and if Best's no longer exists, an equivalent rating), and policies shall be in form satisfactory to City. PHANTOM agrees that certified 4 copies of each insurance policy will be delivered to City as soon as practicable after the placing of the required insurance, but in no event later than the day on which PHANTOM takes possession of all or any part of the City Land. All policies shall contain an undertaking by the insurers to notify City in writing not less than 30 days prior to any material change, reduction in coverage, cancellation, or other termination thereof. PHANTOM shall furnish City with proof of renewal or binders for new insurance at least 30 days before the expiration date of each policy.
13. DESTRUCTION OF CITY LAND
In the event that the City Land is substantially destroyed by fire, earthquake, weather, elements, casualty, war, insurrection, riot, public disorder, any authorized act on the part of any governmental authority or any other cause or happening, then this License shall automatically terminate. In the event that such destruction does occur, and this License terminates, PHANTOM shall have the responsibility to clear any debris caused by the event of destruction and proceed with site restoration pursuant to Section 8.
14. ASSIGNMENT AND SUBLETTING
PHANTOM shall have no right to assign or otherwise transfer or convey all or any of TNT's rights or interest under this License.
15. WAIVER
The waiver by either party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein.
16. COMPLIANCE WITH LAWS
PHANTOM shall promptly comply at its sole cost with all federal, state, county, City or local governmental City laws, statutes, codes, ordinances, standards, rules, regulations, requirements and orders, covenants and restrictions of record, life and fire safety and similar requirements and requirements of any fire insurance underwriters or rating bureaus, now in effect or which may come into effect at any time (collectively "Applicable Requirements"), relating in any manner to the City Land. The Applicable Requirements shall include the Americans with Disabilities Act of 1990, 42 U.S.C. §12101 et seq., as amended, and the California Environmental Quality Act of 1970, California Public Resources Code §21000, et seq., as amended.
17. WASTE; NUISANCES; CAMPING
PHANTOM shall not commit, or suffer to be committed, any waste upon the City Land; nor shall PHANTOM maintain or suffer to be maintained, any nuisance or any other act or thing which may disturb the enjoyment or use of any other lands or public rights of way adjacent to the City Land. PHANTOM shall also not be permitted to camp or stay overnight on the City Land.
18. SUCCESSORS AND ASSIGNS
5 The terms, conditions, and provisions herein contained shall, subject to the provisions as to assignments, apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto.
19. REMEDIES CUMULATIVE
No remedy herein conferred upon or reserved to City or PHANTOM shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.
20. PRIOR AGREEMENTS
This License contains the entire agreement between City and PHANTOM and may be modified only in writing signed by City and TNT.
21. HEADINGS
The headings of this License are inserted only for reference and do not affect terms, conditions, or provisions hereof.
22. NOTICES
All notices or communications must be in writing and shall be deemed to have been given at the following times: (a) on the date of service if mailed by overnight service or served personally or (b) on the second business day after mailing if first class mail, postage prepaid, to the following addresses.
Notice to City: City of Marysville
526 "C" Street
P.O. Box 150
Marysville, CA 95901
Attn: Jim Schaad, City Manager
Notice to TNT: American Promotional Events, Inc. - West 8151 Power Ridge Road
Sacramento, CA 95826
Attention: Aaron Crawford
Either party may change its address by written notice to the other party given in the manner set forth above.
23. OPERATING COSTS AND EXPENSES
PHANTOM shall, at its sole cost and expense, furnish all labor, equipment, and expenses necessary for the operations and maintenance of the City Land.
24. MAINTENANCE
6 PHANTOM shall, at its sole cost and expense, keep and maintain the City Land in good and sanitary order, condition, and repair. City shall have absolutely no obligations to repair or maintain all or any portion of the City Land.
25. HAZARDOUS MATERIALS PROHIBITED
(a) PHANTOM shall not (before, during or after the term of this License) cause or permit any Hazardous Material (as defined in Section 25(b) below) to be brought, kept, used, generated, released, or disposed in, on, under or about the City Land by TNT, or its members, agents, employees, contractors or invites in violation of Applicable Requirements. PHANTOM shall indemnify City from and against any breach by PHANTOM of the obligations stated in the preceding sentence, and agrees to defend (with counsel acceptable to City) and hold City harmless from and against any and all claims, liability, losses, damages, costs and expenses (including diminution in value of the City Land, or any portion thereof, damages for the loss or restriction on, and sums paid in settlement of claims, fines, penalties, attorneys' fees, consultant's fees, and expert's fees) which arise during or after the term of this License as a result of such breach. This indemnification of City by PHANTOM includes death of or injury to person, damage to any property or the environment and costs incurred in connection with any investigation of site conditions and any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental City or political subdivision because of any Hazardous Material present in, on, under or about the City Land (including soil and water contamination) which results from such a breach. Without limiting the foregoing, if the presence of any Hazardous Material in, on, under or about the City Land caused or permitted by PHANTOM(before, during or after the term of this License) results in any contamination of the City Land, PHANTOM shall promptly take all actions at its sole expense as are necessary to return the same to the condition existing prior to the introduction of such Hazardous Material; provided that City's approval of such actions, and the contractors to be used by PHANTOM in connection therewith, shall first be obtained. This indemnification of City by PHANTOM shall survive the expiration or sooner termination of this License. (b) As used in this License, the term "Hazardous Material" means any hazardous or toxic substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California, or the United States Government. The term "Hazardous Material" includes, without limitation, any substance, material or waste which is (i) defined as a "hazardous waste" or similar term under the laws of the jurisdiction where the City Land is located; (ii) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317); (iii) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource, Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903); (iv) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601); (v) hydrocarbons, petroleum, gasoline, crude oil or any products, byproducts, or fractions thereof; or (vi) asbestos in any form or condition.
26. TIME OF ESSENCE
Time is of the essence with respect to the obligations to be performed under this License. 7 27. HOLDING OVER
PHANTOM has no right to use or retain possession of the City Land or any part thereof beyond the expiration or earlier termination of this License. If PHANTOM remains on the City Land or any part thereof after the expiration or earlier termination of this License, PHANTOM shall pay City a license fee equal to $500 per month, together with all other sums due under this License, for the entire period of TNT's wrongful holding over. If PHANTOM fails to fully surrender the City Land or any part thereof upon the expiration or termination of this Lease despite City's demand to do so, PHANTOM shall indemnify, defend, protect, and hold City harmless from all claims, losses, costs, expenses, damages, and liabilities, including attorneys' fees, City incurs as a result of TNT's failure to surrender.
28. ATTORNEYS' FEES
If either party named herein shall bring an action or proceeding to enforce the terms hereof or declare rights hereunder, the prevailing party in any such action, on trial or appeal, shall be entitled to its reasonable attorneys' fees to be paid by the losing party as fixed by the court.
IN WITNESS WHEREOF, the parties hereto have executed this License in duplicate on the day and year first above written.
City of Marysville, CA
By: ____________________________________________
Jim Schaad, City Manager Date
American Promotional Events, Inc., - West
By: ____________________________________________
Aaron Crawford, Area Manager Date
Attest:
_________________________________
Nicole Moe, City Clerk Date