HomeMy WebLinkAboutResolution 2023-190 N.C.S. 12/18/2023 DocuSign Envelope ID: 1CF6ECO2-87F4-4494-B893-633AOA19EDC0
Resolution No. 2023-190 N.C.S.
of the City of Petaluma, California
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PETALUMA APPROVING AND
AUTHORIZING THE CITY MANAGER TO EXECUTE ON BEHALF OF THE CITY LICENSE
AGREEMENTS WITH EACH OF THE NINE TENANTS LOCATED ON THE CITY-OWNED
FAIRGROUNDS PROPERTY, PROVIDING FOR THE LICENSE AGREEMENTS BECOMING
EFFECTIVE WHEN THE 4TH DISTRICT AGRICULTURAL ASSOCIATION LEASE TO THE
FAIRGROUNDS PROPERTY EXPIRES ON DECEMBER 31, 2023,AND MAKING FINDINGS THAT
THIS ACTION IS EXEMPT FROM THE REQUIREMENTS OF THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT
WHEREAS, the City Council recognizes the importance of effective management and maximized utility of
the City-owned fairgrounds property for the community's benefit; and
WHEREAS,City staff have been working diligently with the 4th District Agricultural Association(DAA)to
transition the management of the City-owned fairgrounds property to the City after the DAA lease to the
fairgrounds property expires on December 31, 2023; and
WHEREAS, the City Council has adopted guiding principles to direct the transition of fairgrounds property
management from the DAA to the City, and these principles prioritize community involvement, strong
partnerships, the annual fair, and other uses desired by the community to increase public benefit from and access
to the City's fairgrounds property; and
WHEREAS, the State of California 4ch District Association (DAA) agrees to produce the annual Sonoma-
Marin Fair which is a 5-day event held in June of each year; and
WHEREAS, the DAA wishes to use office space, maintenance buildings, and yard space year round to
support the staffing and equipment needed to produce the annual event; and
WHEREAS, the City agrees to expand the DAA's use of the property to a larger footprint to accommodate
the annual fair; and
WHEREAS, adoption of this resolution approving and authorizing the City Manager to execute on behalf of
the City license agreements with each of the nine tenants located on the City-owned fairgrounds property is
categorically exempt from the requirements of the California Environmental Quality Act("CEQA")in accordance
with Section 15301 of the CEQA Guidelines (Existing Facilities) as the license agreements merely extend the
duration of the existing uses without altering or expanding the uses, and is exempt from CEQA requirements
pursuant to CEQA Guidelines Sections 15304(Minor Alterations to Land)and 15305 (Minor Alterations in Land
Use Limitations) as the license agreements extend existing uses on improved property, do not change land uses
or density, will have negligible or no permanent effects on the environment, and will not result in the removal of
trees.
Resolution No. 2023-190 N.C.S. Page 1
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NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Petaluma as follows:
1. The above recitals are hereby declared to be true and correct and are incorporated herein as findings of the
City Council.
2. Adoption of this resolution approving and authorizing the City Manager to execute on behalf of the City
license agreements with each of the nine tenants located on the City-owned fairgrounds property is
categorically exempt from the requirements of the California Environmental Quality Act ("CEQA") in
accordance with Section 15301 of the CEQA Guidelines(Existing Facilities)as the license agreements merely
extend the duration of the existing uses without altering or expanding the uses. Additionally, adoption of this
resolution is exempt from CEQA requirements pursuant to CEQA Guidelines Sections 15304 (Minor
Alterations to Land)and 15305 (Minor Alterations in Land Use Limitations) as the license agreements extend
existing uses on improved property, do not change land uses or density,will have negligible or no permanent
effects on the environment, and will not result in the removal of trees.
3. The attached, non-exclusive license agreement (Exhibit A), is hereby approved, and the City Manager is
hereby authorized and directed to enter into the license agreement with the State of California 4th Agricultural
District on terms substantially in accordance with the license agreement template in Exhibit A, for use of the
portion(s) of the fairgrounds property indicated in the site map in Exhibit B, for uses described in Exhibit C
to take effect following execution by an authorized representative of the tenant and the City Manager on
January 1, 2024.
4. The City Manager is hereby authorized and directed to approve such changes to the license agreement
template in Exhibit A and to specify such permitted licensed uses for each licensee that the City Manager
determines with the City Attorney's concurrence are reasonably necessary to implement the license agreement
approved pursuant to this resolution and consistent with its purposes.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the Approved as to
Council of the City of Petaluma at a Regular meeting on the 18'day of December form:
Docu Signed by:
2023,by the following vote: F�n
tty ttoifney
AYES: McDonnell,Barnacle,Cader Thompson,Healy,Pocekay,Shribbs
NOES: None
ABSENT: None
RECUSED: Nau
DocuSigned by: DocuSigned by:
Xa'i�� r1Rl9&
ATTEST:
City Clerk Mayor
Resolution No. 2023-190 N.C.S. Page 2
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EXHIBIT A
NON-EXCLUSIVE SITE LICENSE AGREEMENT BETWEEN THE CITY OF PETALUMA AND
THE FOURTH DISTRICT AGRICULTURAL ASSOCIATION CONCERNING A PORTION OF THE
CITY OF PETALUMA FAIRGROUNDS PROPERTY LOCATED AT 175 FAIRGROUNDS DRIVE IN
PETALUMA
This non-exclusive site license agreement ("Agreement") is made this day of ,
2023, by and between the City of Petaluma, a California municipal corporation and charter city("City"), with
its principal place of business located at 11 English Street, Petaluma, California, 94952, and the Fourth District
Agricultural Association ("Licensee"), a District Agricultural Association formed pursuant to Division 3 of the
Food and Agriculture Code, with its principal place of business located at_175 Fairgrounds Drive, Petaluma, CA
94952.
