AMENDMENT NO. 1 TO AGREEMENT NO. 2021-165
LICENSE AGREEMENT WITH STR ENTERTAINMENT. LLC
City Budget Code: 1cj215 - 3 rO
This Amendment No. 1 (" Amendment") to City Agreement No. 2021-165, entitled License Agreement Agreement"), by and between the City of Napa, a California charter city ("City"), and STR Entertainment, LLC, a California limited liability company (" Licensee"), is effective on the Effective Date identified on the signature page. Capitalized terms not otherwise defined in this Amendment shall have the meanings ascribed to them in the Agreement.
RECITALS
A. City and Licensee entered into the Agreement, effective June 23, 2021, pursuant to which City licenses a portion of the Oxbow Commons ( referred to in the Agreement as the Premises) to Licensee for the purposes of erecting and maintaining a stage and associated production equipment used to hold a music concert series in each of the 2022 Season and 2023 Season.
B. In order to reduce noise impacts to nearby residents, City requests and Licensee agrees to ( A) modify the location and orientation of the Stage ( originally set forth in Exhibit A to the Agreement) in the manner set forth in Exhibit " A" attached hereto and incorporated herein by reference, ( B) reduce the total number of Events held during the 2022 and 2023 Seasons, and ( C) reduce the term end date of both the 2022 and 2023 Seasons to October 5th of each respective year.
C. In consideration for the Agreement modifications requested by City, Licensee requests and City agrees to: ( A) allow specified production equipment to be set up as indicated on Event days and to remain in place during non - Event days during each of the 2022 and 2023 Seasons ( as specified in detail on diagram 1 of Exhibit A attached here to and incorporated herein by reference; ( B) reduce certain license fees as specified in Section 2.6 below; and ( C) clarify the Event booking process and Special Event Permit process as set forth in Section 2.4 below.
NOW. THEREFORE, the City and the Licensee, for the mutual consideration described herein, agree as follows:
1. INCORPORATION BY REFERENCE. Unless otherwise specified, all subsequent references to the Agreement are deemed to mean the original Agreement as modified by any amendments preceding this Amendment, if any. This Amendment incorporates the Agreement by reference, except and only to the extent that any terms or conditions of the Agreement are specifically modified by this Amendment. All terms and conditions in the Agreement that are not specifically modified by this Amendment remain in full force and effect.
2. AMENDMENT. The Agreement is hereby amended as follows:
2.1. The definition of " 2022 Season" in the seventh Recital of the Agreement is hereby amended by deleting " October 31, 2022" and replacing it with " October 5, 2022."
2.2. The definition of " 2023 Season" in the seventh Recital of the Agreement is hereby amended by deleting " October 31, 2023" and replacing it with " October 5, 2023."
2.3. Exhibit " A" of the Agreement is hereby amended by deleting the existing graphics in their entirety and replacing them with the detailed modified graphics attached hereto as Exhibit " A" and incorporated herein by reference.
2.4. Section 1 of the Agreement is hereby amended by deleting the existing text in its entirety and Amendment to Agreement
License Agreement with STR Entertainment, LLC
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replacing it with the following:
1. Grant of License. Subject to the terms of this Agreement, City grants to Licensee a non-exclusive license to use the Premises for the sole purpose of erecting, maintaining, and leaving in place during the 2022 Season and 2023 Season a stage and associated production equipment (" Stage") to be used by Licensee for holding music concerts and other events, subject to the following use restrictions:
a. The Stage shall be located in the area depicted on diagram 1 of Exhibit " A" attached hereto and incorporated herein by reference on non - Event days and on diagram 2 of Exhibit " A" on Event days; provided however, that the final location of the production equipment on non - Event days and Event days may be modified by the City's Parks and Recreation Director in conjunction with issuance of a Special Event Permit to address health and safety concerns.
b. During the 2022 Season, Licensee may hold on the Premises up to thirteen 13) music concerts or other events ( each an " Event" and collectively, " 2022 Event Series"). During the 2023 Season, Licensee may hold up to twelve ( 12) Events collectively, " 2023 Event Series"). The Events in either the 2022 Event Series or 2023 Event Series may be promoted by Licensee or a third - party promotor (" Third Party") pursuant to an agreement with Licensee.
c. If requested by City, Licensee shall assist City in producing a free public concert on July 4, 2022 and July 4, 2023 ( each, a " July 4th Free Community Concert"). The July 4th Free Community Concert will be excluded from the total allowed Events during the 2022 Event Series or 2023 Event Series. Licensee's responsibilities for the July 4th Free Concert shall consist of only the following, all at Licensee's sole cost and expense: ( 1) booking and securing the talent for the July 4'h Free Community Concert at Licensee's discretion ( but with City approval), ( 2) providing the stage, audio and lighting equipment sufficient for the July 4th Free Community Concert, ( 3) providing Licensee personnel ( or contractors) to run the stage, audio and lighting equipment during the July 4'h Free Community Concert, and 4) providing beverage services, and obtaining any necessary permits for such services, during the July 4"' Free Community Concert. The Licensee will collect 100% of any associated beverage revenues during the July 4'h Free Community Concert. City will be responsible for all other aspects of the July 4th Free Community Concert, including but not limited to providing adequate police, security and medical services. The City will obtain the Special Event Permit for the July 4'h Free Community Concert. The parties understand and agree that the Premises will not be secured during the July 4'h Free Community Concert as it will be open to the public.
