LICENSE AGREEMENT
This License Agreement (this “Agreement”) made by and between the City of Napa, a California charter city (“City”), and Downtown Napa Farmers Market Corporation, a California non-profit corporation (“Licensee”), is effective on the Effective Date identified on the signature page.
RECITALS
A. The City has license agreement with Syufy Enterprises (“Property Owner”) to use and maintain 825 Pearl Street, Napa California (“Property”) as a temporary surface public parking lot in downtown Napa which is commonly referred to as Lot X and was formerly occupied and utilized by Century Theatres as a movie theater.
B. The City’s license agreement with Property Owner was entered into on February 2, 2015 (Agreement No. C2015-341) and extended on August 4, 2021 (Amendment No. 3 to Agreement No. C2015-341) (as amended, “City’s License Agreement”) until the earlier of: (a) the date that the Property Owner obtains a building permit to develop the Property for a future approved use; or (b) the date upon which either party, in its sole and absolute discretion, elects to terminate the City’s License Agreement. The City’s License Agreement requires at least ninety (90) days written notice in advance of the termination date.
C. Licensee desires to use a portion of the Property depicted on Exhibit “A” attached hereto and incorporated herein by reference (“Premises”) for the purpose of operating a farmers market two days per week.
D. The City believes that having a local farmers market is important to the quality of life for the residents of Napa because it promotes accessible and equitable access to local food and supports the community’s public health.
E. The City’s License Agreement authorizes the City to sublicense the Premises to Licensee for the purpose of operating a farmers market.
F. City agrees to sublicense the Property to the Licensee for such purposes and subject to and upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, the City and the Licensee, for the mutual consideration described herein, agree as follows:
Grant of License. City grants to Licensee and its authorized representatives a non-exclusive revocable license (“License”) to use the Premises for the sole purpose of operating the Napa Farmers Market and subject to the following use restrictions:
Use of the Premises shall be from 5:00 a.m. to 3:00 p.m. on Saturdays and Tuesdays only.
Licensee may keep a storage container in the area depicted in red on Exhibit “A” for the term of this Agreement for the purposes of storing personal property used in connection with the farmers market. Licensee shall store all personal property in the container when not used for the farmers market and at the conclusion of the use after 3:00 p.m. on Saturdays and Tuesdays.
The Licensee will provide trash, composting, and recycling receptacles and clean up all trash and debris from the Premises by 3:00 pm of each Tuesday and Saturday and place all items in the receptacles.
The Licensee will maintain valid certifications, permits, and documentation (for both the Napa Farmers Market and all vendors) required by the Napa County Agricultural Commissioner's Office and Napa County Environmental Health Division to operate a California Certified Farmers Market and its auxiliary section (other non-farmer vendors).
This Agreement shall serve as the use permit required pursuant to Napa Municipal Code Section 17.52.490.
Term of License. The term (“Term”) of this Agreement shall commence on April 1, 2022 (“Commencement Date”) and shall terminate on March 31, 2023. The Term shall renew each April 1st for an additional year unless either party provides written notice of termination to the other party within 90 days prior to the expiration of the then-current Term, or this Agreement is earlier terminated pursuant to the provisions set forth herein. Notwithstanding the foregoing, in the event that the City’s License Agreement is terminated by either the City or Property Owner, the City shall notify Licensee of the termination date in writing and as soon as is practicable upon the determination of the imminent termination of the City’s License Agreement with the Property Owner. This Agreement shall automatically terminate on the effective date of such termination.
License Fee.
Commencing on the first day of the month following the Commencement Date, and on each anniversary thereafter during the term, Licensee shall pay to City a lump sum amount of One Thousand and 0/100 Dollars ($1,000.00) per year (“License Fee”). The License Fee shall be payable to City at P.O. Box 660, Napa, California 94559-0660, Attention: Finance Department, Accounts Receivable.
The amount of the License Fee payable hereunder shall be increased annually on each anniversary of the License Commencement Date during the Term by an amount equal to the percentage increase in the Consumer Price Index (CPI) for All Urban Consumers in the San Francisco-Oakland-San Jose region for the prior 12-month period.
Conditions of License. City grants the License to Licensee subject to the following conditions:
Licensee acknowledges that the Premises are currently utilized as a public parking lot and that the primary purpose of the parking lot is to provide parking for downtown Napa.
By taking possession of the Premises, Licensee accepts the Premises in the condition existing on the License Commencement Date. City makes no warranty or representation, either expressed or implied, regarding the condition of the Premises or its suitability for Licensee’s proposed use. City shall not be liable for any latent or patent defect in the Premises.
In the event that City desires to make any repair, reconstruction, change, addition, or modification to the Premises including, but not limited to, the surface, subsurface, drainage system, or water delivery system to make any repair, reconstruction, change, addition, or modification to the public facilities and/or infrastructure, Licensee shall, if required by City, vacate the Premises or relocate its operations at the Licensee’s sole cost and expense. City agrees that it will consider other, equally feasible alternatives prior to requiring Licensee to vacate the Premises.
