SANTA’S WORKSHOP
LICENSE AND USE AGREEMENT
This LICENSE AND USE AGREEMENT (“Agreement”) is made and effective on [___________] (“Effective Date”) by and between the CITY OF MENIFEE , a California municipal corporation, (“City”) and the MENIFEE SANTA’S WORKSHOP , a California 501(c)(3) nonprofit corporation (“Partner”). City and Partner are referred to herein, individually, as a “Party” and collectively as the “Parties.”
RECITALS
A. City owns that certain property located in the City of Menifee located at 28971 Goetz Rd, Menifee, CA 92587 (the “Property”). The Property previously served as Fire Station No. 5 within the City, but has since been vacated as Fire Station No. 5 was relocated.
B. Partner is a community nonprofit corporation which partners with other public agencies, community, and service organizations to provide backpacks, school supplies, clothing, sports equipment, science and craft kits, and holiday gifts (generally “donated items”) to children from low-income families within the greater Menifee area.
C. Partner desires to utilize, and City desires to permit Partner to utilize the garage and adjacent storage area portion of the Property shown on Exhibit A attached hereto and incorporated herein by this reference (the “Premises”) for the storage of donated items, subject to all terms and conditions of this Agreement.
D. The covenants under this Agreement and City’s consent to Partner’s use of the Premises as described herein benefits the City of Menifee and its residents through enabling use of an otherwise vacant City-owned location and facilitating the activities of Partner’s public benefit efforts.
AGREEMENT
Section 1. Purpose of Agreement, Party Representatives.
A. License of Premises. City hereby grants Partner a limited, nonexclusive license to the Premises for the term of this Agreement for the limited purpose of storing the donated items, and for no other purpose. Without limiting the foregoing, Partner shall not utilize the Property or any portion thereof for vehicle storage, lodging, meeting space, or any other use not expressly permitted hereunder.
B. Access. Partner may access the Premises through the front driveway and entrance on the Property, including for vehicle parking for up to seven (7) vehicles while Partner staff, employees, agents, volunteers, and invitees (“Partner and Partner Personnel”) are onsite for the purposes permitted hereunder.
C. Representatives. Rebekah Kramer, Assistant City Manager, on behalf of City and Debbi Manion, President on behalf of Partner shall serve as their respective Party’s representative for the purposes of this Agreement (each, a “Representative”). Except as expressly identified otherwise, all communications to a Party hereunder shall be directed to that Party’s Representative. Either Party may change its Representative by written notice to the other Party.
D. No Property Right . This Agreement grants no property interest in the Property or Premises. Partner shall not create or cause to be imposed, claimed, or filed upon the Property, or any portion thereof, or upon City’s interest therein, any lien, charge or encumbrance whatsoever. If, because of any act of omission of Partner, any such lien, charge or encumbrance shall be imposed, claimed or filed, Partner shall promptly, at its sole cost and expense, cause the same to be fully paid and satisfied or otherwise discharged of record (by bonding or otherwise) and, to the extent permitted by law, Section 5 shall apply to such lien, charge, or encumbrance and costs incidental thereto.
The provisions of this Paragraph shall survive the expiration or termination of this Agreement. In the event that Partner shall fail to comply with the foregoing provisions of this Paragraph, City shall have the option of paying, sa tisfying or otherwise discharging (by bonding or otherwise) such lien, charge or encumbrance and Partner agrees to reimburse City, upon demand, for all sums so paid and for all costs and expenses incurred by City in connection therewith, together with interest thereon not to exceed three percent (3%) per annum, or the maximum amount permitted by applicable law, whichever is lower, until paid.
Section 2. Term and Termination
A. Term. The term of this Agreement shall begin on the Effective Date and shall end on the date which is twelve (12) months after the Effective Date unless the term of this Agreement is otherwise terminated or extended as provided in this Agreement.
B. Termination. Either Party may terminate this Agreement upon ninety (90) days’ written notice to the other Party.
Section 3. Use of the Premises.
A. Use Limited. Partner’s use of the Premises is limited to the scope of use described in Section 1 A and subject to Partner’s compliance with all terms and conditions of this Agreement. Partner may not use the Property for any other purpose, including for any illegal purpose or in any manner that constitutes a nuisance to others.