d. Prior to holding an Event on the Premises, Licensee shall apply for and obtain, a special event permit for the Event from the City in accordance with Napa Municipal Code (" NMC") Chapter 12.48 (" Special Event Permit"). Licensee may request and City may grant a Special Event Permit to cover multiple Events. Issuance of each Special Event Permit shall not be unreasonably withheld or delayed by the City. 1) Use of the Premises by Licensee to hold an Event is subject to availability on a first come, first served basis, and the City's reservation procedures and policies. Subject to subsection ( 2) below, the City approves the Event dates for the 2022
Season set forth in Exhibit " B" attached hereto and
incorporated herein by reference. For any changes to the tentative dates listed in Exhibit " B" for the 2022 Season, the Amendment to Agreement
License Agreement with STR Entertainment, LLC
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Licensee may request an alternative date and the City will respond to the Licensee's request within seven ( 7) days. For the 2023 season, the City will provide Licensee with a list of any dates that are not available for the 2023 Season by November 15, 2022. A date shall only be deemed unavailable by the City if it has been held by the City or a third party for an event to be held on the Premises or if there is another significant special event happening on the same date that is incompatible, as reasonably determined by the City, with use of the Premises for an Event. As Licensee makes offers to talent for its Events, it will, on a rolling basis, submit proposed Event dates for the 2023 Season to City for review and
approval. Licensee will use its commercially reasonable efforts to book all Events for the 2023 Season by March 31, 2023. The City will approve or deny each proposed Event date for the 2023 Season within five ( 5) business days of the submission of each such proposed Event date. The City shall not unreasonably deny a requested date. Once approved, the dates will be reserved for the Licensee while the Licensee completes the Special Event Permit application process. Any dates submitted to City for approval after March 31, 2023 will be subject to approval by the City, at City's sole and absolute discretion, and the City will provide a response within seven 7) business days.
2) Licensee will not book more than 2 Events on weekdays Monday - Thursday) for the 2022 Season and the 2023 Season with the remainder of the Events to be held on Fridays, Saturdays and Sundays; provided, however, in the event of a three-day holiday weekend, the Monday of the holiday
weekend shall not be deemed to be a weekday.
3) The Licensee is not guaranteed use of the Premises on a particular date until Licensee secures a Special Event
Permit for that date. The Licensee understands that the issuance of a Special Event Permit is required for all Events held on the Premises. The City will not unreasonably withhold issuance of the Special Event Permit for an Event provided that Licensee's Special Event Permit application is in material compliance with the requirements of NMC Chapters 12.40 and
12.48. 4) The Licensee will provide to City a detailed operations plan Operations Plan") for each Event Series, covering the
operation for all proposed Events, prior to or concurrently with submittal of a Special Event Permit application for the first Event in the Event Series as well as any other information required for issuance of the Special Event Permit. Licensee shall materially comply with the Operations Plan and Special Event Permit for each Event within the Event Series. The City will issue the Special Event Permit within a reasonable time frame prior to the Event date.
e. Any Special Event Permit issued to Licensee for an Event on the Premises shall include, but not be limited to, the following terms:
Amendment to Agreement
License Agreement with STR Entertainment, LLC
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1) Licensee shall provide a security deposit in the amount of 1,000 (" Security Deposit"). The Security Deposit may be used by City to repair damages caused by Licensee at any time during the Term of this Agreement and to pay for additional City staff time required to correct any damages caused by Licensee if the Licensee does not affect said repair within 5 days of receiving notice to do so from the City. Should the City use any or all of the Security Deposit, Licensee will
immediately replenish the used portion. The unused and/or replenished Security Deposit will carry over to the next Event in the Series. The unused portion of the Security Deposit will be returned to Licensee upon the expiration of the Term. 2) Licensee shall provide private event security for each Event held on the Premises, excluding the July 4'h Free Community Event.
3) Licensee shall obtain all required permits for each Event, including hiring a caterer with an Alcohol Beverage Control permit, the (" Event Caterer") and County Health permit. 4) Licensee shall not be required to pay an application fee for a Special Event Permit but shall be responsible for all other fees and costs, including the cost for any additional City staff time required for the Events in accordance with the City's Special Event Policy. These additional costs, if any, will be presented to the Licensee prior to or upon approval of a Special Event Permit.
