CITY OF NAPA
Staff Reports
955 School Street
Napa, CA 94559
www.cityofnapa.org
To: Honorable Mayor and Members of City Council
From: Breyana Brandt, Parks & Recreation Services Director Prepared By: Katrina Gregory, Recreation & Public Art Manager TITLE:
Oxbow Riverstage Concert Series
RECOMMENDED ACTION:
Review the Licensee’s Annual Report for the 2022 Season; authorize the City Manager to (1) issue written notice to STR Entertainment to allow use of the Oxbow Commons for the 2023 Season from June 1, 2023 through October 5, 2023; and (2) negotiate and execute Amendment No. 2 to City Agreement No. 2021-165 to require improvements for the 2023 Season including a) an increased security deposit of $40,000; b) improved aesthetics at the Premises with decorative fence screens around the stage enclosure and enhanced cleaning and litter removal after each concert; and c) reducing the non-concert days footprint to include the removal of the fence line under the bridge area; and determine that the actions authorized by this item are exempt from CEQA.
DISCUSSION:
The City of Napa entered into a one-year license agreement in 2018 with Mad Dog Presents (former name of Licensee) to permit the Licensee to erect and maintain a stage at Oxbow Commons from June 1, 2019 through October 31, 2019 for a summer concert series. Licensee was permitted to produce up to fifteen (15) paid, ticketed music concerts and required to produce a minimum of five (5) free music concerts open to the public. Mad Dog Presents in partnership with Another Planet created the “Oxbow Riverstage” brand and booked 6 concerts for the 2019 season.
At the November 5, 2019 meeting, the City Council determined that the Licensee’s Progress Report to the City documented compliance with the requirements of the License Agreement for use of the stage at Oxbow Commons for the term of June 1, 2019, through October 31, 2019 and authorized the City Manager to provide written notice to allow Mad Dog Presents LLC to exercise its option to extend the term of the License Agreement for the term of June 1, 2020 through October 31, 2020.
Due to the COVID-19 pandemic and the Napa County health orders, events such as music concerts were cancelled for the 2020 summer season. Therefore, the Licensee requested to extend the License Agreement for an additional season, from June 1, 2021 to October 31, 2021, in order to reschedule many of the concerts to the following season. In April 2020, the City Council authorized the City Manager to execute the amendment for extending the term of the original agreement.
In April 2021, due to the continued uncertainty with the COVID-19 pandemic and the health orders for File #: 356-2022, Version: 1
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larger events, it was unknown if the 2021 season for the Oxbow Riverstage would be significantly impacted. Since the Licensee made a significant investment in the equipment and music series and since the Licensee was not able to fully operationalize the agreement within the initial three years, the City Council authorized the City Manager to execute City Agreement No. 2021-165 (License Agreement) (Attachment 1) with the Licensee for use of Oxbow Commons for the 2022 Season and 2023 Season. For this agreement, the Licensee name was changed from Mad Dog Presents to STR Entertainment, both managed by Ken Tesler.
With California’s health orders changing on June 15, 2021, the Oxbow Riverstage was able to schedule and produce 14 concerts (3 concerts cancelled) between August 14, 2021 and October 23, 2021.
Based on the noise concerns received from the community during the 2021 Season, City Council authorized the City Manager to execute Amendment No. 1 to the License Agreement (Attachment 2) to reorient the stage to face west toward downtown Napa and use the eastern section of Oxbow Commons for the stage and back of house equipment. In addition, the Amendment reduced the maximum number of concerts from 15 to 13 for the 2022 Season and to 12 concerts for the 2023 Season. The Licensee was also required to provide the stage, musical performances, sound equipment and technical staff for the free July 4
th community event that was hosted by the City of
Napa Parks & Recreation Department.
For the 2022 Season, the Licensee held 11 paid concerts between June 19, 2022 to September 17, 2022. There were approximately 38,500 attendees at these paid, ticketed concerts during the 2022 Season. The free July 4
th concert had approximately 4,000-5,000 attendees. The estimated economic impact of the 2022 Season was approximately $25M in direct sales to local businesses and approximately $2.4M in local taxes, including sales and transient occupancy taxes.
Under the License Agreement, the Licensee is required to provide an Annual Report to City staff no later than October 15, 2022 describing how Licensee has complied with the performance objectives for the 2022 Season. City staff will then review the Annual Report, together with the sound monitoring data collected by the City for each Event held during the 2022 Season and will reasonably and in good faith determine whether Licensee has materially complied with the performance objectives.