B. Property and Premises Provided As-Is.
i) The Premises and Property are provided on an “as -is” basis, and Partner takes and occupies the Premises without reliance upon any representation by City, or any of its officials , employees, agents or representatives (the “City and City Personnel”), or any other person, concerning the Premises, its fitness for Partner’s intended use or any other particular purpose of use, its value, or any other promise, representation or inducement not expressly set forth in this Agreement. To the extent Partner requires any materials or equipment for its use hereunder, Partner shall be solely responsible for providing, maintaining, and securing the same.
ii) Neither City nor City Personnel, has made any written or oral representation, promise, or warranty, expressed or implied, concerning the Premises, its fitness for Partner’s intended use or any other purpose or use, its income producing history, potential or capabilities, its value, or any other matter not expressly set forth in this Agreement.
iii) City will provide Partner with access information for any City -owned alarm systems on the Premises. Partner agrees that t here is no security guard or any
other security services or measures on the Property or at the Premises, and City makes no warranty, express or implied, regarding the security of the Premises or Property or the need for or propriety of any security measures at the Premises or Property. City shall have no obligation whatsoever to provide guard service or any other security measures. Partner expressly assumes all responsibility for the protection and security of all donated items and personal property of Partner at the Premises.
C. Partner Responsible.
i) Partner is responsible for itself and all Partner Personnel in connection with this Agreement. Partner shall not allow volunteers or invitees to enter onto the Property or Premises without the presence of a supervisory Partner officer.
Partner shall imme diately report all incidents of injury, property damage, or other losses or incidents to City occurring on the Property during Partner’s use thereof.
ii) Partner shall reimburse City within thirty (30) days of demand for repair/restoration costs to the Property including the Premises from damages arising from or in connection with Partner’s use of the Premises hereunder.
D. No Liability for Partner Property. City and City Personnel assume no liability or responsibility for any donated items or any personal property of Partner or Partner Personnel at the Property or Premises.
E. Removal and Restauration upon Termination. Partner shall remove the donated items and any and all personal property of Partner on or prior to the termination of this Agreement and shall restore the Property and Premises to substantially the same condition, reasonable wear and tear excepted, as existed as of the Effective Date (excluding damages caused by casualty). If Partner fails to comply with the obligations under this Section, C ity may remove or cause the removal of such donated items and personal property, and may remedy any injury to the Premises subject to this Paragraph at Partner’s sole cost and expense, to be paid by Partner within thirty (30) days of demand from City.
F. Compliance with Law and City Policies . Partner shall comply with all applicable federal, state, and local laws and regulations , and all industry standards for similar activities in the Riverside County area in all activities pursuant to this Agreement.
Without limiting the foregoing, Partner shall further comply with all City policies and directives applicable to the Property provided by City to Partner in connection with this Agreement.
Section 4. Insurance. Partner shall procure and maintain for the duration of the term of this Agreement and for three (3) years thereafter and at no cost or expense to City the following insurance against claims for injuries or damages to persons or property and all other liabilities which may arise from or in connection with this Agreement . Coverage shall be at least as broad as:
A. Commercial General Liability. Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04)
or the general aggregate limit shall be twice the required occurrence limit. Umbrella liability coverage may also be applied to meet the limits specified above.
B. Worker’s Compensation. Worker’s compensation coverage as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limits of no less than $1,000,000 per accident for bodily injury or disease. (for entities with employees).
C. Personal Property. With respect to the donated items, and all items of furniture, fixtures, and all other personal property of Partner or Partner Personnel located on or in the Premises, insurance against fire, peril, or flood, extended coverage, vandalism and malicious mischief, and such other additional perils, hazards and risk as now are or may be included in standard “all risk” forms in general use in Riverside County, California, for an amount equal to not less than the full current actual replacement cost thereof. City shall be named as an additional loss payee under such policy or policies and such insurance shall contain a replacement cost endorsement with no coinsurance penalty provision.
Other Insurance Provisions:
The insurance policies are to contain, or be endorsed to contain, the following provisions:
Additional Insured Status
The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Partner including materials, parts, or equipment furnished in connection with such work or operations.
