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HomeMy WebLinkAboutAmerican Promotional Events, Inc.-2011-02 LICENSE AGREEMENT THIS LICENSE AGREEMENT("License") is made and entered into this 7 day of March 2011, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF GRAND TERRACE,a public body,corporate and politic ("Agency"),and American Promotional Events, Inc., a California corporation ("Licensee"). RECITALS A. Agency is the owner of real property commonly known as 22317 Barton Road,APN 1167- 311-01,and 22293 Barton Road APN 1167-231-01,Grand Terrace,California("Property"). The property is more particularly described in Exhibit"A"hereto. B. Licensee desires to use the Property to sell legal fireworks on the Property beginning on June 28,2011 and ending at 9:00 P.M. on July 4,2011. C. Agency agrees to provide a license to use the Premises from the Commencement Date detailed in Section 2 of this License,to and including July 7,2011. Agency does not,however,desire to create a leasehold.As such,Licensee acknowledges that Agency requires Licensee to disclaim all possessory rights to the Property as a condition to issuing this License.On July 5,6 and 7, 2011,Licensee shall only have access to the Property to remove all materials from the property and to restore it to a clean condition, subject to the approval of the Agency Executive Director. NOW,THEREFORE, the parties hereto mutually agree as follows: I. GRANT OF LICENSE: Agency hereby grants to Licensee use of the Premises for the sale of safe and sane fireworks approved by the California State Fire Marshall and for no other purpose. 2. TERM: This License shall be in full force and effect,beginning June 1,2011 (Commencement Date)and shall terminate without notice by either party on July 7,2011. 3. USE OF PROPERTY: Licensee shall be subject to the following terms and conditions: a. Licensee shall not cause any construction,reconstruction,modification,or improvement of the Property other than that approved by the City of Grand Terrace before such work commences. b. The Property shall be kept in a clean and safe condition at all times,and the Licensee hereby assumes all liability arising from any injury or damage to any person or entity caused by the exercise of the rights herein granted. c. Agency makes no representation,covenant,warranty or promise that the Property is fit for any particular use, including the use for which this License is granted. Licensee is not relying on any such representation, covenant, warranty or promise and accepts the Property in its"as is" condition. d. Access to and use of the Property shall be limited to Licensee, its employees, agents and contractors and invitees. e. Licensee shall clear the property of any nuisance vegetation before establishing the Licensee's use. f. Licensee shall comply with the Grand Terrace Municipal Code and all requirements of the San Bernardino County Fire Department, and the State of California Fire Marshall. 4. CONSIDERATION: a. Licensee shall pay to Agency a fee of$1.00 (One Dollar) for use of the property. If Licensee holds over after the termination of this agreement, Section 27 of this License shall govern the parties rights and duties. b. Licensee shall also provide a clean up deposit of$1,000.00 (One Thousand Dollars), which shall be due on or before May 27, 2011. The $1,000.00 deposit shall be returned only when the property has been restored to a clean condition and the release of the deposit has been authorized by the Agency Executive Director or her designee: The deposit shall be returned within 10 calendar days of the Licensee's restoration of the property and upon written request. c. The fees shall be paid by check made payable to the "The Redevelopment Agency of the City of Grand Terrace". d. Licensee hereby expressly waives any and all rights to compensation for relocation assistance and benefits pursuant to California Government Code, Section 1260 et seq. 5. NON-DISCRIMINATION: Except as provided in Section 12940 of the California Government Code, during Licensee's performance of this License, Licensee shall not discriminate on the grounds of race, religious creed, color, national origin, ancestry, age physical handicap, medical condition, including the medical condition of Acquired Immune Deficiency Syndrome(AIDS) or any condition related thereto, martial status, sex or sexual orientation in use of the Premises during the term of this License. Further, Licensee agrees to conform to the requirements of the Americans with Disabilities Act in the performance of this License. 