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HomeMy WebLinkAboutContract 1942 (14-1 qg LICENSE AGREEMENT This License Agreement ("Agreement") dated as of the 25th day of October, 2021 ("Effective Date"), is made and entered into by and between CITY OF CATHEDRAL CITY, a California municipal corporation ("Owner"), and MUSEUM OF ANCIENT WONDERS, a California 501(c))(3)Non Profit Organization ("Licensee"). Hereafter, Owner and Licensee may sometimes be referred to individually as a"party,"and collectively as the "parties." RECITALS WHEREAS,Owner is the owner of certain unimproved real property known as Assessor's Parcel Numbers 687-196-002, 003, 004, 005, 006, 007, 008 located in Cathedral City ("City"), County of Riverside ("County"), State of California ("State") which is more particularly described on Exhibit "A"attached hereto and incorporated herein by reference ("Property");and WHEREAS, Licensee desires a license for non-exclusive access to and use of portions of the Property for the purpose of conducting the Permitted Activities (defined in Section 2); and Owner has agreed to grant Licensee such access to and use of portions of the Property, subject to the terms and conditions set forth in this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by this reference, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and for the mutual covenants contained herein, the parties agree as follows: 1. Grant of License;Scone. Owner hereby grants to Licensee, its officers, employees, agents, contractors, business invitees, and representatives (collectively, the "Licensee Parties"), a non-exclusive license to access and utilize those portions of the Property designated on Exhibit "A" attached hereto ("Licensed Area") for the purposes set forth in Section 2, below("License"). The License shall include the right to the non-exclusive use of the Property as may be necessary or required for ingress and egress to the Property by the Licensee Parties. Licensee acknowledges that the rights granted hereunder do not constitute a lease of any portion of the Property,nor create or vest in Licensee a leasehold estate, easement, ownership, or any other real property interest in or to any portion of the Property. 2. Permitted Activities. Subject to the terms and conditions set forth in this Agreement, as well as any covenants or conditions which may encumber the Property, and all local, state and federal laws and regulations, Licensee shall have the right to access, occupy and utilize the Licensed Area during the Term (defined in Section 3) of this Agreement for the following purposes, and for no other purpose unless agreed to in writing by Owner in its sole and absolute discretion(collectively,the"Permitted Activities"): (a) To provide Jurassic Wonders Exhibit consisting of eleven (11) Dinosaur Sculptures as identified in Special Use Permit dated November 10, 2021 in the designated areas of the Licensed Area;and 1 C 11 86000-3782782.1 (b) At least five (5) days prior to the Commencement Date, Licensee shall provide Owner with evidence of compliance with all governmental approvals required for Licensee's intended use of the Property, including but not limited to: (i) special use permit issued by the City, (ii) special event business license issued by the City,(iii) health and safety inspection approval by the Cathedral City Fire Department; and (iv) as further required in Section 5, below. Owner shall have no obligation or responsibility with regard to obtaining or maintaining any licenses, permits or other necessary governmental approvals that may be required for Licensee's intended use of Property. 3. Term. The term of this License will commence on January 02, 2022 at 7:00 a.m. (the "Commencement Date") and will expire, on January 1, 2023 at 6:00 p.m. ("Termination Date"). The period between the Commencement Date and Termination Date shall be referred to collectively as the"Term." 4. License Fee. At least five (5) days prior to the Commencement Date and as a condition precedent to the exercise of any of Licensee's rights under this Agreement, Licensee shall pay to Owner a licensee fee ("License Fee") in the amount of Zero Dollars ($0.00), in immediately available U.S. cash funds. 