General liability coverage can be provided in the form of an endorsement to the Partner’s insurance (at least as broad as ISO Form CG 20 10 or CG 20 26.)
Primary Coverage
For any claims related to this Agreement, Partner’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Partner’s insurance and shall not contribute with it.
Umbrella or Excess Policy
The Partner may use Umbrella or Excess Policies to provide the liability limits as required in this agreement. This form of insurance will be acceptable provided that all of the Primary and Umbrella or Excess Policies shall provide all of the insurance coverages herein required, including, but not limited to, primary and non-contributory, additional insured, Self-Insured Retentions (SIRs), indemnity, and defense requirements. The Umbrella or Excess policies shall be provided on a true “following form” or broader coverage basis, with coverage at least as broad as provided on the underlying Commercial General Liability insurance. No insurance policies maintained by the Additional Insureds, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Partner’s primary and excess liability policies are exhausted.
Notice of Cancellation
Partner shall provide immediate written notice if (1) any of the required insurance policies is terminated; (2) the limits of any of the required policies are reduced; (3) or the deductible or self-insured
retention is increased. In the event of any cancellation or reduction in coverage or limits of any insurance, Partner shall forthwith obtain and submit proof of substitute insurance.
Waiver of Subrogation
Partner hereby grants to City a waiver of any right to subrogation which any insurer of said Partner may acquire against the City by virtue of the payment of any loss under such insurance. Partner agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. However, Partner must obtain a workers’ compensation endorsement waiving subrogation against the City.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A: VII, unless otherwise acceptable to the City.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. At the option of the City, either: the Partner shall obtain coverage to reduce or eliminate such self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Partner shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Verification of Coverage
Partner shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to Partner before any activities under this Agreement begin. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
This Section shall survive termination of the Agreement.
Section 5. Indemnification . Partner shall indemnify, defend (with counsel selected by City), and hold harmless City and City Personnel against any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, including for bodily injury or property damage, at law or in equity arising out of or relating to any of ( i) use of the Premises by Partner and Partner Personnel; and/or (ii) the acts or omissions of Partner and Partner Personnel pursuant to this Agreement . Notwithstanding the forgoing sentences, Partner shall have no obligation to indemnify, defend, and hold harmless City and City Personnel for any claim, demand, cause of action, damages, costs, expenses, losses and liabilities arising from or relating to (i) a pre-existing environmental condition concerning hazardous substances on or under the Property; or (ii) any grossly negligent, reckless, or willful act or omission of City and City Personnel while on or about the Property. The policy limits of any insurance of Partner , or other parties are not a limitation upon the obligation of Partner including without limitation the amount of indemnification to be provided by Partner. This Section shall survive termination of the Agreement.
Section 6. General Provisions
A. Authority. Each Party represents and warrants to the other that said Party has full right and authority to enter into this Agreement, and that said Party’s entry into this Agreement does not require permission or consent of any third party, and does not violate any other agreements to which said Party is bound.
B. Attorney’s Fees. In the event either Party brings an action at law or in equity, including any action for declaratory relief, to enforce the provisions of this Agreement against the other Party, the prevailing party shall be entitled to recover from the other party reasonable attorneys’ fees, costs and expenses incurred in connection with the prosecution or defense of such action which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which the prevailing party may be entitled under law.
C. Entire Agreement, Incorporation of Recitals and Exhibits. This Agreement sets forth the entire agreement of the Parties with respect to Partner’s use of the Premises hereunder and supersedes all prior discussions, negotiations, understandings, or agreements relating thereto. The Recitals and Exhibits hereto are incorporated into this Agreement by reference.
D. Amendments. This Agreement may only be amended in a writing signed by both Parties.
E. Severability. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and shall not be affected, impaired or invalidated thereby.
F. Waiver. No waiver of any breach of any term or condition contained in this Agreement shall be deemed a waiver of any preceding or succeeding breach of such term or condition, or of any other term or condition contained in this Agreement. No extension of the time for performance of any obligation or act, no waiver of any term or condition of this Agreement, nor any modification of this Agreement shall be enforceable against either of the Parties hereto, unless made in writing and executed by both Parties.
G. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement.