Below are the Performance Objectives of the License Agreement for the 2022 term:
(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 CITY OF NAPA Printed on 12/8/2022Page 2 of 4
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(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.
The Licensee provided a report by the October 15
th deadline stating that STR Entertainment has
materially complied with all six Performance Objectives.
While staff recommends authorizing the Licensee to proceed with the 2023 season, there were a few shortcomings in the 2022 Season and staff is recommending an amendment to the License Agreement to address these shortcomings and require several improvements for the 2023 Season.
These recommended improvements include:
· Staff is requesting the Licensee apply for a Building Permit for the stage installation at least 60 days in advance of the installation period to ensure there is adequate time to process the Building Permit prior to the first concert and not impede on the staff’s ability to approve the Special Event Permit for the concert series.
· The sound monitoring data collected for the 2022 Season (Attachment 3) demonstrated there were several concerts which exceeded the NMC Section 12.40.030(D) noise standards at the West Street & Pearl Street monitoring location which is measuring the noise impact to the nearest residential property. In contrast to the 2021 Season, the City received few noise complaints for the 2022 Season and the Licensee never exceeded the curfew of 10:00 pm.
The Licensee should continue to work with their internal sound technical staff as well as the talent’s sound technical staff (who provide the sound support for their individual concert) to adhere to the NMC standards.
· Staff is requesting the Licensee and City mutually agree on additional deadlines and milestones to complete related tasks for the July 4
th Community Concert and the turf
restoration and repairs that are required at the end of the 2023 Season when the stage and other equipment is removed from the Premises. The additional deadlines and adherence to these deadlines will aid with improved coordination between the City and the Licensee and the City will gain a higher level of satisfaction with these two specific agreement requirements for the 2023 Season.
· The Licensee will need to improve the aesthetics of the Premises after each concert as well as during the non-concert days. The City is requesting additional cleaning and litter removal at the Premises and all equipment returned to their non-concert day locations within 24 hours after the concert has ended. The City is also requesting the Licensee improve the aesthetics CITY OF NAPA Printed on 12/8/2022Page 3 of 4
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of the fencing around the stage to include decorative screening instead of the black screens used in 2022. Lastly, the City is requesting the Licensee to adjust the non-concert day layout to remove the fence line under the bridge. This fence line would be installed for each concert and removed after each concert.
· Since this is the final year of the agreement and there was a delay with completing the turf restoration in a timely fashion by the Licensee, staff is recommending increasing the security deposit from $1,000 to $40,000 to provide adequate funding for the turf restoration after the 2023 Season if the Licensee fails to complete the restoration as required by the agreement.
Staff recommends issuing a written notice to the Licensee to authorize the 2023 Season for 12 concerts between June 1, 2023 through October 22, 2023 and to negotiate with the Licensee to make the above amendments to the License Agreement.
FINANCIAL IMPACTS:
The license fee revenue from the License Agreement for 2022 Season was $61,127. The revenue projections are estimated to be approximately $70,000 for FY2023-2024.
CEQA:
City staff recommends that the City Council determine that the Recommended Action is exempt from CEQA pursuant to CEQA Guidelines Section 15303, which exempts the construction and location of small structures.
DOCUMENTS ATTACHED:
ATCH 1 - 2022-2023 License Agreement
ATCH 2 - 2022-2023 License Agreement Amendment
ACTH 3 - 2022 Season Sound Monitoring Data
NOTIFICATION:
None.
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ATTACHMENT 1
City of Napa
C0700V--A3Agreement No.
LICENSE AGREEMENT
This Agreement made by and between the CITY OF NAPA, a California charter city, hereinafter referred to as" City", and STR Entertainment, LLC, a California limited liability company managed by Ken Tesler (" Tesler"), hereinafter referred to as " Licensee" is effective on the Effective Date identified on the signature page.
