From: Manager
Cc: Vinh Nguyen; Jovan Grogan; Aracely Azevedo; Elizabeth Klotz; Paulina Morales; Damon Sparacino Subject: Item 5: Action Authorizing the City Manager to Negotiate and Execute a License Agreement for City Property including YSP
Date: Tuesday, December 16, 2025 3:59:10 PM
Attachments: YSP License Agreement- SBLX.pdf
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Dear Mayor and Councilmembers,
This email is submitted in response to RTC 25-1667 regarding authorization to negotiate and execute a License Agreement for the use of City property, including the Youth Soccer Park and adjacent City property.
We are pleased to report that the parties have completed negotiations and finalized the Agreement in accordance with the Term Sheet presented in the report. The Agreement is attached for the Council’s review and consideration. Consistent with standard procedures, this correspondence and the attached Agreement will be posted as part of the Council agenda materials.
Please do not hesitate to contact me should you have any questions or require additional information.
Regards,
JŌVAN D. GROGAN
City Manager / SCSA Executive Director / CEO Silicon Valley Power City Manager’s Office
1500 Warburton Avenue | Santa Clara, CA 95050
Direct: 408-615-2210 | Office: 408-615-2210
[email protected]
1 LICENSE AGREEMENT FOR USE OF YOUTH SOCCER PARK
This LICENSE AGREEMENT (this “ Agreement”) is made and entered into as of [INSERT DATE] (“Effective Date”) , by and between the City of Santa Clara a chartered municipal corporation, (“Licensor or “City”), and NFL Enterprises, LLC , a Delaware Limited Liability C ompany, with an address of 345 Park Avenue, 5th Floor, New York, NY 10154 (“Licensee or NFL”).
R E C I T A L S:
WHEREAS, Licensor owns and controls the Santa Clara Youth Soccer Park Fields, Santa Clara Youth Soccer Fieldhouse, Santa Clara Youth Soccer Parking Lot and all Yellow Lot 1 and Yellow Lot 2 adjacent space located at Santa Clara Youth Soccer Park, 5020 Stars and Stripes Dr., Santa Clara, Ca 95054 and Yellow Lots 1 & 2: located at 5166 Stars And Stripes Dr., Santa Clara, C A 95054 (collectively, the “Licensed Space”), which is pictorially illustrated on Exhibit A hereto;
WHEREAS, the NFL owns, produces and controls its annual professional football championship game known as the Super Bowl, which for the 2025-2026 NFL season, will be played in Santa Clara, CA at Levi’s Stadium in February 2026 (the “Event”);
WHEREAS, Licensee desires to obtain from Licensor, and Licensor desires to grant to Licensee, a license to use the Licensed Space for operations in connection with the Event subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the above recitals and for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:
1. TERM. The term of this Agreement shall commence on the Effective Date and shall end upon completion of the “Field Improvement Work” as defined in Section 3 (Consideration) below (the “Term”), unless terminated earlier as provided in this Agreement.
2. GRANT OF LICENSE.
A. Licensor hereby grants to Licensee a license for the exclusive use of the Licensed Space commencing on January 5, 2026 and ending on February 22, 2026 (the “Use Period”) for use solely in connection with the “Permitted Use” as described herein. For purposes of this Agreement, the “Permitted Use” includes developing and operating a broadcast compound, halftime show and rehearsal compounds, green rooms and NFL operational support compound in connection with the Event. Licensee shall also have the right to set reasonable rules and guidelines for use of, and access to, the Licensed Space during the Term as necessary to facilitate the Permitted Use. Licensee is solely responsible for monitoring access to the Licensed Space during the Use Period and enforcing when necessary.
B. Licensor hereby also grants to Licensee a license to perform the Field Improvement Work within the Licensed Space as specified in Exhibit B during the specific dates mutually agreed to by the parties and authorized in writing by the City Manager, which is expected to occur around June 2026 through September 2026 (“Field Improvement Work Period”). The Field Improvement Work Period is expected to be completed within ninety (90) days of the date in which the City Manager authorizes Licensee to start the Field Improvement Work.
2 3. CONSIDERATION.
A. In consideration for City’s grant of the license to the NFL as provided in Section 2.A , above, Licensee shall cause Colony Landscape & Maintenance, Inc. to complete the field improvement work described in Exhibit B (Field Replacement and Maintenance Work) (“Field Improvement Work”) on the terms set forth in this Agreement. The Field Improvement Work shall be performed during the Field Improvement Work Period.
B. If during the Field Improvement Work Period youth groups that typically use the Licensed Space are displaced, the City Manager or his designee(s) will make reasonable efforts to relocate such users to alternate City park facilities, and if necessary, to non-City park facilities. If non-City park facilities are required, Licensee will assist the City in coordinating alternative locations, including helping to identify, schedule, and coordinate the use of other suitable fields or facilities at the lowest possible cost, subject to City’s reasonable approval. Licensee will reimburse the City for reasonable documented relocation-related costs, including standard City field use fees, staff time, and third-party field use fees, up to a maximum amount of Fifteen Thousand Dollars($15,000).
City will submit itemized reimbursement request of payment to NFL, and NFL will remit payment to City within Thirty (30) business days of email notification or certified mail, whichever is first. .
C. In addition to the Field Improvement Work, Licensee will pay for the cost to replace fifteen existing dugouts at Youth Soccer Park with new dugout units up to the estimated total cost of Sixty Four Thousand Dollars ($64,000). City will purchase dugouts submit receipt of purchase to NFL for reimbursement, and NFL will remit payment to the City within Thirty (30) business days of email notification or certified mail, whichever is first.