Insurance. Without limiting Licensee’s indemnification provided herein, Licensee shall take out and maintain, throughout the period of this Agreement, the following policies of insurance against injury and or death to persons or damage to property which may arise from or in connection with the activities hereunder of Licensee, it agents, employees or subcontractors:
a. Comprehensive or Commercial General Liability Insurance at lease as broad as Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001), in an amount of $1,000,000.00 per occurrence. If a general aggregate limit is used, either the general aggregate limit shall apply separately to this project or the general aggregate shall be twice the required occurrence limit. Said policy shall contain, or be endorsed with, the following provisions:
(1) The City and Property Owner, and their respective officers, employees and agents, are covered as insured for liability arising out of the operations performed by or on behalf of Licensee. The coverage shall contain no special limitations on the scope of protection afforded to the City and Property Owner, and their respective officers, agents and employees. (2) The inclusion of more than one insured shall not operate to impair the rights of one insured against another insured, and the coverage afforded shall apply as though separate policies had been issued to each insured, but the inclusion of more than one insured shall not operate to increase the limits of the insurer’s liability. (3) For claims related to Licensee’s use of the Premises, the Licensee’s insurance is primary coverage to the City and Property Owner, and any insurance or self-insurance programs maintained by the City or Property Owner is excess to Licensee’s insurance and will not be called upon to contribute with it. (4) If Licensee will be supplying alcoholic beverages, the general liability insurance shall include host liquor liability coverage. If Licensee is using a caterer or other vendor to supply alcohol that vendor must have liquor liability coverage. If Licensee intends to sell alcohol either the Licensee or vendor providing the alcohol for sale must have valid liquor sales license and liquor liability insurance covering the sale of alcohol. (5) Any failure to comply with reporting or other provisions of the parties, including breach of warranties, shall not affect coverage provided to City, its officers, employees and agents. b. Licensee shall furnish City with certificates and original endorsements effecting the required coverage prior to execution of this Agreement by City. The endorsements shall be on forms provided by City or as approved by City Attorney. Any deductible or self-insured retention over $100,000.00 shall be disclosed to and approved by City. If Licensee does not keep all required insurance policies in full force and effect, City may, in addition to other remedies under this Agreement, take out the necessary insurance, and Licensee agrees to pay the cost of said insurance.
Uses prohibited. Licensee shall not use, or permit to be used, the Premises in whole or in part during the term of this Agreement for any purpose or use in violation of federal, state or local laws or regulations. Licensee agrees at all times during the term of this Agreement to maintain the Premises in compliance with any and all federal, state, or local laws and regulations now enacted concerning the Premises or the conduct of Licensee in and on the Premises. Licensee shall not use, or permit said Premises, or any part thereof, to be used, for any purpose other than the purpose set forth in Section 1. Licensee shall not make, or cause to be made, any alterations to the Premises without the prior and express written consent of the City.
No liens. Licensee shall keep the Premises free from any and all liens arising out of Licensee’s use of the Premises, materials furnished, or obligations incurred by Licensee.
Indemnification. To the fullest extent permitted by law, Licensee shall indemnify, hold harmless, release and defend City and Property Owner and their respective officers, employees and agents from and against any and all actions, claims, demands, damages, disability, losses, expenses including attorney’s fees and other defense costs and liabilities of any nature that may be asserted by any person or entity including Licensee arising out of the activities of Licensee, its officers, employees, or agents on the Premises excepting only liabilities due to the sole negligence or willful misconduct of City or Property Owner. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation payable by or for Licensee under Worker’s Compensation, disability or other employee benefit acts or the terms, applicability or limitations of any insurance held or provided by Licensee and shall survive the expiration or termination of this Agreement.
Hazardous Materials.
Licensee agrees that it will not cause or permit any hazardous material (as defined herein) to be generated, brought onto, used, stored, released or disposed of on, under, about or within the Premises by Licensee, or its agents, employees, contractors, sublicensees, invitees or other third parties. In the event during the Term of this Agreement it is determined that the Premises is contaminated by hazardous materials through no action or inaction of Licensee, its employees, agents, contractors or invitees, Licensee shall have the right to terminate this Agreement upon thirty (30) days written notice to City, but shall not have the right to sue City for damages.
If either party becomes aware of any actual or threatened release of hazardous materials on, under, or about the Premises or any inquiry, investigation, proceeding or claim by any agency or person regarding the presence of hazardous materials on, under, or about the Premises, that party shall give the other party written notice of the same within five (5) days of learning of it and shall simultaneously furnish the other party copies of any claim, notices of violation, reports, or other writings received.
To the fullest extent permitted by law, Licensee shall, with counsel reasonably acceptable to City, indemnify, defend, release, and hold harmless City, its officers, agents, and employees, regarding all losses arising out of or resulting from Licensee’s use or storage of any hazardous materials on or about the Premises, the release of any hazardous material in or about the Premises or the violation of any environmental law by Licensee, its agents, contractors, or invitees including, but not limited to, losses attributable to diminution in the value of the Premises, liability for penalties, costs, fines, claims, expenses, actions, acts of remediation, obligations, changes, etc., resulting from Licensee’s use or storage of hazardous materials or any release or violation. This indemnification obligation shall survive the expiration or termination of this Agreement.
If the presence of any hazardous material brought onto the Premises by Licensee or Licensee’s employees, agents, contractors, and/or invitees results in contamination of the Premises, Licensee shall promptly take all necessary actions, at Licensee’s sole cost and expense, to return the Premises to the condition that existed prior to the introduction of such hazardous material; provided however, Licensee shall first obtain the City’s approval of the proposed remediation action. Remediation shall not limit Licensee’s indemnification obligation set forth above.
As used herein, hazardous materials shall mean any hazardous or toxic substance, material, or waste that is or becomes regulated by the federal, state or local government, including:
"Hazardous substances" and "pollutants and contaminants" as defined in CERCLA, 42 USC §§960114 and (33) and regulations issued pursuant thereto; "Extremely hazardous substances," "hazardous chemicals," and "toxic chemicals" as defined in the Emergency Planning and Community Right to Know Act, 42 USC §§1102(a), 1121(e) and 1122(c) and regulations issued pursuant thereto; "Hazardous chemicals" within the meaning of OSHA's Hazard Communication Rules, 29 CFR §1910.1200; Any such materials regulated under state or local environmental laws and regulations similar to the foregoing federal authorities listed in 1-3 above; and Any materials not covered by, or exempted from, the sources listed in subsections 1-4 above that may nevertheless pose a threat to human health or welfare or to the environment including, without limitation, petroleum, including crude oil or any faction thereof, radon, PCB’s, radioactive material, toxic pesticides and herbicide, solvents, and materials containing asbestos or formaldehyde.
Notices. Any notice or other communication under this Agreement shall be in writing and either served personally or sent by prepaid, first-class mail, addressed to the other party at the following addresses:
City: City of Napa
Parks & Recreation Department
Attn: Pete Hangen, Recreation Supervisor
P. O. Box 660
Napa, CA 94559
Licensee: Downtown Napa Farmers Market Corporation Attn: Cara Mae Wooledge P.O. Box 10822
Napa Ca, 94581
Assignment and Subletting by Licensee. Licensee shall not voluntarily or by operation of law assign, transfer, sublet or otherwise transfer or encumber all or any part of Licensee's interest in this Agreement or in the Premises (“Assignment”), without City's prior written consent, which consent shall not be unreasonably withheld. Any request for Assignment shall be accompanied by such data relating to the identity and financial condition of the proposed assignee and the material terms of the transfer as may be requested by City to make its decision. Any Assignment without the prior written consent of City is void and at the option of City shall terminate this Agreement.
Termination. This Agreement may be terminated as follows:
By either party for the other party’s failure to cure a default or breach within fifteen (15) days after receipt of written notice thereof, provided that if a non-monetary default cannot reasonably be cured within such fifteen (15) day period, this License shall not terminate if such defaulting party commences to cure the default within the fifteen (15) day period and works diligently towards curing the default after receipt of notice of such default.
By either party for any reason, upon ninety (90) days prior written notice to the other party.
General Provisions.
a. Headings. The heading titles for each paragraph of this Agreement are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. b. Severability. If any term of this Agreement (including any phrase, provision, covenant, or condition) is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect; provided, however, this paragraph shall not be applied to the extent that it would result in a frustration of the parties' intent under this Agreement. c. Governing Law, Jurisdiction, and Venue. The interpretation, validity, and enforcement of this Agreement shall be governed by and interpreted in accordance with the laws of the State of California. Any suit, claim, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County of Napa. d. Attorney’s Fees. In the event any legal action is commenced to enforce or interpret this Agreement, the prevailing party is entitled to reasonable attorneys’ fees, costs, and expenses incurred, whether or not such action or proceeding is prosecuted to judgment. e. Modifications. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties. f. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. g. Time. Time is of the essence in carrying out the duties hereunder. Each Party shall, upon request by the other party, execute, acknowledge, and deliver such documents or take such action as may be necessary or convenient to carry out the terms and conditions of this Agreement. h. Entire Agreement. This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the subject matter described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all. i. Each Party's Role In Drafting The Agreement. Each party to this Agreement has had an opportunity to review the Agreement, confer with legal counsel regarding the meaning of the Agreement, and negotiate revisions to the Agreement. Accordingly, neither party shall rely upon Civil Code section 1654 in order to interpret any uncertainty in the meaning of the Agreement. j. Signatures. The individual executing this Agreement represent they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Licensee and City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. k. Counterparts. This Agreement may be executed in counterparts, each one of which is deemed an original, but all of which together constitute a single instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective on the Effective Date set forth below.
Licensee:
Downtown Napa Farmers Market Corporation, a California non-profit corporation By:
Signature
Print Name, Title
By:
Signature
Print Name, Title
CITY:
CITY OF NAPA, a California charter city
By:
Steve Potter, City Manager
APPROVED AS TO FORM: COUNTERSIGNED:
By: By: Michael Barrett, City Attorney Joy Riesenberg, City Auditor ATTEST:
By:
Tiffany Carranza, City Clerk
Date:
(“Effective Date”)
EXHIBIT A
Description of Premises
Trailer/storage location
ATTACHMENT 2
ATTACHMENT 2