5. Maintenance and Use of Licensed Area. Licensee agrees to maintain the Licensed Area in a neat and clean condition free of all debris, trash and refuse. Licensee shall comply with all applicable laws, codes, ordinances, and other City requirements specific to the Permitted Activities,or affecting the cleanliness, safety,occupation,and use of the Licensed Area during the Term. Licensee covenants that no hazardous, toxic, flammable, or explosive material shall be permitted or released within the Licensed Area,as further set forth in Section 11 of this Agreement. Licensee shall not commit or suffer any nuisance upon or about the Licensed Area. In no event may Licensee conduct business other than as expressly provided in Section 2, above. 6. Modifications to the Property. Licensee may not make any material or permanent modifications to the Licensed Area without the Owner's prior written approval, which Owner may give or withhold in its sole and absolute discretion. If approved, all work undertaken by Licensee or its contractors, subcontractors and other agents in connection with the modifications shall be undertaken and completed in a good and workmanlike manner by professional, licensed and qualified personnel and contractors. Any fixtures installed by Licensee that cannot be removed without damage to the Property, or that remain on the Property after the expiration or earlier termination of this Agreement shall,at Owner's option and without payment or other compensation to Licensee, become the sole property of Owner upon such expiration or termination. Any non- affixed equipment and all furnishings shall be retrieved by Licensee at the end of the Term and Licensee shall fully repair any damage caused by such removal. 7. Surrender. Upon the expiration or earlier termination of this Agreement, Licensee shall surrender the License to Owner and return possession of the Property to Owner in substantially the same condition as exists on the Effective Date. 8. Insurance. From and after the Commencement Date, and continuing thereafter until the expiration or sooner termination of the Term, Licensee shall carry and maintain, at its 2 C1186-000--3782782.1 sole cost and expense, the following types of insurance in the amounts specified and in the form hereinafter provided for: (a) Commercial or comprehensive general liability insurance(including bodily injury and property damage) in an amount of not less than a single limit per occurrence of Two Million Dollars ($2,000,000) and Five Million Dollars ($5,000,000) aggregate, insuring Owner and its principals, officers, employees, agents, contractors, lenders, and insurers (collectively, "Owner Parties") against any and all loss and liability arising out of Licensee's or the Licensee Parties' use of the Licensed Area. (b) Workers' compensation for Licensee's employees in the amount required by law. (c) Automobile liability insurance (covering both owned and non-owned vehicles, including those of the Licensee Parties) in an amount of not less than a single limit per occurrence of One Million Dollars($1,000,000)and Two Million Dollars($2,000,000)aggregate. (d) Any other form of insurance for risks and/or perils against which a prudent person would protect itself and as are customarily obtained by owners of similar operations in the State of California, including fire and casualty insurance, and/or increases in the amounts of coverage under any or all of the liability or other insurance policies carried by Licensee to the extent commercially reasonable and typically obtained by owners of similar operations. (e) As an express condition precedent to Licensee's use of the Licensed Area for anypurpose,pure , at least five (5) days prior to the Commencement Date, Licensee shall furnish to Owner properly executed certificates of insurance and endorsements to those policies as required herein, and copies of its policies of insurance. Such policies shall clearly evidence all coverage required of Licensee and hereunder shall have commercially reasonable deductibles and shall provide that such insurance shall not be materially changed,terminated or allowed to expire at any time during the Term. All policies obtained by Licensee must be primary and non-contributing with any policies that Owner may elect to obtain and must contain waiver of subrogation provisions acceptable to Owner. All policies required hereunder must be endorsed to name Owner and the Owner Parties as additional insureds and copies of those endorsements must be provided to Owner. All policies shall be issued by insurers qualified to do business in the State of California whose financial strength is acceptable to Owner in its reasonable discretion and shall be in a form reasonably satisfactory to Owner. (f) Licensee acknowledges that neither it nor any of the Licensee Parties will be subject to coverage under any policy of insurance that Owner may elect(in its sole and absolute discretion)to obtain. 