4. FORCE MAJEURE. Notwithstanding anything to the contrary set forth in this Agreement, any delay or failure of any party hereto to perform its obligations under this Agreement shall not subject such party to any liability to the other parties or place it in breach of any term or condition of this Agreement if a) such delay or failure is caused by acts of God, embargoes governmental restrictions or regulations, strikes and other concerted acts of workers, fire, flood, drought, explosion, riots, significant threats or acts of war or terrorism, pandemics and epidemics or the like, disaster, civil disorder, rebellion, sabotage, curtailment of transportation service or public utilities, or other similar events, and b) such event or occurrence (i) in the case of the Licensor, p revents the performance of the Licensor obligations under this Agreement, and (ii) in the case of the Licensee, prevents the performance of the Licensee's obligations under this Agreement or makes the performance of such obligations illegal, as reasonably determined by the Licensee; provided, however, that, in each case, the nonperforming party shall promptly notify the other party of such event or occurrence and shall exert commercially reasonable efforts to overcome any such event or occurrence, if possible, and to resume performance of its obligations with all possible speed.
5. TERMINATION OF LICENSE.
A. Licensee may terminate this Agreement prior to the Use Period, by written notification to Licensor if in Licensee’s reasonable discretion, any significant event or circumstance occurs beyond NFL’s reasonable control that materially prejudices the safe conduct of the Permitted Use at the Licensed Space that cannot be promptly and reasonably resolved.
B. Licensee may also terminate this Agreement by written notice to Licensor if (i) the Event is cancelled; or (ii) if after the commencement of the Use Period and prior to occurrence of the Event Licensee reasonably determines that any significant event or circumstance occurs beyond NFL’s reasonable control that materially prejudices the safe conduct of the Permitted Use at the Licensed Space that cannot be promptly and reasonably resolved. In either the case of (i) or (ii) above, Licensee shall return the Licensed Space to its existing condition as required by Section 7 (Return
3 Licensed Space to Existing Condition) of this Agreement, and for each day that Licensee has made use of the Licensed Space pay to Licensor the amount of Eight Thousand Seven Hundred and Two Dollars ($8,702) per day.
6. CONDITION OF THE LICENSED SPACE . Licensee agrees and acknowledges that the Licensed Space is in good order as necessarily sufficient for Licensee to conduct the Permitted Use.
Licensor makes no other warranties or representations about the Licensed Space.
7. RETURN OF LICENSED SPACE TO EXISTING CONDITION.. Licensee agrees to quit and return the Licensed Space to Licensor upon completion of the Use Period in the same condition as was accepted by Licensee, ordinary wear and tear excepted to Licensor’s reasonable satisfaction.
Licensee further agrees to take good care of the Licensed Space and the fixtures and appurtenances.
Licensee shall also be responsible for the cost to repair any damage to the Licensed Spac e caused by Licensee’s access to and use of the Licensed Space during the Use Period and during the Field Improvement Work Period . A Licensor representative and Licensee (and/or its designee(s)) shall conduct pre- and post-event walk throughs at the beginning and end of the Use Period and Field Improvement Work Period to assess and document Licensed Space condition and any damages, if applicable. One pre-event walk through will occur prior to the Use Period and the second prior to the Field Improvement Work Period, and one post-event walk through will occur no more than five (5) days after the Use Period and the second prior to the Field Improvement Work Period. In addition, Licensee’s field replacement and maintenance vendor shall conduct a pressure test and general audit of Licensed Space irrigation system prior to the Use Period to ensure that there are no pre-existing leaks or issues. The dates of such walk through and pressure test shall be mutually agreed to upon the parties. The obligations set forth in this Section shall survive expiration or earlier termination of this Agreement.
8. BREACH OF AGREEMENT. In the event either party materially breaches this Agreement and such breach, if capable of a cure, is not cured within fifteen (15) calendar days of receipt of written notice thereof from the non- breaching party (or such shorter period as is reasonable under the circumstances) then the non-breaching party shall have the following remedies:
A. Specific Performance. The parties recognize and acknowledge that a material breach of this Agreement will cause the other party to sustain damages for which it would not have an adequate remedy at law for money damages, and therefore each of the parties agrees that in the event of any such material breach, the aggrieved party shall be entitled to the remedy of specific performance of the provisions of this Agreement, and injunctive and other equitable relief in addition to any other remedy to which it may be entitled, at law or in equity.
B. Monetary Damages. Except as otherwise expressly provided in this Agreement, the defaulting party will be liable to the non-defaulting party for all actual, direct damages arising out of or relating to its breach of this Agreement or its negligence, except that in no case will either party be liable to the other for lost profits.
C. Liquidated Damages. Unless due to a force majeure event or material breach by City that is not cured within fifteen (15) calendar days, if NFL fails to complete Field Improvement Work within ninety (90) days of the date in which the City authorizes NFL to start the Field Improvement Work, NFL will pay the City liquidated damages in the amount of Eight Thousand Seven Hundred and Two Dollars ($8,702) per day until the completion of the Field Improvement Work in accordance with this Agreement. Liquidated damages shall not be considered as a penalty, but as agreed monetary damages sustained by Licensor for impacts created by the Licensor’s inability to use Youth Soccer Park because of the delay and shall be the City’s sole remedy with respect to NFL’s
4 failure to complete the Field Improvement Work within the timeframe set forth herein
9. COMPLIANCE WITH APPLICABLE LAWS.
A. Use of Licensed Space. Licensee shall, at its own cost and expense, comply with all applicable federal, state and local laws, rules and regulations in connection with its use of the Licensed Space.
B. Field Improvement Work . In connection with the performance of Field Improvement Work , , Licensee (or Licensee shall cause it subcontractor, as applicable) at its own cost and expense, shall comply with all federal, state and local laws, including , if applicable, the Labor Compliance Addendum attached as Exhibit C.