6. SUPERVISION: License shall be responsible for supervision and monitoring of all activities on the Property, including control of access to the Property at all times, and monitoring and abatement of any nuisance or hazard that is caused, or may be caused, by Licensee or Licensee's use. 7. FLAMMABLES, WASTE AND NUISANCES: Licensee agrees that it will not place or store, or allow any placement or storage of any hazardous waste or hazardous material within the Property. Licensee will obtain required approvals from the San Bernardino County Fire Department and State Fire Marshall and comply with all conditions and all laws and ordinances. Licensee will not commit any waste upon or damage to the Property, 2 nor suffer any to be done. Licensee also specifically agrees that it will not allow others to take such actions within the boundaries of the Property. Licensee further agrees that it will keep the Property clean, free from rubbish and debris, and in a condition satisfactory to Agency. 8. HAZARDOUS SUBSTANCES INDEMNITY: Licensee expressly agrees to and shall indemnify, defend,release and hold the agency, its officers, officials, directors, agents, servants, and employees harmless from and against any liability, loss, fine, penalty, fee, charge,lien,judgment, damage, entry, claim, cause of action, suit, proceeding(whether legal or administrative), remediation, response, removal, or clean-up, and all costs and expenses associated therewith, and all other costs and expenses (including,but not limited to, attorney's fees, expert fees, and court costs) in any way related to the disposal, treatment, transportation, manufacture, or use of any Hazardous Substances on, in, under, or about the Property by Licensee, its officers, directors, agents, or employees. This indemnity, defense and hold harmless obligation shall survive the expiration or termination of this License. 9. HAZARDOUS SUBSTANCES DEFINED: Hazardous Substances shall mean any (a) substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant,to CERCLA, 42 U.S.C.§ 9601, et seq.; The Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; The Resource Conservation and Recovery Act,42 U.S.C. § 6901, et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; The Clean Water Act, 33 U.S.0 § 1251, et seq.; The Hazardous Waste Control Act, California Health and Safety Code("H.&S.C.") § 25100, et seq.;The Hazardous Substance Account Act, H.&S.C. §25330, et seq.; the California Safe Drinking Water and Toxic Enforcement Act, H&S.C. § 25249.5, et seq.; Underground Storage of Hazardous Substances H.&S.C. § 25280, et seq.; the Carpenter- Presley-Tanner Hazardous Substance Account Act (H&S.C. § et seq.); The Hazardous Waste Management Act, H.&S.C. §25170.1, et seq.; Hazardous Materials Response Plans and Inventory H.&S.C. § 25001 et seq.; or the Porter-Cologne Water Quality Control Act, Water Code § 13000, et seq., all as amended, or any other federal, state or local statute, law, ordinance, resolution, code, rule,regulation, order or decree regulating , relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect, (b) substance, product, waster or other material of any nature whatsoever which may give rise to ability under any of the above statutes, (c)petroleum, crude oil or any substance which contains gasoline, diesel fuel or other petroleum hydrocarbons other than petroleum and petroleum products contained within regularly operated motor vehicles, and (d) polychlorinated biphenyls (PCB), radon gas, urea-formaldehyde, asbestos and lead. 10. ACKNOWLEDGMENT OF FULL BENEFITS: By execution of this License, Licensee, on behalf of itself and it heirs, executors, administrators, successors and assigns, hereby expressly and unconditionally waives any and all claims for damages, improvements, relocation assistance benefits, severance damages, interest, loss of goodwill, claims for inverse condemnation or unreasonable precondemnation conduct, or any other compensation or benefits, other than as already expressly provided for in this License. 3 11. WAIVER AND RELEASE: Licensee hereby acknowledges that it has had the opportunity to speak with or have been advised by an attorney and is familiar with the provisions of California Civil Code section 1542. 12. UTILITIES: The Agency shall be under no obligation to provide any utility service of any kind to the Property during the term of this License. If Licensee determines utilities are required for Licensee's use of the Property, Licensee shall arrange and pay directly for all utilities and services supplied to the Property, including but not limited to water, electricity, telephone and natural gas, together with any taxes thereon. 