WHEREAS, the City holds an easement for recreational purposes over the area commonly known as Oxbow Commons (" Oxbow Commons"); and WHEREAS, the City negotiated with Tesler and ultimately entered into that certain License Agreement dated October 19, 2018 (" Original Agreement") with an entity designated and managed by Tesler pursuant to which City licensed the Premises ( defined below) for purposes of allowing a stage and equipment to be located on the Premises for a 5- month period for the production and promotion of concerts and other events as part of a pilot program; and WHEREAS, on November 5, 2020, the City Council determined that the progress report to the City documented compliance with the requirements of the Original Agreement for use of the stage at Oxbow Commons for the term of June 1, 2019, through October 31, 2019 and authorized the City Manager to provide written notice to allow the exercise of the option to extend the term of the Original Agreement for the term of June 1, 2020 through October 31, 2020 pursuant to Section 13( a) of the Original Agreement ( the" Extension Option"); and WHEREAS, the Extension Option was subsequently exercised and the Original Agreement thereby extended through October 31, 2020; and
WHEREAS, due to the uncertainty created by the COVID-19 pandemic, the City agreed to amend the Original Agreement pursuant to Amendment No. 1 to the Original Agreement, extending the term of the Original Agreement for an additional season, from June 1, 2021 to October 31, 2021, in order to allow the rescheduling of many of the concerts that were previously scheduled for 2020; and
WHEREAS, the Original Agreement, as amended, will expire on October 31, 2021; and WHEREAS, Tesler and the City have negotiated for, among other things, the use of a portion of the Oxbow Commons depicted in Exhibit " A" attached hereto and incorporated herein by reference( the" Premises") for the purpose of Licensee erecting and maintaining a 60 foot x 60 foot stage and equipment from June 1, 2022 to October 31, 2022 (" 2022 Season") and June 1, 2023 to October 31, 2023 (" 2023 Season"), which will be used by Licensee to host a concert series at the Oxbow Commons; and
WHEREAS, City is willing to grant a license to Licensee ( an entity designated and managed by Tesler) for use of the Premises for the 2022 Season and 2023 Season upon the terms and conditions and for the purposes set forth herein.
NOW, THEREFORE, IT IS AGREED by the parties hereto as follows:
1. Grant of License. Subject to Section 12, 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 60-foot x 60- foot stage and equipment Stage") to be used by Licensee for producing music concerts and other events, subject to the following use restrictions:
a. The Stage shall be located in the area depicted on Exhibit " A" attached hereto and incorporated herein by reference.
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b. During each of the 2022 Season and 2023 Season, Licensee shall produce on the Premises a minimum of five ( 5) free music concerts or other events open to the public and may produce up to fifteen ( 15) paid ticketed music concerts or other events collectively, " Event Series"). If less than fifteen ( 15) paid ticketed music concerts or other events are scheduled within the 2022 or 2023 season, the License will provide one ( 1) free concert for every three ( 3) paid concerts. The music concerts or other events in the Event Series ( each, an " Event") may be promoted by Licensee. The music concerts or other events in the Event Series may also be promoted by a third- party promotor (" Third Party") pursuant to an agreement with Licensee. In the case whereby a Third Party promotes a music concert or other event such Third Party promoted music concert or other event will not count towards the Licensee' s fifteen maximum ticketed Events.
c. Prior to producing an Event on the Premises regardless of whether the Event is promoted by Licensee or a Third Party, Licensee shall apply for and obtain, a special event permit from the City in accordance with Napa Municipal Code Chapter 12.48 Special Event Permit"). Use of the Premises by Licensee to produce an Event is subject to availability on a first come, first served basis, and the City's reservation procedures and policies. 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 produced by Licensee on the Premises regardless of whether the Event is promoted by Licensee or a third party and issuance of the Special Event Permit will not be unreasonably withheld by the City. The Licensee shall apply for a Special Event Permit for each Event produced by Licensee on the Premises, for a total of up to twenty 20) Special Event Permits for the Event Series.
d. Any Special Event Permit issued to Licensee for production of an Event on the Premises shall include, but not be limited to, the following terms:
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.
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.
d. 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 and 2 ATTACHMENT 1
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any other events held on the Stage by Third Parties.
e. Licensee, at its sole discretion, may give its written consent to a Third Party to promote an event on the Stage. Notwithstanding the foregoing, Licensee shall make the Stage available for use by Third Parties that are not a part of the Event Series when it is not being used by Licensee for the Event Series pursuant to a written agreement between Licensee and the Third Parties. Licensee may charge Third Parties a commercially reasonable fee for use of the Stage for a concert or other event and for production costs, which Licensee shall negotiate in good faith; provided however, Licensee shall charge Third Parties that are non- profit corporations unable to pay industry rates or government agencies for production costs only. The License Fees in Subsections 3( b) and ( c) shall apply to all Events regardless of whether the Event is promoted by Licensee or a Third Party pursuant to an agreement with Licensee, and Licensee shall be responsible for paying such fees to City in accordance with Section 3. f. When the Stage is not in use by Licensee or a Third Party authorized 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 screen.