10. HAZARDOUS MATERIALS.
A. Licensee shall not use or store Hazardous Materials of any kind on or near the Licensed Space which could contaminate the Licensed Area, without prior written permission from Licensor. In the event that any Hazardous Material is spilled or leaked or otherwise released on the Licensed Space during the Use Period or Field Improvement Work Period as a result of Licensee’s use of the License Space or as a result of Licensee’s provision of the Field Improvement Work, Licensee shall promptly take all steps necessary to remove any contamination resulting from such activities. Licensee accepts full responsibility for all activities and costs incurred related to cleaning up the Licensed Space from the effects of such spill or leak as described above. Licensee shall be responsible for meeting, and possess the means to satisfy, the requirements of all federal, state and local controlling agencies, such as the Bay Area Water Quality Management District and/or the Environmental Protection Agency, which may have jurisdiction over the region in which the Licensed Space is located or over the substance being used by Licensee on the Property. Notwithstanding any of the foregoing, Licensee shall have no responsibility for any Hazardous Materials used, stored, leaked or otherwise released in the Licensed Space by Licensor or any Licensor party during the Use Period or Field Improvement Work Period.
B. Hazardous Materials Defined. The term “Hazardous Material(s)” shall mean any toxic or hazardous substance, material or waste or any pollutant or contaminant or infectious or radioactive material, including but not limited to, those substances, materials or wastes regulated now or in the future under any of the following statutes or regulations and any and all of those substances included within the definitions of “hazardous substances,” “hazardous waste,” “hazardous chemical substance or mixture,” “imminently hazardous chemical substance or mixture,” “toxic substances,” “hazardous air pollutant,” “toxic pollutant” or “solid waste” in the (a) “CERCLA” or “Superfund” as amended by SARA, 42 U.S.C. Sec. 9601 et seq., (b) RCRA, 42 U.S.C. Sec. 6901 et seq., (c) CWA., 33 U.S.C. Sec. 1251 et seq., (d) CAA, 42 U.S.C. 78401 et seq., (e) TSCA, 15 U.S.C. Sec. 2601 et seq., (f) The Refuse Act of 1899, 33 U.S.C. Sec. 407, (g) OSHA, 29 U.S.C. 651 et seq. (h) Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801 et seq., (i) USDOT Table (40 CFR Part 302 and amendments) or the EPA Table (40 CFR Part 302 and amendments), (j) California Superfund, Cal. Health & Safety Code Sec. 25300 et seq., (k) Cal. Hazardous Waste Control Act, Cal. Health & Safety Code Section 25100 et seq., (l) Porter- Cologne Act, Cal. Water Code Sec. 13000 et seq., (m) Hazardous Waste Disposal Land Use Law, Cal. Health & Safety Code Sec. 25220 et seq., (n) “Proposition 65,” Cal. Health and Safety Code Sec. 25249.5 et seq., (o) Hazardous Substances Underground Storage Tank Law, Cal. Health & Safety Code Sec. 25280 et seq., (p) California Hazardous Substance Act, Cal. Health & Safety Code Sec. 28740 et seq., (q) Air Resources Law, Cal. Health & Safety Code Sec. 39000 et seq., (r) Hazardous Materials Release Response Plans and Inventory, Cal. Health & Safety Code Secs. 25500-25541, (s) TCPA, Cal. Health and Safety Code Secs. 25208 et seq., and (t) regulations promulgated pursuant to said laws or any replacement thereof, or as similar terms are defined in the federal, state and local laws, statutes, regulations, orders or rules. Hazardous Materials shall also mean any and all other substances, materials and wastes which are, or in the future become regulated under applicable local, state or federal law for the protection of health or the
5 environment, or which are classified as hazardous or toxic substances, materials or wastes, pollutants or contaminants, as defined, listed or regulated by any federal, state or local law, regulation or order or by common law decision, including, without limitation, (i) trichloroethylene, tetracholoethylene, perchloroethylene and other chlorinated solvents, (ii) any petroleum products or fractions thereof, (iii) asbestos, (iv) polychlorinated biphenyls, (v) flammable explosives, (vi) urea formaldehyde, and (vii) radioactive materials and waste.
C. Hazardous Materials Indemnity. Licensee shall indemnify, defend (by counsel reasonably acceptable to Licensor), protect and hold Licensor harmless from and against any and all claims, liabilities, penalties, forfeitures, losses and/or expenses (including, without limitation, diminution in value of the Licensed Space, damages for the loss or restriction on use of the rentable or usable space or of any amenity of the Licensed Space, damages arising from any adverse impact or marketing of the Licensed Space and sums paid in settlement of claims, response costs, cleanup costs, site assessment costs, attorneys’ fees, consultant and expert fees, judgments, administrative rulings or orders, fines, costs of death of or injury to any person or damage to any property whatsoever (including, without limitation, groundwater, sewer systems and atmosphere), arising from, or caused or resulting, either prior to or during the Term, in whole or in part, directly or indirectly, by the presence or discharge in, on, under or about the Licensed Space by Licensee, Licensee’s agents, employees, licensees or invitees or at Licensee’s direction of Hazardous Material, or by Licensee’s failure to comply with any Hazardous Materials Law, whether knowingly or by strict liability. Licensee’s indemnification obligations shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary Hazardous Materials management plan, investigation, repairs, cleanup or detoxification or decontamination of the Property, and the presence and implementation of any closure, remedial action or other required plans, and shall survive the expiration of or early termination of the Term. For purposes of the indemnity provided herein, any acts or omissions of Licensee, or its employees, agents, customers, sublessees, assignees, contractors or subcontractors of Licensee (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to Licensee.
D. At the Licensor’s request, Licensee, or its designee, shall provide a report within thirty (30) days following the expiration or termination of this License indicating that Licensee’s activities on the Licensed Area have not resulted in any spill, leakage or release of any Hazardous Materials on the Licensed Area or any area in the vicinity of the Property. Such report shall be provided at Licensee’s cost and be performed by an environmental consultant reasonably approved by Licensor.