H. Assignment, Transfer. Partner may not assign or otherwise transfer this Agreement, in whole or in part. without the written consent of City, which may be granted or withheld in City’s sole discretion. Any assignment or transfer in violation of this Section shall be null and void.
I. Binding on Successors. This Agreement shall apply to and be binding upon the heirs, successors, executors, administrators, and assigns of each of the Parties hereto.
J. Survival. All obligations arising prior to the expiration or termination of this Agreement and all provisions of this Agreement allocating liability between the Parties shall survive the expiration or termination of this Agreement.
K. Administration of Agreement. The City Manager or designee shall have the authority to
execute the documents and approvals necessary to effectuate the purpose of this Agreement, and may administratively approve and execute amendments which do not result in material changes to this Agreement, determined in the City Manager’s or designee’s sole discretion. The City Manager or designee may refer any matter subject to their approval pursuant to this Paragraph to the City Council.
L. Litigation Matters . The Superior Court of the State of California for the County of Riverside shall have the exclusive jurisdiction of any litigation between the Parties arising out of this Agreement. This Agreement shall be governed by, and construed under, the internal la ws of the State of California without regard to conflicts of law principles. Service of process on the City shall be made in the manner required by law for service on a public entity.
M. Rights and Remedies Cumulative. The rights and remedies of the Parties are cumulative, and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party.
N. No Partnership or Joint Venture. Nothing in this Agreement shall be construed to render City in any way or for any purpose a partner, joint venturer, or associate in any relationship with Partner, nor shall this Agreement authorize either Party to act as an agent for the other.
O. Non-Liability of Officers, Officials, and Agents . No officer, official, employee, agent, or representative of City shall be personally liable to Partner, or any successor or assign of same, in the event of any default or breach by City, or for any amount which may become due to Partner, or any successor or assign of same, or for breach of any obligation of the terms of this Agreement.
P. Covenant Against Discrimination. Partner covenants for itself, and its successors and assigns, and all persons claiming under or through it, that there shall be no discrimination against any person on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the performance of this Agreement.
Q. No Third Party Beneficiaries. There are no third party beneficiaries to this Agreement.
R. Notices. All notices required to be delivered under this Agreement or under applicable law shall be personally delivered by United States mail, prepaid, certified, return receipt requested, or by reputable document delivery service that provides a receipt showing date and time of delivery. Notices personally delivered or delivered by a document delivery service shall be effective upon receipt. Notices delivered by mail shall be effective at 5:00 p.m. on the third business day following dispatch. Notices shall be delivered to the following addresses, which may be changed from time to time upon written notice to the other Party:
To City: City of Menifee
Attn: Rebekah Kramer
29844 Haun Road
Menifee, CA 92586
[email protected]
With a copy to:
Rutan & Tucker, LLP
Attn: Jeffrey T. Melching
18575 Jamboree Rd 9th Floor
Irvine, CA 92612
[email protected]
To Partner:
Santa’s Workshop
Attn: Debbi Manion
Menifee, CA 92586
[email protected]
With a copy to:
Santa’s Workshop
Attn: Leonard Grill
Menifee, CA 92586
S. Time of Essence. Time is of the essence in the performance of this Agreement and every provision hereof.
T. No Recording. Neither Party will record this Agreement or any memorandum thereof.
U. Construction. Headings at the beginning of each section and sub- section of this Agreement are solely for the convenience of and are not a part of this Agreement.
Whenever required by the context of this Agreement , the singular shall include the plural and the masculine shall include the feminine and vice versa. This Agreement shall not be construed as if it had been prepared by one or the other of the Parties, but rather as if both Parties prepared this Agreement. If the date on which a Party is required to take any action pursuant to the terms of this Agreement is not a business day of City , the action shall be taken on the next business day of City.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
CITY OF MENIFEE
Armando G. Villa, City Manager
Attest:
Stephanie Roseen, City Clerk
Approved as to Form:
Jeffrey T. Melching, City Attorney
PARTNER
Debbi Manion, President
Leonard Grill, Vice President
[Note: 2 officer’s signatures required if Partner
is a corporation, unless provided with a
certificate of secretary in-lieu]
EXHIBIT A
PREMISES