13. TAXES: Without admitting any such liability, Licensee recognizes and understands that this License may create tax liability for Licensee under state and federal tax laws. All taxes and assessments which become due and payable with respect to the Property and any improvements thereon, shall be the sole responsibility of Licensee, and any such payments shall not reduce any payment due Agency hereunder. If Licensee shall, in good faith, desire to contest the validity, the imposition, or the amount of any tax or assessment or any other governmental charge herein agreed to be paid by Licensee, Licensee shall permitted to do so; provided, however, the Licensee shall not permit or allow any lien to be placed or assessed upon the Property or any improvements thereon. 14. AGENCY'S RIGHT TO INSPECT: Agency shall have the right to inspect the Premises and any improvements made thereto at any time to ensure compliance with the terms of this License. Any repairs found necessary as a result of inspections and which are the responsibility of Licensee shall be made a promptly by Licensee, but in no event shall such repairs be initiated by Licensee later than twenty-four(24) hours after receipt of written notification of the need for such repairs. 15. FREE FROM LIENS OR CLAIMS: Licensee shall keep the Property free from any mechanics' or material men's liens or other liens of any kind or nature for any work done, labor performed, or material furnished thereon at the insistence of or on account of Licensee, and Licensee further agrees to indemnify and save harmless Agency from and against any and all claims, liens, demands, costs and expenses of whatsoever nature for any such work done, labor performed, or materials furnished. The Agency at any time may post and keep posted on the Property appropriate notices to protect the Agency against the claims of any such persons, firms or corporation. 16. INSURANCE: Licensee represents and warrants that it shall obtain, and shall thereafter maintain during the term of this License at Licensee's sole expense, such commercial general and automobile liability insurance as required to insure Licensee against damages for personal injury, including accidental death, as well as from claims for Property damage which may arise from or which may concern operations by anyone directly or indirectly employed by, connected with, or acting for or on behalf of Licensee. 4 • a. All liability insurance shall be issued by insurance companies authorized to transact liability insurance business in the State of California, with a liability rating of A or higher, and a financial rating of at least VII. b. Licensee's commercial general liability policy shall cover both bodily injury (including death) and Premises damage(including but not limited to premises- operations liability, products-completed operations liability, independent contractor liability, personal injury liability, and contractual liability), in an amount not less than $1,000,000 per occurrence, $2,000,000 aggregate. c. Licensee's automobile liability policy shall cover both bodily injury and Premises damage in an amount not less than $1,000,000 per occurrence, unless otherwise approved by the City's Risk Manager and the City Attorney, or their designees. d. These minimum amounts of coverage shall not constitute any limitation or cap on Licensee's indemnification obligations under Section 17 hereof. e. Insurance policies or original certificates and additional insured endorsements evidencing the coverage required by this License, for both commercial general and auto liability, shall be filed with Agency and shall include Agency, their officers, agents and employees as additional insured's. Said policies shall be in the usual form of commercial general liability insurance, but shall include the following: "It is agreed that the City of Grand Terrace and the Community Redevelopment Agency of the City of Grand Terrace, and its officers, employees and agents, are added as additional insureds under this policy." f. The policies shall not be canceled during the term of the agreement. g. Agency, its agents and employees make no representation that the limits of the insurance specified to be carried by Licensee pursuant to this License are adequate to protect Licensee. If Licensee believes that any required insurance coverage is inadequate, Licensee will obtain such additional insurance coverage as Licensee deems adequate, at Licensee's sole expense. 17. INTERFERENCE WITH USE: Licensee's use of the Property that exercise of the rights herein granted shall not in any manner whatsoever interfere with the Agency's operations. Agency shall at all times have access to the Property. The rights herein granted arc not exclusive rights an in no way limit the Agency's use of the Property for purposes no inconsistent with the uses granted herein. 