2. Term of License. The term of this Agreement shall commence upon June 1, 2022 Commencement Date") and continue through October 31, 2023 (" Term") unless terminated earlier as provided in Section 12 of this Agreement.
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 produced by Licensee on the Premises regardless of whether the Events are promoted by Licensee or a Third Party License Fees"):
a. Licensee shall pay to City a monthly flat fee of seventeen Hundred Dollars 1700) per month for 2022 and two Thousand Dollars ($ 2000) per month for 2023; and
b. For each free Event for which Licensee or the Event Caterer receives food and beverage revenue, Licensee shall direct the Event Caterer to pay to City a fee equal to seven percent ( 7%) of the gross food and beverage revenue that the Event Caterer generates at the Event; and
c. For each paid ticketed Event on the Premises, Licensee or Third Parties shall pay to City a fee based on the following schedule:
1) For each ticket sold that is$ 29 or less, $ 1 per ticket. 2) For each ticket sold that is between $ 30 and $ 59 dollars, $ 2 per ticket.
3) For each ticket sold by Licensee that is$ 60 or greater, $ 3 per ticket. d. Licensee shall pay the License Fees to the City by the 15t''day 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 15th. The monthly License Fees payment shall be accompanied by a report which contains the following information for each Event produced on the Premises during the reporting period:
1) the date of the Event;
2) the name of the entity promoting the Event;
3) the name of the attraction( s) appearing;
4) whether the Event was free or a paid ticketed Event; 5) for each Event that was free, the total monies that were received by Licensee or on Licensee' s behalf from the sale of food and beverage at the Event;
6) if the Event was a paid ticketed Event, the price per ticket and the number of tickets sold at each price point;
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7) the License Fees due for each Event produced on the Premises the prior month; and
8) 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 and copies of agreements with third parties for the promotion of events on the Premises.
4. Conditions of License. City grants the license to Licensee subject to the following conditions:
a. Licensee acknowledges that the Premises are currently utilized as a public park and that their primary purpose and design is to support the Napa River Flood Control Project.
b. By taking possession of the Premises, Licensee accepts the Premises in the condition existing on the 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. City shall be responsible for removing any equipment or items associated with concerts or events on the Premises either before or during the Term so as not to impede on the Licensee' s use the Premises. c. 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.
d. Licensee shall comply with all requirements of Napa Municipal Code Chapter
12. 48 and all conditions of approval of the Special Event Permit issued in conjunction with this Agreement.
e. In the event that the City or the Napa County Flood Control and Water Conservation District (" District") desires to make any repair, reconstruction, change, addition, or modification to the Premises including, but not limited to, the surface, subsurface, drainage system, water delivery system or other public facilities, utilities and/ or infrastructure, Licensee shall, if required by City or District, vacate the Premises or relocatethe Stage at Licensee's sole cost and expense. City agrees that it will consider other, equally feasible alternatives prior to requiring Licensee to vacate the Premises or relocate the Stage.
f. Licensee shall remove the Stage and any equipment from the Premises within 24 hours of Licensee's receipt of notice of a possibleflood emergency from the District.
5. Jnsurance. Without limiting Licensee' s indemnification obligations in Section 8, Licensee, and any Third Parties promoting events on the Stage, shall take out and maintain, throughout the Term, 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 agents, employees or subcontractors or any Third Parties:
a. Comprehensive or Commercial General Liability Insurance at least as broad as Insurance Services Office Commercial General Liability coverage ( occurrence form CG 0001), in an amount of $ 2,000, 000. 00 per occurrence. If a general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement or the general aggregate shall be twice the required occurrence limit. Said policy shall contain, or be endorsed with, the following provisions:
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1) The City and the District, 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 on the Premises. The coverage shall contain no special limitations on the scope of protection afforded to the City, the District, or 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 any insurance or self- insurance programs maintained by the City is excess to Licensee' s insurance and will not be called upon to contribute with it.
4) 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 the Commencement Date. The endorsements shall be on forms provided by the City or as approved by the 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.