11. NO USE OF NFL MARKS. Licensor shall have no right to use the NFL Marks (as defined below) for any purpose whatsoever (including in connection with any marketing or promotional efforts) without the prior written approval of Licensee in each instance (such consent to be grante d or withheld in the NFL’s sole discretion). For purposes of this Agreement, “NFL Marks” means the names, symbols, emblems, designs, and colorways of the National Football League and the NFL member clubs (“ Member Clubs ”), including the terms “National Football League”, “NFL”, “National Football Conference”, “American Football Conference”, “NFC”, “AFC”, “Super Bowl”, “Pro Bowl”, the National Football League Shield design, as well as the full team names, nicknames, helmet designs, uniform designs, logos and slogans of the Member Clubs, and any other indicia adopted for commercial purposes by the National Football League or any of its Member Clubs. Licensor acknowledges and agrees that, as between Licensee and Licensor, all right, title and interest in and to the NFL Marks belongs to Licensee. Licensor agrees that the NFL Marks possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustaine d by their unauthorized use. Notwithstanding anything to the contrary herein, Licensor recognizes that irreparable injury would be caused by the unauthorized use of any of the NFL Marks, and agrees that injunctive and other equitable relief
6 from a court of competent jurisdiction would be appropriate in the event of such unauthorized use, and that such remedy would not be exclusive of other legal remedies. Licensor recognizes that the great value and goodwill associated with the NFL Marks, as between Licensee and Licensor, belongs to Licensee and that the NFL Marks have secondary meaning.
12. FILM RIGHTS. For good and valuable consideration, receipt of which is hereby acknowledged, Licensor hereby grants permission to NFL, and its affiliates, licensees and assigns, to use, release, exhibit, depict, display, reproduce, photograph, film, cablecast, videotape record and broadcast in, at and around the Licensed Space (and for the avoidance of doubt, the Licensed Space itself) (the “Licensed Space Footage”) in connection with the Event, as well as for all ancillary and related commercial purposes, including, without limitation, all advertising, publicizing, promotion, merchandising and exploitation, by any and all media, technology and devices, in perpetuity, throughout the universe, at no charge to NFL. It is agreed that no payments, residuals, reuse fees or other compensation shall be made to Licensor or any other party in connection with the use of the Licensed Space Footage. Licensor hereby consents to using, broadcasting, photographing, filming, cablecasting and videotape recording such scenes as NFL may rea sonably desire, including, but not limited to, any signs, slogans, logos, brands, artwork, books, pictures, displays, names, identifying marks, numbers, destinations, posters, wall hangings and the like as well as trademarks, services marks, logos or other intellectual property belonging to the Licensor and the Licensed Space, whether found upon, seen from, or associated with the Licensed Space. Licensor acknowledges and agrees that to the extent Licensor has the authority to so authorize, all right, title and interest in the Licensed Space Footage will belong solely and completely to NFL for its use by any and all means, media, devices, processes and technology now or hereafter known or devised, in perpetuity, throughout the universe, at no charge to NFL. Licensor also authorizes, to the extent Licensor has authority to so authorize, NFL to use and authorize others to use the likeness and information concerning the Licensed Space in connection with the Licensed Space Footage and the Event and in connection with the exploitation of the ancillary and subsidiary rights to the Licensed Space Footage, as well as for any related commercial purposes (including, without limitation, for advertising, marketing, publicizing, promoting, exhibiting, expl oiting and merchandising, as well as for outtakes and derivative version of the Licensed Space Footage, in whole or in part, and for any other television project or other production), by any and all means, media, devices, processes and technology, now or h ereafter known or devised, in perpetuity, throughout the universe, at no charge to NFL. Licensor hereby waives all rights of inspection or approval.
13. ADVERTISING/SPONSORSHIP/PRODUCTS. During the Use Period, NFL shall have the right (but shall not have the obligation) to use the Licensor’s name, trademark and/or logo in any form of invitations or advertisements (such as printed, electronic, audio, visual) related to the Event, whether for internal or external publication, subject to Licensor’s approval, which may be withheld in Licensor’s sole discretion. Licensor acknowledges that NFL has existing relationships with various third- party sponsors (collectively, the “Sponsors”). During the Use Period, Licensor shall ensure that no products, services, signage or other promotional materials, that in NFL’s sole opinion, conflict with or are competitive to any Sponsors are served at the Licensed Space during the Event. At NFL’s request, Licensor shall remo ve and/or cover any products, signage or other promotional materials within the Licensed Space that, in NFL’s sole opinion, conflict with or are competitive to any Sponsors. Licensee may exclusively serve the products of the Sponsors at the Licensed Space during the Event During the Use Period, NFL shall have the sole and exclusive right to supply at the Event, products of the Sponsors (including, without limitation, food and beverage products), and no stocking, corkage or other fees shall be applied thereto.
14. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants that: (i ) it
7 has full corporate power and authority to execute, deliver and perform this Agreement; (ii) the person signing this Agreement on behalf of such Party has been properly authorized and empowered to enter into this Agreement by and on behalf of such Party; and (iii) this Agreement is the legal, valid and binding obligation of such Party and is enforceable against each such Party in accordance with its terms. Licensor further represents and warrants that by entering into this Agreement, Licensor has acted in full compliance with all applicable city and state laws, including the Charter of the City of Santa Clara and Municipal Code, consistent with past administrative practice and with the 2001 CUP application for Soccer Park.
15. EXCLUSIVE ACCESS. Licensor represents, warrants, covenants and agrees that (i) the use of the Licensed Space as set forth herein shall be exclusive to Licensee, its contractors and designees, and no other persons shall have the right to use, or have access to, the Licensed Space during Use Period, and (ii) there are no events currently scheduled at the Licensed Space that would conflict with or materially impede the Permitted Use, including, ingress and egress to the Licensed Space and set-up and take-down of the Licensed Space.
16. STAFFING AND SECURITY. NFL shall have the right to retain, at its own expense and in its sole discretion, vendors of the NFL’s choice to perform all services required for the conduct of the activities at the Licensed Space, including, without limitation, security services, de corating services, and general contractors/event production companies. Licensee shall be responsible for all Licensed Space security and safety policies and procedures and for procuring, operating, managing, among other things, access control for appropriately credentialed individuals and staff and/or ticketed patrons (as applicable); the deployment of third-party, licensed security personnel; the deployment of metal detectors and x -Ray machines; security screening of all individuals to include NFL staff and contractors, subcontractors or other persons performing services; deployment of explosive ordinance detection canines, as appropriate; the deployment of vehicle mitigation barriers, as appropriate; and the deployment of law enforcement officers, as appropriate.