5) The Special Event Permit shall also serve as the amplified sound permit required by NMC Chapter 12.40.
6) The City will install three ( 3) sound monitoring devices at the following locations: one device within the Premises under or next to the rail overpass for purposes of measuring compliance with the 86 dBA noise standard in NMC Section 12.40.030(D); one device at Oxbow Preserve ( or mutually agreed upon
location east of the Stage) for purposes of measuring
compliance with the 65 dBA noise standard in NMC Section
12.40.030(D); and one device at 1200 West Street ( west of the Stage), which is close to the nearest residential property, for purposes of measuring compliance with the 65 dBA noise standard in NMC Section 12.40.030(D). The parties agree that the City will utilize the average sound levels collected from each individual device during the duration of each Event to determine Licensee's material compliance with the noise standards in NMC Chapter 12.40 for that Event.
f. Licensee shall have exclusive use of the Stage and shall be solely responsible for operation and maintenance of the Stage, including production of the Event Series.
9. When the Stage is not in use by Licensee, it shall be secured by a chain - link fence six to eight ( 6-8) feet in height. The fence shall be wrapped with fence scrim.
2.5. Section 2 of the Agreement ( Term of License) is hereby amended by deleting the existing text in its entirety and replacing it with the following:
Amendment to Agreement
License Agreement with STR Entertainment, LLC
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2. Term of License. The term of this Agreement shall commence upon June 1, 2022 Commencement Date") and continue through October 5, 2023 (" Term") unless terminated earlier as provided in Sections 12 and 13 of this Agreement."
2.6. Section 3 of the Agreement ( License Fee) is hereby amended by deleting the existing text in its entirety and replacing it with the following:
3. License Fee. As consideration for the rights granted to Licensee herein, Licensee shall pay to City during the Term the following fees for all Events held on the Premises (" License Fees"):
a. Licensee shall pay to City a monthly flat fee of Seventeen Hundred Dollars 1,700) per month for June, July, August, and September of 2022 and Two Thousand Dollars ($ 2,000) per month for June, July, August, and September of 2023; and
b. For each paid ticketed Event on the Premises, Licensee shall pay to City a fee in the amount of $ 1.00 per ticket sold for tickets ranging in price from
1.00 to $ 60.00 and a fee in the amount of $ 1.50 per ticket sold for tickets priced at $ 60.01 and above ( each, the " Per Ticket Fee"). The Per Ticket Fee shall only be charged on the first fifty thousand ( 50,000) tickets sold.
For the avoidance of doubt, there shall be no Per Ticket Fee charged by the City for any tickets sold over fifty thousand ( 50,000) and no Per Ticket Fee charged for any tickets provided by Licensee on a complementary basis.
c. Licensee shall pay the License Fees to the City by the 15thday of each month for the prior month. For example, the License Fees for the month of June shall be paid by July 15th, and the License Fees for the month of July shall be paid by August 15`h. The monthly License Fees payment shall be accompanied by a report which contains the following information for each Event held on the Premises during the reporting period:
1) the date of the Event;
2) the name of the attraction(s) appearing;
3) the number of tickets sold;
4) the License Fees due for each Event held on the Premises the prior month; and
5) the total License Fees due for the prior month.
Upon City's request, Licensee shall provide additional information regarding the Licensee's calculation of License Fees.
2.7. Section 4(c) of the Agreement ( Conditions of License) is hereby amended by deleting the existing text in its entirety and replacing it with the following:
Licensee may not limit public access to the Premises or to any existing or future public rights of way, public trails or public amenities except as authorized pursuant to a Special Event Permit and/or the express terms of this Agreement."
2.8 Section 4(d) of the Agreement ( Conditions of License) is hereby amended by deleting the existing text in its entirety and replacing it with the following:
Licensee shall materially comply with all requirements of NMC Chapters 12.40 and 12.48 and all provisions of the Special Event Permits issued in conjunction with this Agreement." Amendment to Agreement
License Agreement with STR Entertainment, LLC
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2.9 Section 12(e) of the Agreement ( Termination) is hereby amended by deleting the existing text in its entirety and replacing it with the following:
By City at any time by providing written notice of termination to Licensee, effective upon the date stated in the notice if the Parks and Recreation Director reasonably and in good faith determines that as a result of immediately impending inclement weather, the Stage would unreasonably damage the Premises."
2.10 Section 13 of the Agreement is hereby amended by deleting the existing text in its entirety and replacing it with the following:
a. Performance Obiectives. Licensee shall comply with the following performance objectives:
1) Licensee shall comply, and shall cause all Third Parties to comply, with all terms and conditions of this Agreement and of any Special Event Permit issued by City for the Event Series;
2) Licensee shall timely pay the License Fees to City;
3) The average sound monitoring data collected by the City in accordance with Section 1.e.(6) for each Event shall demonstrate that no more than one Event per Event Series materially exceeded the noise standards set forth in NMC Section
12.40.030(D).