6. Uses prohibited. The Premises shall not be used or permitted 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 agrees at all times during the Term of this Agreement to comply with any and all federal, state, or laws, statutes, regulations, ordinances, policies, procedures or permits ( including the Special Event Permit) now or hereafter 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 for which said Premises is permitted. Licensee shall not make, or cause to be made, any alterations to the Premises without the prior and express written consent of the City.
7. 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.
8. indemnification and Release of Claims.
a. Licensee Indemnification for Third Party Claims. To the fullest extent permitted by law, Licensee shall defend, indemnify and hold harmless the City, the District and their respective officers, employees and agents from and against any and all third- party 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 third party arising out of the activities of Licensee, its officers, employees, or agents hereunder or any Third Parties (" Third Party Damages"), excepting those Third Party Damages due to the active negligence, sole negligence or willful misconduct of City and those Third Party Damages due to the negligence of the Third Parties. This indemnification obligation is not limited in any way by any limitation on the amount or type of damages or compensation 5 ATTACHMENT 1
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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. b. Licensee Release of Claims. To the fullest extent permitted by law, Licensee shall release and hold harmless the City, the District and their respective officers, employees and agents from and against any and all claims by Licensee arising out of the activities of Licensee, its officers, employees, or agents hereunder or Third Parties, excepting those related to City' s breach of this Agreement or those arising out of or related to the active negligence, sole negligence or willful misconduct of City. c. No Indirect or Special Damages. Notwithstanding anything to the contrary set forth herein, in no event shall City or Licensee be liable to each other for any punitive, indirect, special, incidental or consequential damages, including but not limited to, loss of profits, loss of revenue, loss of business opportunity, loss of use or rental expenses whether or not such damages were foreseeable; provided however, this paragraph shall not limit Licensee' s indemnification obligations under subparagraph ( a) above.
9. Hazardous Materialg.
a. 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, subcontractors, 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. b. 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 simultaneouslyfurnish the other party copies of any claim, notices of violation, reports, or other writings received. c. 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 thisAgreement. d. If the presence of any hazardous material broughtonto the Premises by Licensee or Licensee' s employees, agents, contractors, and/ or invitees results in contamination of the Premises, Licenseeshall promptlytake 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.
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e. 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:
1) " Hazardous substances" and " pollutants and contaminants" as defined in CERCLA, 42 USC§§ 960114 and (33) and regulations issued pursuant thereto; 2) " 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 pursuantthereto; 3) " Hazardous chemicals" within the meaning of OSHA' s Hazard Communication Rules, 29 CFR§ 1910. 1200;
4) Any such materials regulated under state or local environmental laws and regulations similar to the foregoing federal authorities listed in 1-3 above; and 5) 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, includingcrude oil or any faction thereof, radon, PCB' s, radioactive material, toxic pesticides and herbicide, solvents, and materials containing asbestos or formaldehyde.
10. 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
Attn: Parks and Recreation Director
P. O. Box 660
Napa, CA 94559
Licensee: STR Entertainment LLC
Attn: Ken Tesler
4558 Stillson Street
Napa, CA 94558
11. No Assignment or Subletting by Licensee. This Agreement is personal to 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 without City's prior written consent. 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 attempt to assign this Agreement or Licensee' s obligations hereunder without the prior written consent of City is void, and at the option of City, shall terminate this Agreement.
12. Termination. This Agreement may be terminated as follows:
a. 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 Agreement 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.
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b. By Licensee with 30 days' prior written notice if the Premises is or becomes unusable, or if Licensee determines that the Premises are no longer suitable for Licensee's intended purpose, without further liability to either party, and upon Licensee' s satisfaction of its obligations set forth in this Agreement. c. By City with 30 days' prior written notice in the event that City or the District requires the use of the Premises for any legitimate public purpose or need or in the event that Licensee' s use and occupancy are in conflict with any existing or proposed public utilities or any proposed repair, construction, reconstruction, change or modification to the Premises, or to any public facilities, utilities or infrastructure located within the Premises, for which Licensee cannot or will not accommodate as required by City or District.
d. By City without notice in the event of any sudden, unforeseen or exigent circumstances that present a threat to public health or safety as determined by the City in its sole discretion.
e. In addition to the above, City may terminate this Agreement without notice pursuant to Napa Municipal Code 12.48. 100 in the event that the Parks and Recreation Director determines that as a result of inclement weather, the Stage would unreasonably damage the Premises, or the Director determines that any provision of Napa Municipal Code Section 12.48 or any condition of approval of a Special Event Permit issued to Licensee in conjunction with this Agreement has not been met or is being violated.