Background
A. The City owns the real property known as the Petaluma Fairgrounds located at 175 Fairgrounds Drive,
Petaluma, California 94952, A.P.N.s ("Fairgrounds").
B. The City's Fairgrounds property has been under exclusive lease to the Fourth District Agricultural
Association for the previous 50 years, and the current lease term will expire December 31, 2023. The City
is preparing to master plan the Fairgrounds property to preserve the fair use and maximize the public uses
on and access to the Fairgrounds for the benefit of the entire Petaluma community once the City assumes
the management of the Fairgrounds on January 1, 2024. During the term of the 41h District Agricultural
Association lease, Licensee has maintained exclusive control off the Fairgrounds property. The City intends
to maintain the current uses on the Fairgrounds while a master plan is prepared to provide stability for the
current Fairgrounds tenants during the master plan process.
C. Accordingly, the City desires to grant, and Licensee desires to obtain, the non-exclusive right to use a
portion of the Fairgrounds property for specified permitted uses for the duration and subject to the terms
and conditions specified in this Agreement.
In consideration of the promises and mutual covenants contained in this Agreement, the parties agree as
follows:
1. Licensed Premises. The portions of the Fairgrounds that are licensed to the Licensee pursuant to this
Agreement are referred to as the Licensed Premises, and are depicted and described in Exhibit A and A-1,
which is hereby made a part of this Agreement. I
2. Grant of License. City grants to Licensee a non-exclusive, revocable license ("License")to enter
upon and use the portions of the City's Fairgrounds property depicted and described in Exhibit A ("Licensed
Premises"), for the uses described in Section 6,below, and Exhibit B. The City expressly reserves to the City
for itself and other potential licensees all uses of the Licensed Premises that do not unreasonably conflict with
the uses licensed pursuant to this Agreement.
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3. License Amendments. The City's primary objective in assuming management and control of its
Fairgrounds property is maximizing the benefits to the Petaluma Community and the public uses on and access
to the City's Fairgrounds property. To achieve this objective, and while the City maintains current uses on its
Fairgrounds property and master plans future fair and other Fairgrounds uses, adjustments may be necessary to
the licenses granted to Fairgrounds users. During the Term, it may be necessary to make reasonable
amendments to this Agreement, including the Licensed Premises, the Licensed Uses and/or other terms and
conditions of this Agreement while maintaining Licensee's operations. The City will endeavor to ensure that
City-proposed amendments to this Agreement result in Licensee's rights remaining reasonably equivalent to
those granted on the Commencement Date of this Agreement, and are implemented so as to minimize cost or
operational impacts on the Licensee, and/or include appropriate adjustments to the License Fee or other terms
and conditions in view of cost or operational impacts on the Licensee, or are otherwise reasonably acceptable to
the Licensee. The Licensee agrees to enter into amendments of this Agreement with the City reasonably
acceptable to the City and Licensee to affect such City-proposed amendments. During the Term, the Licensee
may also propose reasonable amendments to the terms and conditions of this Agreement, and the City may in its
discretion enter amendments proposed by Licensee to this Agreement that are consistent with the City's
objectives for the Fairgrounds property uses.
4. Term. The term of this Agreement shall commence on January 1, 2024 ("Commencement Date")
and continue through December 31, 2026 ("Expiration Date"),unless earlier terminated in accordance with
Section 11. The City and the Licensee may by mutual agreement amend this Agreement in accordance with
Section 24 to extend the Term by no more than two, additional one-year extensions, extending the Expiration
Date up to but not exceeding December 31, 2028.
5. No Grant of Property Interest or Creation of Irrevocable License. The rights granted under this
Agreement are solely license rights. The License granted under this Agreement is personal to Licensee, non-
transferable and non-assignable (except as otherwise specified in Section 12,below), and terminable by
agreement of the City and Licensee and terminable and revocable by the City in accordance Section 11 of this
Agreement. This Agreement conveys no real property interest or estate in the Licensed Premises, and nothing
in this Agreement creates or may be construed to create property interests or estates, such as lease or easement
rights, nor may any conduct of the City or the Licensee create or be construed to create such property interests
or estates, or to create a license coupled with an interest or an irrevocable license, and the Licensee hereby
waives, releases and disclaims on behalf of the Licensee and any successors and assigns of the Licensee any
such interest in the Licensed Premises.
6. Licensed Uses. While this Agreement is in effect, Licensee shall have the non-exclusive right to use
Licensed Premises, solely and exclusively for the purposes described in Exhibit B and Exhibit B-1,
("Licensed Uses). Exhibit B is hereby made a part of this Agreement. Upon a proposal from the City in
accordance with Section 3 or on request from the Licensee, the City and Licensee may agree to amend the
Licensed Uses in accordance with Section 24 of this Agreement. Amendments to the Licensed Uses in
accordance with this section may require and include other amendments to this Agreement, including, but not
limited to, amendments to the Licensed Premises pursuant to Exhibit A, the License Fee pursuant to Section 8,
the Insurance Requirements in accordance with Section 20 and Exhibit C and/or other amendments.
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7. Limitations on Licensed Uses. Licensee may not use, and shall prohibit any of its agents or
representatives from using, the Licensed Premises for uses other than the Licensed Uses as specified in Section
6 and Exhibit B. In addition, the following limitations apply to the Licensed Uses:
a. Installation,Alteration. Except as otherwise expressly provided in Exhibit B, Licensee may not
construct or install any structures, signs or improvements on the Licensed Premises, or alter any existing
structures, signs or improvements on the Licensed Premises, or modify the Licensed Premises in any manner,
including but not limited to, grading, excavating or paving, without the prior written consent of an authorized
representative of the City, and if necessary, execution of an amendment to this Agreement by authorized
representatives of the City and the Licensee in accordance with Section 24.
b. Damage,Waste,Nuisance. Licensee may not damage the Licensed Premises or commit or
permit waste or creation of nuisance conditions on the Licensed Premises.
c. Hazardous Material. Except as otherwise expressly provided in Exhibit B, Licensed Uses, and
subject to all applicable requirements and safeguards in Exhibit B and applicable law, Licensee may not permit
any hazardous material including, but not limited to, any material defined as a"hazardous substance, pollutant
or contaminant"pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended(42 U.S.C. Sections 9601 et seq.); or pursuant to Section 25316 of the California Health and
Safety Code; "hazardous waste"pursuant to Section 25140 of the California Health and Safety Code; asbestos
and asbestos containing materials; and petroleum, including,without limitation, crude oil or any fraction
thereof, natural gas, or natural gas liquids, to be brought upon, kept,used, stored, released, generated or
disposed of in, or about the Licensed Premises or transported to or from the Licensed Premises. Licensee shall
immediately notify the City of any release or suspected release of hazardous material on or from the Licensed
Premises, comply with all laws requiring notice of such release or threatened releases to governmental agencies,
and take all action necessary to mitigate the release or minimize the spread of contamination. Licensee shall, at
Licensee's sole cost and expense and without cost to the City, and in accordance with all laws and regulations,
return the Licensed Premises to the condition immediately prior to the release of any hazardous material in
violation of this provision.
d. Accommodations of Other Uses. While maintaining the current uses on the City's Fairgrounds
property, including the fair use, and master planning the property for maximum future public benefit, the City
intends to coordinate with the Licensee and current users of the Fairgrounds to minimize conflicts among
Fairgrounds uses. Despite the City's efforts to avoid conflicts, it may be necessary for the Licensee to
accommodate other Fairgrounds users to minimize conflicts. The City and Licensee will explore the potential
for avoiding the need for the Licensee's operations to accommodate the other Fairgrounds uses, and to the
extent Licensee's accommodation of the other Fairgrounds uses may be necessary, the required
accommodations will be as described in Exhibit B.
8. License Fee. The License Fee that the Licensee shall pay the City in consideration of the License
granted under this Agreement shall be $1, payable beginning on the Effective Date and monthly on the first of
each month thereafter during the Term. Payments must be made payable to the City of Petaluma and be
delivered to the City at the address specified in Section 21 of this Agreement.
9. No Warranties. The Licensee understands that as the City assumes management and control of its
Fairgrounds property following the expiration of the 4th District Agricultural Association Lease, there are
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needed improvements and deferred maintenance conditions on the Fairgrounds, including the Licensed
Premises. Accordingly, the City expressly disclaims any warranty of fitness of the Licensed Premises for the
Licensee's intended use, and expressly disclaims any warranty of merchantability. Licensee acknowledges that
Licensee has had ample opportunity to view, inspect and use the Licensed Premises, and has performed such
inspection as Licensee deems necessary, such that Licensee accepts the Licensed Premises in an as-is condition,
with all faults including security, and without any warranty whatsoever, express, or implied. The Licensee is
also hereby given notice that the lease between the City and the 4th District Agricultural Association that is
expiring December 31, 2023,provides that any improvements that the Association constructed on the
Fairgrounds during the term of the lease are the property of the Association, and may be removed by the
Association during lease term and the six months immediately following expiration of the lease. As of the
Commencement Date, the City is aware of no plans of the Association to remove any improvements on the
Fairgrounds.
10. Maintenance of Licensed Premises. Licensee will keep the Licensed Premises the Licensee uses
for the Licensed Uses in as good condition as existed on the Commencement Date of the License Term, normal
wear and tear and use by others excepted, and keep the Licensed Premises safe for use by Licensee, its invitees,
the City, and its officials, officers, employees, agents, invitees, and by members of the public using the
Licensed Premises. Licensee will repair to the reasonable satisfaction of the City any damage to the Licensed
Premises resulting from Licensee's use of the Licensed Premises. Upon expiration or termination of this
Agreement, Licensee will surrender the Licensed Premises in as good a condition as existed on the
Commencement Date of the License Term, normal wear and tear use by other licensees and others excepted.
11. Termination. This Agreement may be terminated as follows:
a. Termination by Agreement. The City and Licensee may terminate this Agreement by mutual
agreement.
b. Termination for Cause. Either party may give written notice to the other party of termination
of this Agreement for cause specifying the other party's failure(s)to comply with this Agreement giving rise to
the notice of termination and the effective date of termination. The party giving notice of termination will allow
the other party a reasonable period of at least 30 days or more, specified in the notice, in which to cure that
party's failure to comply with this Agreement. However, if the City reasonably determines that Licensee's
failure to comply with this Agreement is resulting in or will result in a serious threat to public safety or
property, the City may give Licensee notice to suspend licensee's operations on the Licensed Premises, and/or
to correct the Licensee's noncompliance immediately, without allowing a period to cure, and if Licensee's
operations are not suspended or Licensee's noncompliance is not corrected in accordance with and by the time
specified in the City's notice, then the City may terminate this Agreement in accordance with its notice.
12. No Unauthorized Assignment, Sublicensing or Delegation. The Licensee may not assign or
sublicense Licensee's rights under this Agreement or delegate any of Licensee's obligations under this
Agreement without the prior written consent of an authorized representative of the City, and if necessary,
execution of an amendment to this Agreement by authorized representatives of the City and the Licensee in
accordance with Section 24. Any purported assignment, sublicense, or delegation of Licensee's rights or
obligations under this Agreement without the prior written consent of the City will be void, and the City may
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treat such purported assignment, sublicense or delegation as cause for terminating this Agreement in accordance
with Section I I(b).
13. Renovation or Alteration of Licensed Premises. Licensee may seek and City may grant approval
to alter or renovate the Licensed Premises. Any approved alteration or renovation of the Licensed Premises will
be subject to all applicable laws and regulations, and will be made at Licensee's sole expense, unless the parties
agree otherwise in writing. Except as otherwise expressly provided in Exhibit B, Licensee may not make any
alterations, install any fixtures, or make any additions, renovations, or improvements to the Licensed Premises
except for temporary fencing or other similar temporary security measures or other uses in or around the
Licensed Premises in accordance with the Licensed Uses specified in Exhibit B, without the prior written
consent of the City.
14. Surrender and Repair of Damage. Within 14 days of termination or expiration of this Agreement,
or a later time on which authorized representatives of the City and the Licensee have agreed, Licensee shall
surrender the Licensed Premises in as good condition as existed on the Commencement Date, normal wear and
tear and use by others excepted, free from hazards and clear of all debris and of all personal property of
Licensee. Licensee shall promptly, at its sole cost, repair any and all damage to the Licensed Premises and any
personal property located thereon resulting from the Licensed Uses. Licensee shall obtain the City's prior
approval for any such repair work. If the Licensed Premises or any personal property are damaged as a result of
the Licensed Uses, and the Licensee fails to repair the damage in accordance with this section, the final repair
costs owed by Licensee shall be determined by the City and shall be paid by Licensee within 30 days of City's
demand. Licensee's obligations under this section shall survive the expiration or termination of this Agreement.
15. Right of Entry. City and its authorized representatives will have the right to enter the Licensed
Premises at all reasonable times, on reasonable notice to the Licensee, to inspect the Licensed Premises and
Licensee's operations to ensure compliance with this Agreement and provide for public safety on the City's
Fairgrounds property.
16. Nondiscrimination. Licensee agrees for itself and all persons claiming under or through Licensee
that this License is granted and accepted subject to the requirement that there may be no discrimination against
or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual
preference, orientation, or identity, marital status, disability, national origin or ancestry in the use of the
Licensed Premises, nor shall Licensee or any person claiming under or through Licensee, establish or permit
any such practice or practices of discrimination or segregation regarding the Licensed Uses on the Licensed
Premises.
17. Government Regulations. The License must comply with all statutes, ordinances, and regulations
applicable to the Licensee's use of the Licensed Premises pursuant to this Agreement.
18. Indemnification. To the maximum extent permitted by law, Licensee shall, at its own expense,
indemnify, defend with counsel acceptable to the City, (which acceptance will not be unreasonably withheld),
and hold harmless City and its officers, officials, employees, agents and volunteers ("Indemnitees") from and
against any and all liability, loss, damage, claims, suits, actions, arbitration proceedings, administrative
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proceedings, regulatory proceedings, civil penalties and fines, expenses and costs (including, without limitation,
claims expenses, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature,
whether actual, alleged or threatened, arising out of or in connection with Licensee's use of the Licensed
Premises or Licensee's failure to comply with any of the terms of this Agreement, regardless of any fault or
alleged fault of the Indemnitees. Licensee's obligation to indemnify, defend and hold harmless under this
provision shall not be excused because of Licensee's inability to evaluate Liability, or because Licensee
evaluates Liability and determines that Licensee is not or may not be liable. Licensee must respond within 30
calendar days to any tender of defense and indemnity by the City unless the time for responding has been
extended by an authorized representative of the City in writing. In the event that the City must file responsive
documents in a matter tendered to Licensee prior to Licensee's acceptance of tender, Licensee agrees to fully
reimburse all costs, including but not limited to attorney's fees and costs and fees of litigation, incurred by the
City in filing such responsive documents.
Licensee waives any and all rights to express or implied indemnity against the Indemnitees concerning
any Liability of Licensee arising out of or in connection with Licensee's use of the Licensed Premises or
Licensee's failure to comply with any of the terms of this Agreement.
Notwithstanding the foregoing, to the extent this Agreement is a"construction contract" as defined by
California Civil Code Section 2783, as may be amended from time to time, Licensee's duty to indemnify under
this provision shall not apply when prohibited by California Civil Code Section 2782, as may be amended from
time to time.
Notwithstanding the foregoing, to the extent that Licensee's use of the Licensed Premises includes
design professional services subject to California Civil Code Section 2782.8, as may be amended from time to
time, Licensee's duty to indemnify shall only be to the maximum extent permitted by California Civil Code
Section 2782.8.
19. Waiver of Claims. In view of the needed improvements and deferred maintenance conditions on the
Fairgrounds, including the Licensed Premises, following the expiration of the 4th District Agricultural
Association Lease, the City and Licensee agree that neither City nor any of its Indemnitees shall be liable for
any damage to the property of the Licensee, or any bodily injury to Licensee or its employees, agents, or
invitees, or for any other loss, resulting from the condition or security of the Licensed Premises. To the
maximum extent permitted by law, Licensee fully releases, waives, and discharges forever any claims,
demands, rights, and causes of action against, and covenants not to sue, City or Indemnitees for any claim or
event relating to the condition or security of the Licensed Premises or Licensee's use thereof, including in the
event City exercises its right to suspend, revoke, or terminate this Agreement.
20. Insurance. Licensee shall procure and maintain in effect throughout the Term insurance in
accordance with this provision, and Exhibit C which is attached to and made a part of this Agreement. Exhibit
C sets forth the minimum kinds and amounts of insurance that Licensee must maintain pursuant to this
Agreement, as well as required endorsements and other requirements.
21. Notices. Notice pursuant to this Agreement will be given as follows:
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City: City Manager and Assistant City Manager
City of Petaluma
11 English Street
Petaluma, CA 94952
Licensee: Fourth District Agricultural Association
175 Fairgrounds Drive
Petaluma, CA 94952
22. Statutory Notice Regarding Possessory Interest Tax. Licensee is advised that under California
Revenue and Taxation Code Section 107.6, execution of this Agreement may create a possessory interest in
Licensee subject to property taxation. Licensee hereby agrees that if such possessory interest is created and
such interest is subject to property taxation, Licensee will be solely responsible for the payment of said property
taxes levied on any such interest.
23. Attorneys Fees. If either party brings legal action arising out of this Agreement, the prevailing party
in that action will be entitled to recover in addition to that party's court costs reasonable attorneys fees to be
fixed by the court.
24.Amendment. This Agreement may be amended only by a written instrument executed by authorized
representatives of each party.
25. Construction. This Agreement is the product of negotiation and compromise on the part of both
parties and the parties agree that, notwithstanding Civil Code Section 1654, any uncertainty in the Agreement
shall not be construed against the drafter of the Agreement.
26. Governing Law and Venue. This Agreement shall be enforced and interpreted under the laws of the
State of California and the City of Petaluma. Any action arising from or brought in connection with this
Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California.
27. Non-Waiver. The failure to enforce any provision of this Agreement or the waiver thereof in a
particular instance shall not be construed as a general waiver of any part of such provision, and the provision
shall remain in full force and effect.
28. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in
full force and effect.
29. No Third-Party Beneficiaries. The parties do not intend to create, and nothing in this Agreement
shall be construed to create any benefit or right in any third party.
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30. No Joint Venture. The relationship of the parties is solely that of licensor and licensee, and no joint
venture or other partnership exists or is created between the parties. Neither party assumes any fiduciary
relationship hereunder to the other.
31. Headings. The headings used in this Agreement are for convenience only and are not intended to
affect the interpretation or construction of any provisions herein.
32. Survival. All obligations arising prior to the expiration or termination of this Agreement and all
provisions of this Agreement allocating liability between City and Licensee, including,without limitation,
Licensee's obligations under Section 18, shall survive the expiration or termination of this Agreement.
33. Entire Agreement. This Agreement, including all exhibits, constitutes the entire agreement
between the parties and supersedes all prior agreements or understandings, oral or written, between the parties
concerning the subject matter of this Agreement.
IN WITNESS WHEREOF,the parties have executed this Agreement as of the day and year first above
written.
CITY OF PETALUMA LICENSEE
Peggy Flynn, City Manager , of
Date Date
ATTEST: APPROVED AS TO FORM:
Kami Noriega, Deputy City Clerk
APPROVED AS TO FORM:
Eric Danly, City Attorney
List of Exhibits
Exhibit A—Licensed Premises
Exhibit A-1 —Licensed Premises—Fair Time
Exhibit B—Licensed Uses
Exhibit 13-1 —Licensed Uses—Fair Time
Exhibit C - Insurance Requirements
Resolution No. 2023-190 N.C.S. Page 10
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Resolution No. 2023-190 N.C.S. Page 11
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Exhibit B
Licensed Uses
As noted in the recitals of this Agreement, the City's Fairgrounds property has been leased exclusively and
entirely to the Licensee for at least the past 50 years, and the lease will expire December 31, 2023. The City
will assume management and control of the Fairgrounds on Januaryl, 2024. While the City prepares to master
plan the Fairgrounds property to preserve the fair use and maximize public uses on and access to the property
for the benefit of the entire community, the City intends to maintain the current uses on the property, including
the fair and other uses on the property. This Agreement will provide for continued use of part of the
Fairgrounds property for hosting the annual fair, and more limited use of the Fairgrounds for Licensee
administrative functions during non-Fair time. Separate agreements will provide for continued use of the
Fairgrounds property by tenants.
Licensed Use and Licensed Premises Location Table During Fair time and non-Fair time*
Fair Time (June 1 —July 1) Non-fair Time (year round)
Administration Bldg & Permitted Permitted
Parking Lot
Maintenance Bldg and Permitted Permitted
Yard
Parking Lot B Permitted Not Permitted
Carnival Lot Permitted Not Permitted
BCW Rental Space Permitted Not Permitted
Community Bldg Permitted Not Permitted
Playland lot & horse arena Permitted Not Permitted
Play Dog Play RV Lot Permitted Not Permitted
Animal Barns & Rental Permitted Not Permitted
Spaces
Herzog Hall Permitted Not Permitted
Live Oak Classrooms Permitted Not Permitted
Main Parking Lot Permitted Not Permitted
Licensed uses of the Licensed Premises during the annual Fair time are described further in Exhibit B-1, and in
the City-approved Fair Map and Implementation Plan.
Administrative Uses
Licensee may occupy the administration building for the purposes of housing Licensee staff and administrative
functions for the Fair and for Licensee generally during non-Fair time. Licensee may also utilize the
administration building for Licensee administrative functions such as meeting with members of the public and
others and hosting Licensee board meetings. The Licensee will also have access to and the non-exclusive right
to use the parking lot in front of the administration building for these administrative uses.
Exhibit B-1
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Licensed Uses —Fair Time
The City of Petaluma has a long history of celebrating its agricultural heritage and the community
looks forward to celebrating its agricultural past and present while looking towards its agricultural
future. To continue this tradition, the Petaluma community has supported, and the City Council
has directed that City continue to offer an annual fair on the City's Fairgrounds. This Agreement
provides for the Licensee's right to use the City Fairgrounds property to prepare and set up for,
host, and restore and clean up the affected parts of the Fairgrounds property for a 5-day Fair event
that reflects the community's agricultural past,present, and future. The Fair has traditionally been
hosted during the 3rd or 4th week of June for five days (from Wednesday through Sunday).
However, the dates and duration of the fair are subject to amendment in accordance with the
approved Fair Map and Implementation Plan. The duration of the Licensee's access to the
Licensed Premises in accordance with this Agreement for preparing for, offering, and restoring
the site after the Fair will generally extend from June 1 to July 15.
The Fair event generally comprises:
• A carnival with rides
• Concessions that include food and beverages
• Dedicated spaces for alcohol service to be specified in the Implementation Plan that is
reviewed and approved by the City.
• Live music entertainment each evening
• Non-music entertainment such as animal tricks & contests, a hypnotist, and other
entertainment shows such as shows about cooking or milking etc.
• Agriculture and animal shows, events, and attractions
• VIP and sponsor gatherings
• Exhibits of community arts and crafts including food, quilts, flowers, metal crafts,
photography and other art that has been judged and ranked
• Vendors and concessions such as specialty products, art, appliances, and other items
that are sold at the fair
• Nonprofit and educational exhibits
The portions of the Fairgrounds property where the Fair events will occur and that make up the
Licensed Premises as described in Exhibit A and include the Carnival Lot, the Milk Barn, the
Concourse, the Main Exhibit Hall, the Junior Exhibit Hall, the Stage and Behren's Park, Beverly
C. Wilson Hall, the Wine Garden, and all the useable (not red-tagged) Animal Barns. Although
one of the animal barns is used by the year-round tenant Playland as a laser tag facility under a
separate agreement with the City, that barn will be vacated by that tenant and available to the
Licensee for the Fair as part of the Licensed Premises.
Offering the Fair also includes non-public facing activities occurring on the Licensed Premises.
These activities include administration, security, and first aid, and may occur on the Licensed
Premises either in the administration space or in temporary buildings to be brought onto the
Resolution No. 2023-190 N.C.S. Page 15
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Licensed Premises in accordance with the current, City-approved Fair Map and Implementation
Plan.
Play Dog Play(partial area with RV hookups), the Paintball Field, Livestock Restrooms, the
Horse Area, the Community Building(part of Live Oak Middle School), the Main Parking Lot,
the Ticket Booths/Apron Area, the Grove Parking lot, and some of Live Oak classrooms
buildings, will be made available upon approval of the 2024 Fair Map and Implementation
requirements,below,but may not be available for the 2025 fair or future fair events. The City
may provide reasonably comparable alternative locations or facilities to using the Live Oak
classroom buildings or other portions of the Fairgrounds used in the past for the Fair in the effort
to increase public use of the property. The City will partner with the Licensee to identify
alternative locations and/or facilities for administration,parking(both cars, and rvs), ticket
booths, exhibit space and potentially other uses to support future Fair events. Such alternative
locations and/or facilities will be reflected in the City-approved Fair Map and Implementation
Plan.
During the Fair, the Licensee will staff each of the access gates to the Fairgrounds, will be
responsible for providing Licensee's contractors and Fairgrounds users access to the Licensed
Premises as needed and appropriate, and for inspecting and locking or otherwise securing
Fairgrounds buildings and locations within the Licensed Premises after the conclusion of each
night of the Fair and at the conclusion of the Fair, all subject to the terms of the City's contracted
security protocols. Beginning June 1st the Licensee and Licensee's invitees and contractors will
have access to the Licensed Premises to set up for the carnival, concessions, entertainment,
exhibits, and animal shows. The Contractor will take down all exhibits and return the site to its
pre-fair condition no later than July 15tn The Licensee's (and its invitees' and contractors') access
to the Licensed Premises as described in this Exhibit will include access across other portions of
the Fairgrounds as necessary and convenient to carry out the Licensed Uses pursuant to this
Agreement. However, Licensee will carry out such access subject to and consistent with the use
rights of other Fairgrounds users pursuant to separate agreements issued by the City, except as
otherwise expressly approved by the City.
Performance Standards
The Fair, and any and all other events Licensee is permitted to offer pursuant to this Agreement
and all the Licensed Uses are subject to and must comply with all applicable requirements of the
City's Performance Standards in Chapter 21 of the Petaluma Implementing Zoning Ordinance,
Ordinance 2300 N.C.S., which may be accessed here: Ch. 21 Performance Standards I Petaluma
Implementing Zoning Ordinance (municipal.codes).
Special Event Permit
Licensee shall apply for and obtain a City Special Event Permit for the Fair and any other events
Licensee is permitted to offer pursuant to this Agreement that are subject to the City's Special
Event Permit requirements. Issuance of Special Event Permits requires 45 days for staff review.
Resolution No. 2023-190 N.C.S. Page 16
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Special Event Permit applications will be reviewed in conjunction with the Fair Map and
Implementation Plan. Special Event Permits are essential for coordinating aspects of the Fair and
other events the Licensee is authorized to offer such as access and security, safe ingress and
egress for pedestrians and vehicles, adequate liability protection, scheduling, and needed
coordination between Licensee and City staff and contractors.
Fair Map and Implementation Plan
By April 1 each year, Licensee will submit to the City for review and approval a Fair Map and
Implementation Plan depicting and describing how and where the Fair will be laid out on the
Licensed Premises. Licensee is free and encouraged to submit the Fair Map and Implementation
Plan prior to April 1, and the City will endeavor to review and respond within 30 days of
submission. The Fair Map and Implementation Plan will address details of Fair operations and
coordination between the Licensee and the City and others not otherwise addressed in this
Agreement so as ensure adequate coordination for a successful and safe FairThe Licensee will be
responsible for coordinating the activities comprising the Fair with other Fairgrounds users as
appropriate consistent with the approved Fair Map and Implementation Plan, the Special Event
Permit and this Agreement once the City has approved the Fair Map and Implementation Plan and
issued the Special Event Permit. As part of the City's maximization of public use of the
Fairgrounds, the City reserves the right to offer reasonably comparable alternative locations and
or/facilities for offering the Fair and other events the Licensee is permitted to offer pursuant to
this Agreement. Such alternative locations and/or facilities will be reflected in the City-approved
Fair Map and Implementation Plan.
Resolution No. 2023-190 N.C.S. Page 17
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Exhibit C
Insurance Requirements
Contractor's performance of the Services under this Agreement shall not commence until Contractor shall
have obtained all insurance required under this paragraph and such insurance shall have been approved by the
City Attorney as to form and the Risk Manager as to carrier and sufficiency. All requirements herein
provided shall appear either in the body of the insurance policies or as endorsements and shall specifically
bind the insurance carrier.
Contractor shall procure and maintain for the duration of the contract all necessary insurance against claims
now and in the future for injuries to persons or damages to property which may arise from or in connection
with the performance of the Services by the Contractor, the Contractor's agents, representatives, employees
and subcontractors. Contractor shall be responsible for all Subcontractors to obtain adequate insurance in the
performance of this agreement.
A. Required Minimum Scope of Insurance
0 Coverage shall be at least as broad as:
Insurance Services Office Commercial General Liability coverage:
a. Personal injury;
b. Contractual liability.
N Insurance Services Office form covering Automobile Liability(any auto), if no company owned
autos, non-owned and hired auto applies.
0 Workers' Compensation insurance as required by the State of California and Employer's Liability
Insurance.
0 Professional Liability/Errors and Omissions
0 Crime/Employee Blanket Fidelity Bond
❑ Property Insurance against all risks of loss to any tenant improvements or betterments.
❑ Pollution Liability Insurance
❑ Garage Liability
❑ Garagekeepers Insurance
❑ Technology Professional Liability Errors and Omissions Insurance(IT
Consultant)/Cyber Liability
0 Abuse or Molestation Liability Coverage (required if the event has close contact with minors)
A.1Required for All Contracts
NPolicy Endorsements or Excerpts from the Policy Pursuant to Section D
NCopy of the Declarations and Policy Endorsements Page for the CGL Policy
B. Minimum Limits of Insurance
Consultant shall maintain limits no less than:
0 General Liability: $5,000,000 per occurrence for bodily injury, personal injury and property damage. If
Commercial General Liability Insurance or other form with a general aggregate liability is used, either the
general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be
twice the required occurrence limit.
Resolution No. 2023-190 N.C.S. Page 18
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❑ Products/Completed Operations: $1,000,000 per occurrence/aggregate.
Automobile $1,000,000 per accident for bodily injury and property
Liability: damage.
Employer's Bodily Injury by Accident - $1,000,000 each accident.
Liability:
Bodily Injury by Disease - $1,000,000 policy limit. Bodily
Injury by Disease - $1,000,000 each employee.
❑x Professional Liability/Errors and Omissions: $1,000,000 per occurrence or claim. If the policy provides
coverage on a claims-made basis, the retroactive date must be shown and must be before the date of the
Agreement or the beginning of the contract work.
❑x Crime/Employee Blanket Fidelity Bond- $1,000,000: Contractor, at its own cost and expense, must maintain
a Crime/Employee Blanket Fidelity Bond in the amount of
$1,000,000 per employee covering dishonesty, forgery, alteration,theft, disappearance, destruction(inside
or outside).
❑ All Risk Property Insurance: Full replacement cost.
❑ Pollution legal liability with limits no less than $1,000,000 per occurrence or claim and
$2,000,000 policy aggregate. If the policy provides coverage on a claims-made basis,the retroactive date
must be shown and must be before the date of the Agreement or the beginning of the contract work.
❑ Garage Liability: $1,000,000 per occurrence.
❑ Garagekeepers Insurance: $1,000,000 per occurrence.
❑ Technology Professional Liability Errors and Omissions Insurance appropriate to the Consultant's
profession and work hereunder, with limits not less than $1,000,000 per occurrence. Coverage shall be
sufficiently broad to respond to the duties and obligations
as is undertaken by the Vendor in this agreement and shall include, but not be limited to, claims involving
infringement of intellectual property, copyright, trademark, invasion of privacy violations,information
theft,release of private information,extortion and network security. The policy shall provide coverage for
breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with
limits sufficient to respond to these obligations.
1. The Policy shall include, or be endorsed to include, property damage liability coverage for
damage to, alteration of, loss of, or destruction of electronic data and/or information"property"
of the City in the care, custody, or control of the Consultant. If not covered under the
Consultant's liability policy, such"property" coverage of the City may be endorsed onto the
Consultant's Cyber Liability as covered property as follows:
2. Cyber Liability coverage in an amount sufficient to cover the full replacement value of damage
to, alteration of, loss of, or destruction of electronic data and/or information"property" of the
City that will be in the care, custody, or control of the Consultant.
3. The Insurance obligations under this agreement shall be the greater of 1)all the Insurance
coverage and limits carried by or available to the Consultant; or 2)the minimum Insurance
requirements shown in this Agreement. Any insurance proceeds in excess of the specified limits
and coverage required, which are applicable to a given loss, shall be available to the City. No
representation is made that the minimum Insurance requirements of this Agreement are sufficient
to cover the indemnity or other obligations of the Consultant under this agreement.
❑x Abuse or Molestation Liability Coverage: $1,000,000 per occurrence or claim; $2,000,000 aggregate.
C. Deductibles and Self-Insured Retentions
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Any deductibles or self-insured retentions must be declared to and approved by the City. At the
option of the City, either: the insurer shall reduce or eliminate such deductibles or self- insured
retentions as respects the City, its officers, officials, employees, and volunteers; or the Consultant shall
procure a bond guaranteeing payment of losses and related investigations, claim administration and
defense expenses. Policies containing any self-insured retention(SIR)provision shall provide or be
endorsed to provide that the SIR may be satisfied by either the named insured(Contractor) or the City.
City reserves the right to review any and all of the required insurance policies, declaration pages,
and/or endorsements,but has no obligation to do so. City's failure to demand evidence of full
compliance with the insurance requirements set forth in this Agreement or City's failure to identify any
insurance deficiency shall not relieve Contractor from, nor be construed or deemed a waiver of, its
obligation to maintain the required insurance at all times during the performance of this Agreement.
D. Other Insurance Provisions
The required general liability and automobile policies are to contain,or be endorsed to contain the
following provisions:
1. Additional Insured: The City, its officers, officials, employees, agents and volunteers are to be
covered as Additional Insureds as respects: liability arising out of activities performed by or
on behalf of the Consultant;products and completed operations of the Consultant; premises
owned, occupied or used by the Consultant; or automobiles owned, leased, hired or borrowed
by the Consultant. The coverage shall contain no special limitations on the scope of protection
afforded to the City,its officers,officials, employees, agents or volunteers.
a. Subcontractors shall also endorse the City of Petaluma, its officers, officials,
employees, agents and volunteers as an Additional Insured.
2. Primary and Non-Contributory: For any claims related to this project,the Consultant's
insurance coverage shall be primary insurance as respects the City, its officers, officials,
employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its
officers, officials, employees, agents or volunteers shall be excess of the Consultant's
insurance and shall not contribute with it.
3. Any failure to comply with reporting or other provisions of the policies including breaches of
warranties shall not affect coverage provided to the City, its officers, officials, employees,
agents or volunteers.
4. The Consultant's insurance shall apply separately to each insured against whom claim is made
or suit is brought except, with respect to the limits of the insurer's liability.
5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not
be suspended, voided, canceled by either party, reduced in coverage or in limits except after
thirty(30)days' prior written notice by certified mail,return receipt requested, has been given
to the City.
6. Waiver of Subrogation: Consultant agrees to waive subrogation rights for commercial general
liability, automobile liability and worker's compensation against City regardless of the
applicability of any insurance proceeds, and to require all contractors, subcontractors or others
involved in any way with the Services to do likewise.
7. It shall be a requirement under this Agreement that any available insurance proceeds broader
than or in excess of the specified minimum insurance coverage requirement and/or limits shall
be available to the additional insured. Furthermore,the requirement
for coverage and limits shall be (1) the minimum coverage and limits specified in this
Agreement, or(2)the broader coverage and maximum limits of coverage of any insurance
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policy or proceeds available to the named insured; whichever is greater.
8. The limits of insurance required in this Agreement may be satisfied by a combination of
primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or
be endorsed to contain a provision that such coverage shall also apply on a primary and non-
contributory basis for the benefit of the City of Petaluma before the City of Petaluma's own
insurance or self-insurance shall be called upon to protect it as a named insured.
E. Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than AXII.
F. Verification of Coverage
NOTE: The City of Petaluma is now using an online insurance program, PINS Advantage. Once
you have been awarded a contract with the City of Petaluma,you will receive an e-mail from
PINS Advantage/City of Petaluma requesting that you forward the e-mail to your insurance
agent(s). Consultant shall furnish the City with Certificate of Insurance along with Declarations and
Endorsements effecting coverage required by this clause. The endorsements are to be signed by a
person authorized by that insurer to bind coverage on its behalf. All endorsements are to be received
and approved by the City before the Services commence.
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