18. INDEMNIFICATION: Except as to the sole negligence or willful misconduct of Agency, Licensee shall protect, defend, indemnify, and hold Agency and its officers, agents, employees and volunteers completely harmless from and against any and all liabilities, losses, suits, claims,judgments, fines or demands arising by reason of injury to or death of any person or damage to any Property, including all reasonable costs for investigation and defense thereof(Including but not limited to attorneys' fees, court costs, and expert fees), of any nature whatsoever arising out of or incident to this License and/or the use or occupancy of the Property or the acts or omissions of Licensee's officers, agents, employees, contractors, subcontractors, licensees, invitees or guests, regardless of where 5 the injury, death or damage may occur, unless such injury, death or damage is caused by the negligence or willful misconduct of Agency and/or its officers, employees or agents. The indemnification provision shall apply to any acts of omissions, willful misconduct or negligent conduct, whether active or passive, on the part of Licensee or any of Licensee's officers, agents, employees, contractors, subcontractors, licensees, invitees or guests. Agency shall use counsel reasonably acceptable to Agency in carrying out its obligations hereunder. 19. ASSIGNMENTS: This License is personal to Licensee, and Licensee shall not assignor transfer this License or any privilege thereunder, in whole or in part, and any attempt so to do shall be void and shall confer no right on any third party. 20. NON-POSSESSORY INTEREST: No permanent or possessory interest shall accrue to Licensee in the licensed Property by reason of this License or by exercise of the permission given and Licensee agrees to claim no such interest. 21. GOVERNING LAW AND JURISDICTION: Licensee agrees that in the exercise of its rights under this License, Licensee shall comply with all applicable federal, state, county and local laws, and regulations in connection with its use of the licensed Property. The existence,validity, construction, operation and effect of this License and all of its terms and provisions shall be determined in accordance with the laws of the State of California. Any action at law or in equity brought by either of the parties hereto for the purpose of enforcing a right or rights provided for by this License shall be tried in a court of competent jurisdiction in the County of San Bernardino, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county. 22. ENTIRE AGREEMENT: This License embodies the entire agreement between the parties hereto in relation to the subject matter hereof, and no other agreement or understanding, verbal or otherwise, relative to this subject matter exists between the parties at the time of execution of this License. This License may only be modified or amended by the mutual consent of the parties in writing. 23. NOTICES: Service of any notices,bills, invoices or other documents required or permitted under this License shall be sufficient if sent by one party to the other by United States mail, postage prepaid and addressed as follows: Licensee American Promotional Events, Inc. Community Redevelopment Agency 555 N. Gilbert Street City of Grand Terrace Fullerton, CA 92833 22795 Barton Road Attention: Rick Poe Grand Terrace, CA 92313 Attn: Agency Secretary 6 24. SEVERABILITY: Each provision, term, condition, covenant, and/or restriction, in whole and in part, in this License shall be considered severable. In the event any provision, term, condition, covenant, and/or restriction, in whole and/or in part, in this License is declared invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed from this License and shall not affect any other provision, term, condition, covenant, and/or restriction, of this License and the remainder of the License shall continue in full force and effect. 25. AUTHORITY: The individuals executing this License and he instruments referenced herein each represent and warrant that they have the legal power, right and actual authority to bind their respective parties to the terms and conditions hereof and thereof. 26. ATTORNEY FEES: The prevailing party in any action or proceeding to enforce any provision of this agreement or otherwise resolve any dispute arising from this agreement will be awarded reasonable attorney fees and costs incurred in that action or proceeding. IN WITNESS WHEREOF the parties hereto have caused this License to be duly executed on the date and year first written above. REDEVELOPMENT AGENCY OF AMERICAN PROMOTIONAL THE CITY OF GRAND TERRACE EVENTS, INC. By: *� k-� By: G 1 2/220/ Exe tive D rector Vice Pr ide nt ATTEST: By: 2tt.k- 3- P By: em"d,111rti9 - Agency Secretary APPROVED AS TO FORM: By: LII area Agency Counsel) 7