9. Indemnification. (a) General Indemnification. Except to the extent attributable to Owner's sole gross negligence or willful misconduct, Owner shall not be liable to Licensee or Licensee Parties for any damage to Licensee or Licensee Parties(or to Licensee's or the Licensee Parties' property) from any cause whatsoever, including, without limitation, theft, mysterious disappearance, rodents, vermin and acts of God. Licensee and Licensee Parties shall jointly and severably 3 C1186-000-3782782.I indemnify, protect, defend and hold harmless the Property, Licensed Area, Owner or Owner Parties from and against any and all actual or alleged claims, and/or damages, liens,judgments, penalties, attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, a Licensee Default or the use and/or occupancy of the Licensed Area by Licensee or the Licensee Parties or any act or omission of Licensee or the Licensee Parties. If any action or proceeding is brought against Owner or Owner Parties by reason of any of the foregoing matters, Licensee shall, upon notice, defend the same at Licensee's sole expense by counsel reasonably satisfactory to Owner. The indemnification provided for in this Section shall survive the expiration or termination of the License granted herein as to matters occurring or accruing during the Term or by reason of Licensee's or the Licensee's Parties' occupancy or use of the Property. Compliance with Applicable Laws, Rules, and Regulations. Licensee represents, warrants,and agrees that it shall use and occupy the Licensed Area in compliance with all applicable laws, statutes,ordinances, rules, regulations, orders and requirements in effect during the Term, or any part of the Term hereof, which regulate use or occupancy by Licensee of the Licensed Area or the conduct of the Permitted Activities. Licensee represents, warrants, and agrees that it and the Licensee Parties shall use and occupy the Licensed Area in compliance with all applicable Environmental Laws (defined below). Licensee further warrants and agrees that it shall remediate and clean,to the extent required by Environmental Laws, applicable to its or the Licensee Parties' use of the Licensed Area, any spills or releases of Hazardous Substances (defined below), to the extent caused or contributed to by Licensee, or the Licensee Parties, or their respective agents, licensees, invitees, and successors and assigns' use or occupancy of the Licensed Area. (b) "Environmental Laws" shall mean all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability or standards of conduct concerning any Hazardous Substance(as hereinafter defined),or pertaining to occupational health or industrial hygiene(and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Licensed Area), occupational or environmental conditions on,under,or about the Licensed Area, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA") [42 U.S.C.A §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 ("RCRA") [42 U.S.C.A §§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act ("FWPCA") [33 U.S.C.A §§ 1251 et seq.]; the Toxic Substances Control Act ("TSCA") [15 U.S.C.A §§ 2601 et seq.]; the Federal Insecticide, Fungicide, Rodenticide Act [7 U.S.C.A §§ 136 et seq.]; the Superfund Amendments and Reauthorization Act [42 U.S.C.A §§ 9601 et seq.];the Clean Air Act [42 U.S.C.A §§ 7401 et seq.];the Safe Drinking Water Act [42 U.S.C.A§§ 300f et seq.];the Solid Waste Disposal Act [42 U.S.C.A §§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 U.S.C.A §§ 1201 et seq.]; the Emergency Planning and Community Right-to-Know Act [42 U.S.C.A $§ 11001 et seq.]; the Occupational Safety and Health Act [29 U.S.C.A §§ 655 and 