17. INDEMNIFICATION.
A. Licensee shall indemnify, hold harmless and defend (collectively “Indemnify ”) Licensor and its council, officers, employees, agents, successors, and assigns (collectively “Indemnitees”) from and against any and all claims, actions, suits, demands, causes of action, liabilities, obligations, damages, losses, recoveries, settlements, deficiencies, costs or expenses (including, without limitation, reasonable attorneys' fees and expenses) (collectively, “ Losses”) resulting from, arising out of, or relating to Licensee’s use of the Licensed Space that are caused or claimed to be caused by the acts, errors, and/or omissions of Licensee or anyone whose acts for which Licensee is responsible, including invitees, employees, contractors, and subcontractors (collectively “Responsible Parties”). Licensee’s responsibilities under this Section 16 (Indemnification) include liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts of Licensor, which may be in combination with the acts or omissions of any Responsible Party, provided that Licensee’s duty to Indemnify will not include Losses arising from the sole negligence or willful misconduct of Licensor or losses resulting from Licensor’s adjudicated breach of, or any of its representations or warranties under this Agreement
B. Notwithstanding, Licensee’s obligation to defend Licensor hereunder, Licensor has the right to conduct its own defense and seek reimbursement for reasonable and necessary costs of defense from Licensee, if Licensor chooses to do so.
C. Licensee agrees to pay any and all costs Licensor incurs enforcing the provisions set forth in this Section 16 (Indemnification).
D. Subsection A of this Section 17 (Indemnification) notwithstanding, in accordance with California Civil Code section 1668, as amended, nothing in this Agreement will be construed to exempt Licensor from its own fraud, willful injury to the person or property of another, or violation of law.
8 E. Nothing contained in this Agreement will be construed to require Licensee to Indemnify Indemnitees against any responsibility or liability in contravention of California Civil Code Section 2782.8, as amended. To the extent this Agreement is a “construction contract” as defined by California Civil Code section 2783, as a mended, such duties of Licensee to Indemnify will not apply when to do so would be prohibited by California Civil Code section 2782, as amended.
F. Licensor’s acceptance of any Field Improvement Work will not operate as a waiver of Licensor’s rights under this Section 17 (Indemnification).
G. The parties expressly agree that this Section 1 7 (Indemnification) will survive expiration or early termination of the Agreement.
18. WARRANTY AND STANDARD OF CARE.
A. NFL warrants that Improvement Work will be performed in a professional manner consistent with industry standards and City specifications for a period of one year after acceptance (the “Warranty Period”). NFL shall promptly repair or replace, at no cost to the City, any work that fails to meet these standards, including unhealthy or failing turf. These warranty obligations shall survive the termination or expiration of the Agreement through the Warranty Period.
19. INSURANCE.
A. Licensee shall procure and maintain, at its own expense, extending through the Term, the following liability and other insurance program(s) provided by insurers rated A.M. Best, A-VII or better: (i) Comprehensive Commercial General Liability insurance, on an occurrence form, with a combined single limit for bodily injury and property damage, including products liability (including completed-operations coverage), coverage for contractual liability, independent contractors, broad form property damage, personal and advertising injury, in an amount no less than Five Million Dollars ($5,000,000.00) per occurrence and Ten Million Dollars ($10,000,000) aggregate; (ii) Auto Liability insurance, on an occurrence form, with a combined single limit for bodily injury and property damage in an amount no less than Two Million Dollars ($2,000,000.00) per occurrence; (iii) Workers’ Compensation insurance in an amount and form which meets all applicable statutory requirements, and which specifically covers all employees who provide services and all risks to such persons under this Agreement; and (iv) Employers’ Liability insurance in an amount in no less than Five Million Dollars ($5,000,000.00).
B. Prior to the commencement of the Use Period: Licensee shall deliver to Licensor a Certificate of Insurance evidencing each program of insurance required under this Agreement. All such Certificates of Insurance shall be sent via registered or certified mail, or email with a confirmatory copy by first class mail, or a reputable overnight delivery service that provides evidence of delivery, and shall be addressed to:
City of Santa Clara City Manager’s Office c/o EBIX, Inc., P.O. Box 100085 – S2, Duluth, GA 30096, Email: [email protected].
i. Such certificate of insurance will name City of Santa Clara, its City Council, commissions, officers, employees, volunteers and agents are to be covered as additional insureds on the Contractor’s commercial general liability policy, including ongoing and completed operations, and auto liability policies in respect to liability arising out of Contractor’s work for City.
ii. Such policies must contain the express condition that Licensee’s insurance providers agree to waive any rights of subrogation they may have against Licensor. iii. Licensee’s insurance will be primary and Licensor’s insurance, if any, will be non- contributory and excess. When providing the required limit of insurance using a combination of primary and umbrella and/or excess policies, Licensee will confirm on the certificate of insurance that the umbrella and/or excess policies follow form to the primary insurance and will drop down in the event of exhaustion of the primary insurance.
9 iv. The required insurance limits may be achieved through a combination of primary and umbrella or excess liability policies. Any umbrella or excess policy shall provide coverage at least as broad as the underlying primary policy and shall apply immediately (“drop down”) when the primary limits are exhausted, without any gaps in coverage.
C. Licensee shall provide, or require its contractor to provide the same minimum insurance coverage required herein except as with respect to limits. Additionally, Licensor will require Licensee or contractor providing Field Improvement Work to procure and maintain Contractor’s Pollution Liability covering liability for third-party bodily injury, property damage and cleanup costs resulting from a pollution incident with a limit not less than Two Million Dollars ($2,000,000) per occurrence.
Licensee shall use commercially reasonable efforts to provide the Licensor with written notice of any modification or termination of any program(s) of insurance during the Term within thirty (30) days of such modification or termination.
All communications regarding these insurance programs shall be sent to the Parties pursuant to the notice information set forth in Section 21 of this Agreement.