4) Licensee shall resolve to the reasonable satisfaction of the City's Parks and Recreation Director any issues raised by City regarding Licensee's use of the Premises, by the date and time set forth in the written notice provided by the City. 5) Licensee shall maintain the Stage and the Premises in good condition and repair; and
6) Licensee shall ensure the safety of the Stage and Premises and of the persons who attend the Events on the Premises.
b. Annual Report. Licensee shall provide an Annual Report to City staff no later than October 15, 2022 describing how Licensee has complied with the performance objectives set forth in this paragraph for the 2022 Season. City staff will review the Annual Report, together with the sound monitoring data collected by the City for each Event held during the 2022 Season in accordance with Section 1(e), and will reasonably and in good faith determine whether Licensee has materially complied ( subject to any applicable cure periods and rights) with the performance objectives in subsection ( a). City staff will present its findings to the City Council. If the City Council reasonably and in good faith determines that Licensee has not materially complied ( subject to any applicable cure periods and rights) with one or more performance objectives in subsection ( a) for the 2022 Season, the City may terminate this Agreement by providing written notice of termination to Licensee by November 15, 2022, effective upon the date stated in the notice.
2.11 Section 15 of the Agreement is hereby amended by deleting the existing text in its entirety and replacing it with the following:
15. Surrender of Premises. By October 5, 2022 following the 2022 Season and October 5, 2023 following the 2023 Season or within fourteen ( 14) days following the earlier termination of this Agreement, Licensee shall remove the Stage and the production equipment from the Premises and restore the Premises to its condition prior to the Commencement Date. Licensee shall repair any damages to the Premises or the Amendment to Agreement
License Agreement with STR Entertainment, LLC
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Oxbow Commons, including but not limited to the turf, irrigation, subsurface turf mat, park amenities, grounds, or walkways, caused by, or resulting from, Licensee's activities on the Premises by October 21, 2022 for the 2022 Season and October 20, 2023 for the 2023 Season. The perimeter fence shall remain in place to keep the public out of the turf area until the repairs have been completed or a date mutually agreed upon in writing by both parties. If Licensee fails to timely repair any damages in accordance with this Section 15, Licensee will be charged for the cost of such repairs, including any associated City staff costs.
3. ENTIRE AGREEMENT. The Agreement, as modified by this Amendment, constitutes the entire integrated understanding between the parties concerning the subject matter hereof. This Amendment supersedes all prior negotiations, agreements and understandings regarding the subject matter hereof, whether written or oral. The documents incorporated by reference into this Amendment are complementary; what is called for in one is binding as if called for in all, except and only to the extent otherwise specified. If any provision in an exhibit to this Amendment conflicts with or is inconsistent with a provision in the body of this Amendment, the provisions in the body of this Amendment will control over any such conflicting or inconsistent provisions.
4. SIGNATURES. The individuals executing this Amendment represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Amendment on behalf of the respective legal entities of Licensee and City. This Amendment shall inure to the benefit of and be binding upon the parties hereto and their respective successors and authorized assigns.
IN WITNESS WHEREOF, the Parties have executed this Amendment to be effective on the Effective Date set forth below.
CITY:
CITY OF NAPA,, a California charter city
By:
Steve Potter, City Manager
Tiffany Carranza, City Clerk
Date:
Effective Date")
COUNTERSIGNED:
D,r7kp
Joy iesnberg, City Auditor
APPROVED AS TO FORM:
Michael W. Ba City Attorney
LICENSEE:
STR Entertainment, LLC, a California limited
liability company
By:
Ken Tesler Managing ember9 9
SabrinaS. Wolfson, DeputyCityAttorney
Amendment to Agreement
License Agreement with STR Entertainment, LLC
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Exhibit " A"
Premises and Stage Location
Diagram 1 - Premises and Stage Location and Production Equipment on Non - show Days Amendment to Agreement Page 8 of 10
License Agreement with STR Entertainment, LLC
Form 2.2.1 ( 2018-01-12)
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Diagram 2 - Premises and Stage Location and Production Equipment on Show Days Amendment to Agreement
License Agreement with STR Entertainment, LLC
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Exhibit " B"
Event Dates for 2022 Season
1. Sunday, June 19, 2022
2. Saturday, June 25, 2022
3. Friday, July 8, 2022
4. Friday, July 29, 2022
5. Friday, August 12, 2022
6. Tuesday, August 23, 2022
7. Friday, August 26, 2022
8. Saturday, August 27, 2022
9. Sunday, August 28, 2022
10. Sunday, September 4, 2022
11. Saturday, September 17, 2022
12. To be determined
13. To be determined
Amendment to Agreement
License Agreement with STR Entertainment, LLC
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