657]; the California Underground Storage of Hazardous Substances Act [Health & Saf. Code §§ 25280 et seq.]; the California Hazardous Substances Account Act [Health & Saf. Code 44 25300 et seq.]; the California Hazardous Waste Control Act [Health & Saf. Code §§ 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [Health & Saf. Code 44 25249.5 et 4 C1186-000-3782782.1 seq.]; the Porter-Cologne Water Quality Act [Wat. Code §§ 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to Hazardous Substances on, under, or about the Licensed Area,or the regulation or protection of the environment,including ambient air, soil, soil vapor, groundwater, surface water, or land use. (c) "Hazardous Substances" shall mean and include (a)those substances included within the definitions of "hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminant" in CERCLA, RCRA, TSCA, or under any other Environmental Law; (b)those substances listed in the United States Department of Transportation (DOT) Table [49 C.F.R. 172.101], or by the Environmental Protection Agency(EPA), or any successor agency,as hazardous substances [40 C.F.R. Part 302]; (c) other substances, materials, and wastes that are or become regulated or classified as hazardous or toxic under federal, state, or local laws or regulations; and(d) any material,waste, or substance that is (i) a petroleum or refined petroleum product, (ii) asbestos, (iii)polychlorinated biphenyl, (iv) designated as a hazardous substance pursuant to 33 U.S.C.A § 1321 or listed pursuant to 33 U.S.C.A § 1317, (v) a flammable explosive, or(vi) a radioactive material. 10. Events of Default; Termination. The material breach of any provision of this Agreement shall constitute a default and material breach of this Agreement by Licensee ("Default"). In the event of a Default by Licensee, Owner (in addition to any other remedies available at law or in equity), at its option, and without further notice to Licensee, shall have the right to (i) terminate the License and all rights of Licensee in or to the Property; (ii) take full possession of the Property; and (iii) remove all of Licensee's equipment, facilities and other personal property from Owner's Property and either deliver the same at Licensee's cost or place it in storage for Licensee's account and give Licensee notice of the location of the same. In such event, neither party shall have any further rights or obligations hereunder. 11. Non-Assignment. This Agreement shall not be assigned or otherwise transferred by Licensee, nor may any portion of the Property sublicensed by Licensee,without Owner's prior written approval,which Owner may withhold in its sole and absolute discretion. 12. Notices. All notices and other communications required or permitted to be given hereunder shall be in writing and shall be sent by: (a) certified or registered mail,postage prepaid, return receipt requested, (b)personal delivery, or (c) a recognized overnight carrier that provides proof of delivery, and shall be addressed as follows: If to Owner: If to Licensee: City of Cathedral City Museum of Ancient Wonders Attn: City Manager Attn: Alberto Acosta 68-700 Avenida Lalo Guerrero 69-028-B East Palm Canyon Drive Cathedral City, CA 92234 Cathedral City, CA 92234 Notices shall be deemed effective upon receipt or rejection only. 5 C1186-000--3782782.1 13. No Recordation. This Agreement may not be recorded. 14. Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be invalid, illegal, or unenforceable, then such portion shall be deemed severed from this Agreement and the parties shall negotiate in good faith to modify this Agreement to fulfill as closely as possible the original intent and purpose of this Agreement. 15. Entire Agreement; Amendment. This Agreement contains the entire agreement between the parties with respect to the subject matter herein and supersedes any and all prior or contemporaneous negotiations,correspondence,or oral or written agreements between the parties. No supplement,amendment,or modification of any provision of this Agreement shall be effective unless it is in writing and executed by both parties. 16. Counterparts. This Agreement may be signed in multiple counterparts, each of which shall be deemed an original, but all of which, taken together, shall constitute one and the same Agreement. 