20. INDEPENDENT CONTRACTOR.
A. Licensee is an independent contractor and is not an employee of Licensor, including, but not limited to with respect to Licensee’s performance of Field Improvement Work. The persons used by Licensee to provide or perform Field Improvement Work under this Agreement will also not be considered employees of Licensor for any purposes.
B. Licensor has no authority (whether express or implied), nor shall Licensor hold itself out as having any authority, to obligate or make representations on behalf of Licensee. None of Licensor or its employees shall be considered to be an employee of Licensee by reason of the provisions of this Agreement.
C. Licensor and Licensee are not partners, co-venturer, joint venturers, affiliates, or agents by reason of the provisions of this Agreement or otherwise.
21. NOTICES. All notices to the respective Parties shall be in writing and deemed sufficient if personally delivered or sent by certified mail, postage prepaid, return receipt requested, addressed to the Party to be notified at that address specified herein. Any such notice shall be deemed as received on the date of personal delivery to the Party (or such Party’s authorized representatives).
If to Licensor: City of Santa Clara
1500 Warburton Drive
Santa Clara, CA 95050
Attn: Damon Sparacino, Parks and Recreation
Director
[email protected]
With a copy to: City Attorney’s Office
If to the NFL: National Football League
345 Park Avenue
New York, NY 10154
Attn: Kelsey Pietrangelo
Insert Kelsey.Pietrangelo NFL.com
With a copy to: NFL Legal
10 22. ENTIRE AGREEMENT. This Agreement, together with all exhibits hereto, constitutes the entire agreement between the parties, and supersedes all representations, statements or prior agreements and understandings both written and oral with respect to the matters contained in this Agreement and exhibits hereto. No person has been authorized to give any information or make any representation not contained in this Agreement. This Agreement may be amended only by a signed written agreement between the parties.
23. ASSIGNMENT. Except as otherwise expressly authorized in this Agreement or previously approved by Licensor, Licensee shall not assign this Agreement and shall not subcontract any of its performance hereunder without the prior written consent of Licensor in its sole discretion. , Licensee shall cause its subcontractors to comply with the applicable terms and conditions of this Agreement as if such subcontractor were a party hereto, provided that in all cases Licensee shall be responsible for the acts and omissions of any subcontractor.
24. COMPLIANCE WITH TAX LAWS. The license interest described in Section 2 (Grant of License) above may be subject to property taxation if a possessory interest is created for Licensee; in such case, the Licensee may be subject to the payment of property taxes levied on the interest in accordance with Revenue and Taxation Code Section 107.6. Licensor and Licensee shall cooperate in the defense of any action instituted by the County to assess a possessory interest tax levy.
25. NO THIRD-PARTY BENEFICIARY. This Agreement shall not be construed to be an agreement for the benefit of any third party or parties and no third party or parties shall have any claim or right of action under this Agreement for any cause whatsoever.
26. CONFLICTS. In the event of a conflict between the terms of this Agreement and any schedule attached hereto (including, but not limited to, any invoices), the terms and conditions of this Agreement shall govern.
27. CONFLICTS OF INTEREST. Licensee certifies that to the best of its knowledge, no Licensee officer, employee or authorized representative has any financial interest, direct or indirect, which could conflict with the faithful performance of this Agreement. Licensee is familiar with the provisions of Government Code section 87100 and following, and certifies that it does not know of any facts which would violate these code provisions. Licensee will notify Licensor if a conflict arises.
28. SEVERABILITY. In case any one or more of the provisions of this Agreement shall, for any reason, be held invalid, illegal, or unenforceable in any respect, it shall not affect the validity of other provisions, which shall remain in full force and effect.
29. AMENDMENTS. This Agreement may only be modified by a written amendment duly authorized and executed by the parties to this Agreement.
30. GOVERNING LAW. This Agreement is made, entered into, and shall be performed in the City of Santa Clara, California, and all rights and remedies of the parties hereto shall be interpreted under, construed, and enforced in accordance with, laws of the State of California . In the event that suit shall be brought by either party to this Agreement, the parties agree that venue shall be exclusively vested in the State courts of the County of Santa Clara.
31. COUNTERPARTS. This Agreement may be executed in multiple copies, each of which shall be deemed an original, but all of which shall constitute one agreement after each Party has signed such counterpart. Delivery of an executed counterpart of a signature page to this Agreement by any
11 commonly-used electronic means (e.g., PDF)) shall be effective as delivery of a manually executed counterpart of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
LICENSOR: LICENSEE:
By: _______________________
Name: Jovan Grogan
Title: City Manager
Date: _______________________
Approved as to Form:
___________________________
Glen R. Googins, City Attorney
By: _____________________
Name:
Title:
Date: _____________________
Exhibit A
THE LICENSED SPACES
Yellow Lot Adjacent Property
Youth Soccer Park Property
EXHIBIT B
IMPROVEMENT WORK: NATURAL TURF REPLACEMENT
Replacement Fields shall be replaced and maintained as follows:
I. With respect to replacing the Replacement Fields, Licensee shall cause its vendor to:
(a) New natural turf shall be procured and installed per Section 3.2, “Natural Soccer Fields”, of the City of Santa Clara Parks and Recreation Department – Park Amenities & Design Standards, except for turf material as mentioned below to be Tahoma 31 and other special requirements, as delineated in this Exhibit B.
(b) Replace 15 existing dugouts with new per the attached quote from Soccer Innovations.
(c) Conduct a pressure test and general audit of irrigation system prior to NFL moving into site to ensure that there are no pre-existing leaks or issues.
Pressure test and audit dates to be mutually upon between NFL, vendor and Licensee.
(d) Optional item considered the City’s responsibility and expense: Perform thatching removal. Remove all existing grass and organic matter above the current sand base, and resodding with new grass.
(e) Install turf type: T31-BRI: 1/2" THICK TAHOMA 31
(f) Mobilize equipment/project management
(g) Demolish and off haul existing sod/rootzone (up to 1.5” Depth of Cut (1 Pass) (h) Blend and laser grade existing site organic matter/soils (i) Roll and top dress with ¼” sand
(j) Install and adjust new irrigation heads to grade
(k) Provide detail specification of installed material to the City after completion. (l) Laying Sod
i. Moisten prepared surface immediately prior to laying sod. ii. Lay sod immediately after delivery to site to prevent deterioration. iii. Lay sod smooth and tight with no open joints visible, and no overlapping; stagger end joints 12 inches minimum. Do not stretch or overlap sod pieces.
iv. Where new sod adjoins existing grass areas, align top surfaces. v. Where sod is placed adjacent to hard surfaces, such as curbs, pavements, etc., place top elevation of sod 1/4" inch below top of hard surface.
vi. Water sodded areas immediately after installation. Saturate sod to 4 inches of soil.
vii. After sod and soil have dried, roll sodded areas to ensure good bond between sod and soil and to remove minor depressions and irregularities.
Roll sodded areas with roller not exceeding
II. Maintenance Period (General):
(a) Furnish all labor, material, equipment and services required to maintain landscape in a healthy growing condition and in a neat and attractive appearance throughout the maintenance period.
(b) The Maintenance Contractor shall be experienced in horticulture and landscape maintenance, practices and techniques, and shall provide sufficient number of workers with adequate equipment to perform the work during the maintenance period.
(c) Maintenance Period begins after all punch list or corrective items have been accepted by the City.
(d) Any day of improper maintenance, as determined by the City, shall not be credited as an acceptable maintenance period day. The maintenance period shall be extended on a daily basis if the work is not in accordance with this document.
(e) Maintenance shall continue beyond the ninety (90) day maintenance period, as required, until final acceptance is given by the City (f) A phased maintenance period will not be accepted.
(g) All plant material and other materials installed under the Contract shall be guaranteed against any and all poor, inadequate or inferior materials and/or workmanship or improper maintenance, as determined by City, and shall be replaced by the Contractor at his expense. Warranty periods are as follows:
1. Groundcover and Turf: One year.
2. Replacement: Any materials found to be dead, missing, declining or not in a satisfactory or healthy condition during the maintenance period shall be replaced immediately. City shall be sole judge as to the condition of material. Material to be replaced within the guarantee period shall be replaced by the Contractor within five (5) days of written notification by the City. All replacement materials and installations shall comply with this document.
(h) Proper maintenance, including watering, weeding, mowing, edging, fertilization, rolling of turf, replacement and infill of mulch, replacement of jute mesh, infill of settled areas, repairing and protection shall be required until entire project is finally accepted.
(i) Watering: Thoroughly water to insure vigorous and healthy growth until work is accepted. Water in a manner to prevent erosion due to application of excessive quantities of water. When hand watering use a water wand to break the water force.
(j) Weeding: Keep turf areas and areas between plants free of weeds. Control weeds with pre-emergent herbicides. If weeds develop, use legally approved herbicides and hand remove. Avoid frequent soil cultivation that destroys
shallow roots. Weeding also shall be included in all paved areas including public or private sidewalks.
III. Maintaining the Replacement Fields:
(a) Reel mowing of each of the Replacement Fields two times per week, string trimming/edging as needed
(b) Pro Core 648 Aeration on each of the Replacement Fields one time during the Replacement and Maintenance Period
(c) One Fertilizer Application on each Replacement Fields during the Replacement and Maintenance Period Materials Included)
(d) Two Spray applications on Replacement Fields as needed to prevent limit weeds and or disease (Materials Included)
(e) No sports line painting included, as fields must be closed during the grow in period.
(f) Rolling of Replacement Fields as needed
(g) Initial mowing of turf will commence when the grass has reached a height of two and one- half (2-1/2) inches. The height of cut will be two (2) inches. After initial establishment maintain Bermuda and creeping grasses at 1½” and fescues or rye grass at 2”. Mowing will be at least every 4-6 days for the second through fifth cuttings, and at least once per week after that for fescue.
Bermuda grass is to be mowed minimum twice a week.
(h) Bent grass is to be mowed daily. Turf must be well established and free of bare spots and weeds to the satisfaction of the City prior to final acceptance. (i) Excess grass clippings shall be picked up and removed from the site and premises. Let turf areas dry out enough so that mower wheels do not skid, tear or mark the lawn. Edges shall be trimmed at 90 degrees to pavement, at least weekly or as needed for neat appearance. Clippings shall be removed from paved and planting areas, etc. and disposed of from the site. (j) Watering: Lawns shall be watered at such frequency as weather conditions require to replenish soil moisture below root zone and to establish healthy strands of grass.
(k) Contractor is responsible for water audits and payment of any local penalties by local water districts at no additional cost to the Owner. (l) Disease control: Control turf diseases throughout the maintenance period with legally approved fungicides and herbicides. Replace any damaged or infected grass.
(m)Control broad leaf weeds with selective, legally approved herbicides throughout maintenance period.
(n) A final application of selective herbicide shall be applied at the end of the landscape maintenance period, acceptance, just prior to final acceptance. (o) Hand weed as required in addition to the application of weed control herbicides and pre- emergent to maintain all areas free of weeds including turf species other than the specified species. Periodic or predetermined weeding schedules may not be adequate and should be supplemented.
(p) During maintenance period an application of turf maintenance fertilizer, as specified, shall be made at thirty (30) day intervals from the date of maintenance period start at a rate of five (5) pounds per 1,000 square feet, and as required by the agronomic soils report.
(q) Final application (just prior to final acceptance) shall be made with the slow- release maintenance fertilizer as required by the agronomic soils report. (r) Replacement: At conclusion of maintenance period a final observation of lawn and turf areas shall be made. Remove diseased areas and unhealthy strands of grass from the site; do not bury into the soil. Replant areas with material and in a manner as specified on the Plans and Specifications at no additional cost to the Owner.
All grass is to be fully grown with 100% coverage with a suitable thatch layer prior to turnover and final acceptance.
(s) Irrigation System Observation: The Contractor shall check all systems for proper operation. Lateral lines shall be flushed out after removing the last sprinkler head or two at each end of the lateral. All heads are to be adjusted as necessary for unimpeded head to head coverage.
(t) Irrigation Valves: Contractor shall set, and verify that all pressure regulating valves to the operating pressure specified by the manufacturer (u) Controllers: Set and program automatic controllers for seasonal water requirements. Give the Owner's Representative instructions on how to turn off system in case of emergency.
(v) If the irrigation system is designed and specified to be operable from a central irrigation computer controller located off site, or a standard controller on site, the contractor shall demonstrate to the City and future maintenance contractor that the central irrigation system is fully installed and operational from this off site control system as described and specified. Contractor shall make all adjustments as necessary to insure this operation prior to final acceptance.
(w) Repairs: Repair all damages to irrigation system at the Contractor's expense. Repairs shall be made within twenty-four (24) hours or sooner to prevent damage to site improvements.
(x) During maintenance work, keep pavements clean and work area in an orderly condition. Haul away and remove all debris from landscape areas, and do not leave any clippings, fertilizer, amendments and/ or other material from landscape planting and/or maintenance period.
(y) Power wash all pavement and flatwork as necessary to remove all staining and tire marks on surfaces caused by maintenance or construction vehicles, prior to final acceptance.
3.2 Natural Soccer Fields
1. NATURAL TURF SURFACE
Nursery-grown sod shall have the following characteristics:
A. Sod for planting areas shall be dense, healthy, field-grown on sandy soil with grass having been mowed at 1-inch height before lifting from field.
B. Sod shall be dark green in color, relatively free of thatch, free from disease, weeds, and harmful insects.
C. Sod shall be reasonably free of objectionable grassy and broadleaf weeds. Sod shall be considered weed free if no more than 2 such weeds are found per 100 sq feet of sod.
D. Sod shall be rejected if found to contain the following weeds: common bermudagrass, quack grass, Johnson grass, nimble weed, thistle, bindweed, bent grass, perennial sorrel, and bromegrass.
E. Sod variety shall be: Primary choice shall be Latitude 36, a with the secondary choice being Sports Turf Grass – Bandera. The sod shall be pre-ordered and grown atop the native sand base.
2. NATURAL TURF SOIL
A. TOPSOIL: Site to be rough graded to elevations shown on Civil Drawings.
B. All topsoil to be used for planting, shall have a complete soil analysis performed in a report from a reputable soil testing laboratory.
C. Root zone for sand-based turf and materials (USGA Root Zone Mix)
- Refer to planting details for depth.
- Recommendations for nutrients must be submitted to the landscape architect for review.
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- USGA Amended Rootzone Mix shall be the following:
a. 70% USGA Sand
b. 20% Peat Moss / Canadian Sphagnum
c. 10% Organic Greenwaste Compost
d. Mycorrhiza per manufacturer
3. NATURAL TURF BASE PREPARATION
A. Gravel base shall be placed above the prepared subgrade and below USGA Rootzone mix. See planting details for required depth
B. ASTM C-136 Standard Test Method for Sieve Analysis of Fine and Coarse Aggregates shall be performed prior to delivery to the site.
C. Compact per Geotechnical Engineer’s recommendations.
EXHIBIT C
LABOR COMPLIANCE ADDENDUM
This Agreement may be subject to the requirements of California Labor Code section 1720 et seq. requiring the payment of prevailing wages, the training of apprentices, and compliance with other applicable requirements. If applicable, Licensee shall comply with the following:
A. Prevailing Wage Requirements
1. Licensee shall be obligated to pay not less than the General Prevailing Wage Rate, which can be found at www.dir.ca.gov and are on file with the City Clerk’s office, which shall be available to any interested party upon request. Contractor is also required to have a copy of the applicable wage determination posted and/or available at each job site.
2. Specifically, Licensee is reminded of the need for compliance with Labor Code Section 1774-1775 (the payment of prevailing wages and documentation of such), Section 1776 (the keeping and submission of accurate certified payrolls) and 1777.5 in the employment of apprentices on public works projects. Further, overtime must be paid for work in excess of 8 hours per day or 40 hours per week pursuant to Labor Code Section 1811- 1813.
3. Special prevailing wage rates generally apply to work performed on weekends, holidays and for certain shift work. Depending on the location of the project and the amount of travel incurred by workers on the project, certain travel and subsistence payments may also be required. Licensee and any of its subcontractors are on notice that information about such special rates, holidays, premium pay, shift work and travel and subsistence requirements can be found at www.dir.ca.gov .
4. Only bona fide apprentices actively enrolled in a California Division of Apprenticeship Standards approved program may be employed on the project as an apprentice and receive the applicable apprenticeship prevailing wage rates. Apprentices who are not properly supervised and employed in the appropriate ratio shall be paid the full journeyman wages for the classification of work performed.
5. Licensee agrees to be fully and solely responsible for all matters relating to payment of its employees including but not limited to, Social Security (FICA) taxes, unemployment insurance taxes, workers’ compensation benefits, health insurance, or any other benefit incident to an employer-employee relationship.
6. In connection with the performance of Field Improvement Work under this Agreement, Licensee shall not discriminate, retaliate, permit discrimination, or permit retaliation on the basis of any legally protected status as prohibited by Federal, State, or local laws.
B. Audit Rights
All records or documents required to be kept pursuant to this Agreement to verify compliance with this Addendum shall be made available for audit at no cost to Licensor, at any time during regular business hours, upon written request and reasonable notice by the City Attorney, City Auditor, City Manager, or a designated representative of any of these officers. Copies of such records or documents shall be provided
to City for audit at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records or documents shall be made available at Licensee’s address indicated for receipt of notices in this Agreement.
C. Enforcement
City or the California Department of Industrial Relations may impose penalties upon Licensee, Licensee’s contractors and subcontractors for failure to comply with prevailing wage requirements.