13. Reporting and Performance Objectives.
a. Performance Objectives. 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) Licensee shall resolve any conflicts or issues related to use of the Stage in a timely and reasonable manner;
4) Licensee shall achieve attendance goals mutually agreed to by the parties for the Event Series;
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 November 30th of each year during the Term describing how Licensee has complied with the performance objectives set forth in this paragraph. City staff will review the Annual Report and determine whether Licensee has fulfilled the performance objectives.
8 ATTACHMENT 1
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14. Copyright Protection. Licensee represents and warrants on behalf of itself, the event promoter, including any Third Parties, and/or musical group/performer that all copyrighted music will be performed or produced with the written permission of the copyright owner. Licensee further represents and warrants that any and all obligations under the copyright license shall be performed or completed by Licensee and/ or the designated representatives, the event promoter, and the musical group/ performer.
Without limiting the generality of the foregoing, Licensee shall pay all applicable BMI, ASCAP, and SESAC license fees that may be owed for any concert or event produced by Licensee or a Third Party under this Agreement. In addition to the indemnity provision contained in Section 8, Licensee agrees to indemnify and hold harmless City, the District and their respective officers, employees and agents from any and all liability, claims, costs, actions, expenses including reasonable attorneys' fees and court costs that may arise out of or in any way connected to or incurred directly or indirectly from infringement of a copyright license agreement or copyright infringement lawsuit or any breach of the representations, warranties, or agreements contained in this Section 14.
15. Surrender of Premises, Upon the expiration of the Term or the earlier termination of this Agreement, Licensee shall remove the Stage, the fencing and any other equipment from the Premises and restore the Premises to its condition prior to the Commencement Date. Licensee shall timely repair any damages to the Premises or the Oxbow Commons, including but not limited to the turf, park amenities, grounds, walkways, caused by, or resulting from, Licensee' s activities on the Premises. 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 staff costs.
16. 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 amended or modified orally. No amendment or modification of this Agreement is binding unless it is in a writing signed by both parties.
f. 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 9 ATTACHMENT 1
ATTACHMENT 1
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.
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 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. If any provision in any document attached or incorporated into this Agreement conflicts or is inconsistent with a provision in the body of this Agreement, the provisions in the body of this Agreement will control over any such conflicting or inconsistent provisions. i. Each Party' s Role In Drafting The Agreement. 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. 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. h. 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.
SIGNATURES ON FOLLOWING PAGE]
10 ATTACHMENT 1
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective on the Effective Date set forth below.
LICENSEE:
f .,. STR Entertainment LLC, a California limited liability company By: 1.14. 11•= 1• 11••••••••••••= di
ester, Managing Member
CITY:
CITY OF NAPA, alifornia charter city
By: 7
Steve Potter, CI y Manager
APPROVED AS TO FORM: COUNTERSIGNED:
By: By. /
1. Q
Mic ael Barrett, ity orney JoI RiElsenerg, Auditor
ATTEST:
By: j/
Tiffany arr n , City Clerk
Date:
Effective Date")
11 ATTACHMENT 1
ATTACHMENT 1
Exhibit " A"
Premises
Stage"
The Premises and Stage area are the area depicted in red below:
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12 ATTACHMENT 1
ATTACHMENT 1
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
ATTACHMENT 2
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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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ATTACHMENT 3 – 2022 SEASON SOUND MONTIORING DATA
Sound Monitoring
Locations
Venue/Wine Train Pearl & West Street Oxbow Preserve
NMC Requirement 86 dBA 65 dBA 65 dBA
6/19 Concert 82.3 64.4 52.7
6/25 Concert 78.1 64.2 52.4
7/29 Concert 82.6 65.3 54.1
8/12 Concert 85.4 68.1 56.2
8/14 Concert 85.5 67.0 55.8
8/23 Concert 76.3 62.8 53.9
8/26 Concert 85.5 68.0 57.1
8/27 Concert 85.1 69.0 57.8
8/28 Concert 85.2 68.7 56.4
9/4 Concert 88.1 70.2 57.3
9/17 Concert 80.3 64.1 54.0
Note: Average Sound Data from 6-10pm
ATTACHMENT 3
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