17. Governing Law. This Agreement shall be governed by and construed in accordance with the procedural and substantive laws of the State of California, without regard to its conflicts of laws principles. 18. Attorneys' Fees. In the event of a suit by either party against the other arising out of this Agreement, the prevailing party shall be entitled to recover from the other party all reasonable costs and expenses of suit,including attorneys' fees and the fees of other professionals. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. "OWNER": "LICENSEE": CITY OF CATHEDRAL CITY, a California MUSEUM OF ANCIENT WONDERS, a munici orporatio AffrCalifornia 1(c))(3)Non Profit Organization ast) BTirBy: a., ` •��L Name:`,V t✓ie5 p 1.di cctUl Ad() Name: 4 r EU / . Its: C,7 P\Cili�c,riw' Its: • '4?WINO r eel'l'b6IU 6 C1186-000-3782782.1 EXHIBIT "A" DESCRIPTION OF PROPERTY APN 687-196-002, 003, 004, 005, 006, 007, and 008 as identified in Parcel Map Book 687 at Page 19: ` +.w 44•1,444.140 1;wwrvr*.411,1.1•a••,••I, W 1!2 E 1/2 SEC 33 T45 R.SE AM11!! 687-19 •• cm of urndllu cm Mal Clio' a1.w>..' -•w ts• . h.a1 4,S02, '.G t •,.a. Cans 116,r .in.vIr7 MO. OurPRI 31114 OM lt •,t• W 1•.r ' ✓r moo, P •.,Ue r111 rr "1r. I '• 'MUM .111/ntf a,r. I8? ' 31.1110 IMP 811, 1'.lie• i r• r1 1Y" 111 ,. PPM lilt ,. 1 INC400004, Ni.s - ••i .�-rr� .I 1�/ i�f /,r . (�w 1 . ".*7 "Y1� �1G1. M►M -Mm. / 1 ' '^•. �� ` /3l�j over s.1 a r il. I y w w " w r 1 " % Y •,,1w/ •OY� GOOa. 1, •••••.•••• s_ 1 " �`1,�*r co over M nn 33 COVE r1..". for r LANE• '� ,&, x Q 1•d� •. r• t m. 1"M 11�l n 1t. OltT. y W 1 Ur ur •1 OS a. t ' M y men I GROVE "ori r Oh r�•r„k �__ w�_ Y . r a e E • •1 1j • ';• 1 I �r� g."it ... 1� r 1Y M a ® 1 1 1 • I mg I" rr ri" r " rQ MI '�i " .. u c. r N� `i ~ �•I le v I 1 sii �` -EV _ • ,_ �� YA IP 4r -. STREET • - J Cl 186-000-3782782.1 ® DATE(MMIDD/YYYI� A�o CERTIFICATE OF LIABILITY INSURANCE 11/04/2021 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND,EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S),AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(ies)must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Sanae Martin NAME: Desert Cornerstone Insurance Service,Inc. (AHONNo,Ext): (760)347-7723 ja/c,No): (760)347-7725 CA License#OF15709 E-MAIL sanae@desertcornerstoneins.com ADDRESS: 81713 Hwy 111, Ste E INSURER(S)AFFORDING COVERAGE NAIC# Indio CA 92201 INSURER A: United States Liability Ins. 25895 INSUREDINSURER B: Employers Preferred Insurance Co. 10346 Museum of Ancient Wonders INSURER C: 301 N.Palm Canyon Drive,#301-214 INSURER D: INSURER E: Palm Springs CA 92262 INSURER F: COVERAGES CERTIFICATE NUMBER: 2021GLVVC REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE AUULSUBR POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR INSD WVDIMM/DD/YYYY) (MM/DD/YYYY) X COMMERCIAL GENERAL LIABIUTY EACH OCCURRENCE $ 1,000,000 DAMAGE 10 RENTED 100,000 CLAIMS-MADE X OCCUR PREMISES(Ea occurrence) $ __ MED EXP(Any one person) $ 5,000 - A NPP1591153B 09/03/2021 09/03/2022 PERSONAL&ADV INJURY $ 1,000'000 GEN'LAGGREGATE LIMITAPPLIES PER: GENERAL AGGREGATE $ 2,000,000 X POLICY n PRO E LOC PRODUCTS-COMP/OPAGG $ Included JECT OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ (Ea accident) _ ANY AUTO BODILY INJURY(Per person) $ OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS HIRED NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY _ AUTOS ONLY (Per accident) - UMBRELLA UAB OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION$ $ WORKERS COMPENSATION X STATUTE • OTH- ER AND EMPLOYERS'LIABIUTY Y/N 1,000,000 B ANY PROPRIETOR/PARTNER/EXECUTIVE n OFFICER/MEMBER EXCLUDED? N/A EIG484159800 09/03/2021 09/03/2022 E.L.EACH ACCIDENT $ (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE $ 1,000,000 If yes,describe under 1 000 000 DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $ , , DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached if mom space is required) Certificate issued as Evidence of Insurance CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF,NOTICE WILL BE DELIVERED IN City of Cathedral City ACCORDANCE WITH THE POLICY PROVISIONS. 68700 Avenida Lab Guerrero AUTHORIZED REPRESENTATIVE 1/�j Cathedral City CA 92234 /G � - / I ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD