LICENSE AGREEMENT
This License Agreement (“Agreement”) by and between the City of Napa, a California charter city (“Licensor”), and First & Main, LP, a California limited partnership (“First & Main”); JAM Cellars Investments LLC, a California limited liability company (“JAM Cellars Investments”) and Main Street Exchange, LLC, a California limited liability company (“Main Street”) is effective on the Effective Date identified on the signature page. First & Main, JAM Cellar s Investments and Main Street are hereinafter referred to individually as a “Licensee” collectively as the “Licensees.”
RECITALS
A. Licensor is the owner of that certain real prope rty located in Napa, California identified as Assessor’s Parcel Number 003-172-001, hereinafter referred to as the “Property.”
B. First and Main leases that certain real property located at 1000 Main Street located in Napa, California identified as Assessor’s Parcel Number 003-172-002 pursuant to a lease with CalKan, Inc., a Kansas Corporation.
C. JAM Cellars Investments, LLC owns that certain real property located at 1030 Main Street in Napa, California and identified as Assessor’s Parcel Number 003-172-003.
D. Main Street Exchange, LLC owns that certain real property located at 1040 Main Street in Napa, California and identified as Assessor’s Parcel Number 003-172-007.
E. Licensees desire to have access to and make use of the portion of said Property designated as a solid waste, recyclable materials and compostables enclosure facility for the disposal of Licensees’ solid waste, recyclable materials and compostables.
F. Licensees’ use of the Premises (defined below) for disposal of Licensee’s solid waste, recyclable materials and compostables benefits th e public because it will facilitate the effective management of solid waste and minimize littering.
G. Licensor is willing to grant a revocable license to Licensees under the following terms and conditions to allow Licensee s a temporary use of a portion of the Property for the disposal of Licensees’ solid waste, recyclable materials and compostables.
H. This Agreement serves as the permit contemplated by Napa Municipal Code Section
12.36.070.
NOW, THEREFORE, the Licensor and the Licensees, for the mutual consideration described herein agree as follows:
1. Grant of License. Licensor grants to Licensees, their tenants and authorized representatives, a revocable non-exclusive license for access to and use of the portion of the Property designated as a solid waste, recyclable materials and compostables enclosure facility, shown on “Exhibit A” (the “Premises” ), for the purpose of disposal of Licensee s’ solid waste, recyclable materials and compostables generated from the properties identified in Recitals B- D above, including the obligation to maintain the interior and exterior of said facility, for the non-exclusive use and benefit of the businesses operated by Licensees and their tenants.
2. Term of License.
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a. This Agreement shall commence on July 1, 2022 and shall continue as a temporary and revocable use through June 30, 2027 (“Initial Term”) , unless earlier terminated in accordance with Section 9.
b. Licensees shall have the option to extend the Initial Term of this Agreement for one additional successive period of five (5) years (the "Extended Term") provided Licensees have abided by the terms and conditions of this Agreement and are not in default hereunder. This Agreement will automatically renew unless either party provides notice of termination to the other party 120 days prior to expiration of the then current term. The terms of this Agreement shall govern any Extended Term. Licensee s shall have no right to extend the term beyond the Extended Term. The Initial Term and Extended Term shall hereinafter be collectively referred to as the “Term.”
3. Compensation. Commencing on July 1, 2023, and on each July 1st thereafter during the Term, each Licensee shall pay the Licensor an annual administrative fee of $ 706 for the Licensee’s use of the Premises. The administrative fee will be adjusted annually b y the change in the Consumer Price Index, All Urban Consumers, San Francisco -Oakland-Hayward, CA, for the proceeding July through June period, with the first adjustment being applied to the payment amount due on July 1, 2024.
4. Condition of Licensees’ Use.
a. Licensees use of the Premises shall not hinder, impair, or otherwise preclude Licensor’s use of the Property or the Premises. Licensor’s use of the Premises, however, does not include use of the solid waste, recycling and compostable containers that are paid for, utilized, and stored by Licensees within the Premises, and Licensor’s use of the Premises will not unreasonably impair Licensees’ ability to use the Premises as described herein.
b. Licensees’ use of the Premises shall be a t Licensee s’ sole cost and expense, including the cost of increased or additional solid waste, recycling and compostable collection service necessitated by the volume of Licensee s’ solid waste, recyclable materials and compostables deposited at the Premises.
c. Solid waste, recyclable materials and compostables must always be transported to the Premises in covered watertight containers, or equivalent, to ensure that solid waste, recyclable materials, compostables and related debris is not loose, blown, leaking, or generally contributing to or causing unsightly or unsanitary conditions in or about the Premises or the Property.
d. No alterations, additions, or changes to the Premises may be made by Licensee s without the prior written consent of Licensor.
e. Licensees understand and acknowledge that all improvements installed or placed in or about the Premises are owned by Licensor and that Licensees have no right or title to the Premises or its improvements other than the right of use conveyed by this Agreement. The Premises is designed to, and shall at a minimum, accommodate one 3-yard solid waste bin, one 4-yard recycling bin, three 65-gallon compost carts, and one cooking oil/grease tank. The Premises cannot be used for general storage. The Licensees shall inform the Licensor of any changes to the quantity or mixture of solid waste, recycling or composting bins stored at the Premises.
f. Licensees, at their sole cost and expense, shall maintain the interior and exterior of the Premises in a neat and sanitary order and condition. Once a month, Licensees shall pressure wash the interior of the Premises (enclosure) and any area of the Property surrounding the Premises that may be soiled from the use of the Premises or the transport of solid waste , recyclable materials, compostables and debris to and from the Premises.
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Licensees shall p ressure wash the interior of the Premises and surrounding area of the Property more often, if necessary, to maintain a clean and sanitary environment. Licensees’ pressure washing operations must comply with Napa Municipal Code Chapter 8.36 Storm Water Quality Control Ordinance.
g. Within thirty (30) days from the Effective Date, Licensee s shall submit to the Utilities Director for review and approval, a Trash Enclosure Maintenance Agreement by and between First & Main, JAM Cellars Investments and Main Street which outlines the respective obligations of the parties for compliance with the obligations of Licensees set forth herein and which apportions the cost of such obligations amongst First & Main, JAM Cellars Investments and Main Street. The City shall be a third-party beneficiary to the Trash Enclosure Maintenance Agreement, with the right but not the obligation, to enforce the terms thereof.
h. If Licensees fail to maintain the Premises in a neat and sanitary order and condition, the Licensor reserves the right to hire a third -party management company to clean, maintain and manage the Premises at Licensees’ sole cost and expense. In such case, Licensees shall pay Licensor for such costs within thirty (30) days of License es’ receipt of an invoice from Licensor.
i. Licensees shall be responsible for the repair of any and all damage to the Premises whether such damage is to the interior or exterior of the Premises, including damage caused by acts of nature or third parties. The Licensees are not responsible for repair of any damage caused by the Licensor, its employees or contractors. At Licensor’s option, if Licensees fail to make any needed repairs, Licensor may perform and make such repairs and replacements and charge Licensees for the same. In such case, Licensees shall pay Licensor for such costs within thirty (30) days of Licensees’ receipt of an invoice from Licensor. Licensees waive and release their respective right to make repairs at Licensor’s expense under California Civil Code Sections 1941 through 1942 or other similar law, ordinance, or regulation now or hereinafter in effect.
j. Notwithstanding the fact that Licensees’ use of the Premises is non-exclusive, Licensees’ use of their own trash and recycle containers shall be exclusive during the term of this Agreement.
5. Liability and Indemnity.
a. Licensees have inspected the Premises and agree to use and occupy it in its present state and condition. Licensee s acknowledge that Licensor has made no representations or warranties either express or implied as to the condition of the Premises or its suitability for Licensees’ desired use. As a material part of the consideration for this Agreement, Licensees assume all risk of damage to the Premises or injury to persons in, upon or about the Premises from Licensees’ use of the Premises or causes attributable to Licensees’ use of the Premises, except that which is caused by an action or omission of Licensor, its officers, employees, invitees, contractors and agents, or the failure of Licensor to observe any of the terms and conditions of this Agreement, which failure has persisted for an unreasonable period of time after written notice to Licensor of such failure, and Licensees waive all claims in respect thereof against Licensor.
b. To the full extent permitted by law and with counsel reasonably acceptable to Licensor, each Licensee shall indemnify, defend, release and save Licensor, its elected and appointed officials, officers, agents and employees, harmless from and against any and all claims, suits, liabilities, actions, damages, penalties, fines or causes of actions, including claims for witness and attorney’s fees (collectively, “Liability”), asserted by any person, including Licensee, its tenants, employees, and agents, for personal injury, death or damage to property including the loss of use, economic losses and resulting damage of any kind from any cause whatsoever in whole or in part arising out of this Agreement, Licensee’s use of the Premises, any action ATTACHMENT 1
or omission done, suffered or permitted by Licensee, its tenants, employees, and agents or Licensee’s failure to comply with this Agreement, all applicable laws or permit requirements.
Licensee will not be obligated to indemnify Licensor for the proportionate share of the Liability caused by Licensor’s active negligence, sole negligence, or willful misconduct. This provision of this indemnification shall survive the expiration or termination of this Agreement for a period of one year . Licensee’s indemnification obligations under this Agreement are not limited by any limitations of any insurance held by Licensee, including, but not limited to, workers’ compensation insurance
6. Insurance. Without limiting each Licensee’s indemnification obligations provided herein, each Licensee shall take out and maintain, throughout the term 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, its tenants, employees, and agents:
a. Comprehensive commercial general liability insurance at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001), with minimum limits of Two Million and 00/100 Dollars ($2,000,000.00) per occurrence and Four Million and 00/100 Dollars ($4,000,000.00) in the aggregate. Said policy shall contain, or be endorsed with, the following provisions:
i. The Licensor, its elected and appointed officials, officers, employees and agents, are covered as additional insureds for liability arising out of the operations performed by, at the direction of, or on behalf of Licensee. The coverage shall contain no special limitations on the scope of protection afforded to the Licensor, its elected and appointed officials, officers, agents and employees.
ii. For claims related to Licensee’s use of the Premises, the Licensee’s insurance is primary coverage to the Licensor, and any insurance or self -insurance programs maintained by the Licensor is excess to Licensee’s insurance and will not be called upon to contribute with it.
iii. Any failure to comply with reporting or other provisions of the parties, including breach of warranties, shall not affect coverage provided to Licensor, its officers, employees and agents.
b. Pollution liability insurance with minimum limits of $2,000,000 per occurrence and $2,000,000 aggregate per policy period of one year.
c. Workers’ Compensation insurance meeting statutory limits of Labor Code which policy shall contain or be endorsed to contain a waiver of subrogation against Licensor, its officers, agents, and employees. The requirements of this paragraph shall extend to any tenants of L icensee and may be satisfied by a policy of Licensee covering Licensee’s tenants or by a policy of Licensee’s tenant meeting the requirements described herein. If Licensee has no employees, or tenants with employees, Licensee may sign and file the following certification in lieu of insurance:
“I am aware of the provisions of California Labor Code Section 3700 which requires every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with the provisions of that code before commencing with and during the performance of the work of this contract.”
d. Each Licensee shall furnish Licensor with certificates and endorsements effecting the required coverage prior to City’s execution of this Agreement. Each policy provided hereunder shall be endorsed to provide at least thirty (30) days written notice to Licensor prior to ATTACHMENT 1
cancellation, material reduction or amendment of the policy regarding the Premises and at least ten (10) days written notice of any non-renewal of policy. The endorsements shall be on forms provided by Licensor or as approved by Licensor’s Risk Manager. Any deductible or self-insured retention over $50,000.00 shall be disclosed to and approved by Licensor. If Licensee does not keep all required insurance policies in full force and effect, Licensor may after fifteen (15) days’ prior written notice to Licensee, in addition to other remedies under this Agreement, take out the necessary insurance, and Licensee agrees to pay the cost of said insurance. The policies shall name Licensor as an additional insured as its interests may appear and shall provide for a waiver of subrogation against Licensor. If Licensee’s insurance does not provide for a waiver of subrogation against Licensor, Licensee’s insurance will have no obligation to include a waiver of subrogation against Licensor in Licensee’s insuran ce policy.
7. Uses prohibited. The Premises shall not be used or permitted by Licensees to be used in whole or in part during the term of this Agreement for any purpose or use in violation of the laws or ordinances applicable thereto. Licensee s shall at all times during the term of this Agreement do all things necessary to maintain the Premises in a safe, clean and sanitary manner and in compliance with any and all federal, state, or municipal regulations or ordinances now enacted concerning the Premises or the conduct of Licensees in and on the Premises. Licensees shall not use, or permit the Premises or any part thereof to be used by Licensees, their respective tenants or authorized representatives, for any purpose other than that which is permitted pursuant to this Agreement; and Licensees shall not make, or permit any use to be made, of the Premises, nor acts done, which will cause a cancellation of any insurance policy covering the Premises; or any part thereof, nor shall Licensees keep or use, in or about the Premises, any article which may be prohibited by the standard form of fire insurance policies. Licensee s shall, at Licensees’ sole cost and expense, comply with any and all requirements, pertaining to the Premises, or any insurance organization or company, necessary for the maintenance of reasonable public liability insurance covering the Premises.
8. Assignment. This Agreement is for the sole purpose as stated herein and is not assignable without the prior written consent of Licensor, and any attempt to assign or otherwise transfer this Agreement contrary to the provisions of this paragraph shall be void.
9. Termination. This Agreement may be terminated for cause by either party. If either party (“demanding party”) has a good faith belief that the other party (“defaulting party”) is not complying with the terms of this Agreement, the demanding party shall give written notice of the default (with reasonable specificity) to the defaulting party and demand the default to be cured within ten working days of the notice. If: (a) the defaulting party fails to cure the default within ten working days of the notice, or (b) if more than ten working days are reasonably required to cure the default and the defaulting party fails to give adequate written assurance of due performance within ten working days of the notice, then (c) the demanding party may terminate this Agreement upon written notice to the defaulting party.
10. No liens. Licensees shall keep the Premises free from any and all liens arising out of Licensees’ use of the Premises, materials furnished, or obligations incurred by Licensees.
11. Taxes. Licensees recognize that this Agreement may create a possessory interest subject to property taxation and that Licensees may be subject to the payment of property taxes levied on such interest. Licensees shall pay, before delinquency, all taxes, assessments, fees and other charges ("taxes") that are levied or assessed during the term against Licensees' interest in the real property or improvements installed or located in or upon the Premises. The foregoing notwithstanding, Licensee s shall have the right, at no cost or other detriment to Licensor, to contest with the taxing authorities the imposition or amount of any such taxes.
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12. Relocation. Licensees acknowledge and understand that the Premises are owned by the Licensor and licensed to Licensees. Upon termination of this Agreement, Licensees agree to voluntarily vacate the Premises and to make no claim for relocation costs, benefits, or assistance of any nature or for loss of good will or for any other claim whatsoever, and to defend, settle, indemnify, and save harmless L icensor, its officers, agents, and employees from all such claims and/or compensation for relocation assistance and benefits and/or loss of goodwill and/or any other claim, including costs of defense and attorney's fees relating to the Premises by any person including Licensees.
13. Attorney Fees. In the event any legal action is commenced to enforce or interpret this Agreement, the prevailing party is entitled to reasonable attorney’s fees, costs, and expenses incurred, whether or not such action proceeds to judgment.
14. 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.
15. Modifications. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by all parties.
16. Joint and Several Liability. First & Main, JAM Cellars Investments and Main Street are jointly and severally liable for the obligations of Licensees identified in this Agreement.
17. 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:
Licensor: City of Napa
Attn: Utilities Director
P. O. Box 660
Napa, CA 94559
Licensees: First & Main, LP
Attn: Brian Wills, Chief Operating Officer
c/o The Wiseman Company
1261 Travis Blvd., Suite 330
Fairfield, CA 94533
JAM Cellars Investments, LLC
Attn: John A. Truchard, Managing Member
P.O. Box 120
Napa, CA 94559
Main Street Exchange, LLC
Attn: James F. Keller, Managing Member
P. O. Box 546
Napa CA 94559-0546
18. 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 will be construed as not containing that term, and the remainder of this Agreement will remain in full force ATTACHMENT 1
and effect; provided, however, this section will not be applied to the extent that it would result in a frustration of the parties’ intent under this Agreement.
19. Governing Law, Jurisdiction, and Venue . The interpreta tion, validity, and enforcement of this Agreement will be governed 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 will be filed and heard in a court of competent jurisdiction in the County of Napa.
20. Waivers. No waiver of a breach, default, or duty under this Agreement will be effective unless it is in writing and signed by the party waiving the breach, default, or duty. Waiver of a breach, default, or duty under this Agreement will not constitute a continuing waiver or a waiver of any subsequent breach, default, or duty under this Agreement.
21. Interpretation. Each party to this Agreement has had an opportunity to review the Agreement, and to consult with its respective legal counsel regarding the meaning of the Agreement. Accordingly, Civil Code Section 1654 will not apply to interpret any uncertainty in the meaning of the Agreement.
22. 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.
23. Signatures. The individuals executing this Agreement represent and warrant that 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 Licensor and the Licensees.
LICENSEES:
First & Main, a California Limited Partnership
By:
The Wiseman Company, LLC, its General Partner
By: ___________________________________
Brian Wills, Chief Operating Officer
JAM CELLARS INVESTMENTS, LLC
By: __________________________________
John A. Truchard, Managing Member
Main Street Exchange, LLC
By:
James F. Keller, Managing Member
*Corporation, partnership, limited
liability corporation, sole proprietorship,
etc.
Unless corporate resolution delegates
an individual to sign contracts, an
agreement with a corporation shall be
signed by the President or Vice
President and the Secretary or
Treasurer of the corporation. A general
partner shall sign on behalf of a general
partnership. The managing member, if
authorized, may sign on behalf of a
limited liability corporation.
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LICENSOR:
City of Napa, a California charter city
By:
Phil Brun, Director of Utilities
ATTEST: APPROVED AS TO FORM:
By: By:
Tiffany Carranza, City Clerk Michael Barrett, City Attorney
COUNTERSIGNED:
By:
Joy Riesenberg, City Auditor
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Exhibit “A”
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