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HomeMy WebLinkAboutAGENDA REPORT 2023 0104 CCSA REG ITEM 10CCITY OF MOORPARK, CALIFORNIA City Council Meeting of January 4, 2023 ACTION APPROVED STAFF RECOMMENDATION. (VOICE VOTE: 4-0, COUNCILMEMBER GROFF RECUSED) BY A. Hurtado. C. Consider License Agreement for Ongoing Sunday Farmer’s Market at North Metrolink Parking Lot. Staff Recommendation: Approve License Agreement with Enriched Farms & Avanti Harvest, Inc., and authorize the City Manager to sign the Agreement, subject to final language approval of the City Manager. (Staff: Jessica Sandifer, Community Services Manager) Item: 10.C. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Jessica Sandifer, Community Services Manager DATE: 01/04/2023 Regular Meeting SUBJECT: Consider License Agreement for Ongoing Sunday Farmer’s Market at North Metrolink Parking Lot BACKGROUND In February of 2021, Enriched Farms & Avanti Harvest Inc. (Enriched Farms), contacted the City regarding interest in establishing a Certified Farmer’s Market (Market) in Moorpark. The City issued a Temporary Use Permit (TUP) for permission to operate the Market, and a Park Facility Reservation Permit was issued for use of the Moorpark Community Center parking lots, to serve as the Market site. The Market began operating at the Community Center in May 2021. In June 2021, Enriched Farms requested reduced fees for the rental of the Community Center for the event. Even though Enriched Farms was being charged the Moorpark Non-Profit Rental rate, it did not generate the resources to support the non-profit rental fee of $1,473 per month. In the interest of supporting the Market to help it grow, the City Council approved a 50% reduction in the fee rates for Enriched Farms resulting in a monthly rate of $736 per month. In April 2022, in response to feedback from the public regarding the location, the Market requested, and the City approved, moving the Farmers Market to a parking lot on High Street to the east of Kahoots. The Market operated there until September 2022. Upon completion of the North Metrolink Parking Lot Improvements, Enriched Farms approached the City about changing the location of the Market to the part of the North Metrolink Parking Lot owned by the City. It is important to note that the eastern portion of the North Metrolink parking lot is owned by Ventura County Transportation Commission (VCTC). Additionally, Enriched Farms requested the City further reduce the rental rate and requested a long-term Agreement. Since VCTC owns the other half of the parking lot, and Market operations will require the use of the VCTC lot to maintain circulation within the parking lot, City staff has been working with VCTC staff and Enriched Farms on securing the use of the parking lot through the issuance of a License Agreement. Item: 10.C. 281 Honorable City Council 01/04/2023 Regular Meeting Page 2 DISCUSSION City Facility Rental Permits are only valid for a three (3) month period. This requires renters to resubmit their application and payment every three months. Since the intent is to provide Enriched Farms a longer-term use, staff has prepared a License Agreement for the use of the City-owned part of the North Metrolink Parking Lot. The License Agreement generally provides for the following: • Term: Provides for a one-year term, which will be 12 months from the date the License Agreement is executed. • Consideration: Despite being in operation for over a year, the Farmer’s Market has not been profitable. Because of this, Enriched Farms has requested a waiver of the rental rate entirely. However, rather than a complete waiver of the rental rate, staff proposed a License Agreement with revenue sharing provisions with Enriched Farms. This practice is utilized by many municipal agencies in recognition of the limited resources of facility users, while not putting the City in a situation where its facilities are monetized for private purposes. Enriched Farms will be required to provide Quarterly Profit and Loss statements detailing all expenses and revenues and net profit. Enriched Farms will then pay the City 10% of the net profit for the quarter. If there is no net profit, then there will be no payment to the City for that quarter. For this first year, there is likely to be minimal revenue received. However, moving the Market to the new location incurs no City direct costs as the location does not need to be staffed and Enriched Farms is required to empty trash receptacles and place all signage and barricades associated with the Market. • VCTC Approval: Enriched Farms is also required to obtain a License Agreement for the VCTC Property. If a License Agreement is not obtained from VCTC, the City’s License Agreement is invalid. Further, if Enriched Farms defaults under the VCTC License Agreement, then that will constitute a default under the City’s License Agreement. • Signage / Barricades: The North Metrolink Parking lot was originally designed for one-way circulation through the parking lot. Using the City-owned part of the lot for the Market requires redirecting how traffic circulates to ensure no vehicles drive through the Market. Enriched Farms is responsible for securing the Market area with barricades to keep vehicular traffic out of the Market, and signage to direct drivers in the parking lot. Enriched Farms is also required to place signage to discourage Market attendees from parking in the South Metrolink Parking Lot and crossing the railroad tracks to attend the Market. All signage and barricade placement is subject to City and VCTC review and satisfaction. 282 Honorable City Council 01/04/2023 Regular Meeting Page 3 Staff recognizes that a Certified Farmer’s Market can be a benefit to the community and is recommending that the City Council approve the one-year License Agreement with the revenue sharing provisions. At the conclusion of the current License Agreement, if Enriched Farms would like to continue to operate the Market, staff will return to City Council to renew the License Agreement and discuss any recommended changes needed based on the first year of operations. FISCAL IMPACT Rental fees under the current agreement would have resulted in rental revenue income of $8,840 for the 2022/23 fiscal year. Under the proposed License Agreement, the City will instead receive 10% of Enriched Farm’s net profit, if any, for the use of the North Metrolink Parking Lot. Anticipated income to be received by the City under the proposed License Agreement is expected to be minimal for the first year. However, as mentioned above, there are no direct costs to the City associated with the use of the parking lot so there is no cost to the City for the Market operations. Therefore no Budget Amendment is required. COUNCIL GOAL COMPLIANCE This action does not support a current strategic objective. STAFF RECOMMENDATION Approve License Agreement with Enriched Farms & Avanti Harvest, Inc., and authorize the City Manager to sign the Agreement, subject to final language approval of the City Manager. Attachment: License Agreement 283 Page 1 of 16 12853-0064\2206965v1.doc LICENSE AGREEMENT FOR USE OF CITY OF MOORPARK PROPERTY FOR FARMERS MARKET This License Agreement (“License”) is made between the CITY OF MOORPARK, a MUNICIPAL CORPORATION, (the “City” or “Licensor”), and ENRICHED FARMS & AVANTI HARVEST, INC., a non-profit corporation (“Licensee”) and is entered into as of this ________ day of _________________, 2023. The Licensor and Licensee are referred to below collectively as the “Parties”. RECITALS A. The Licensor is the record fee owner of that certain real property described on Exhibit A and depicted on Exhibit B hereto (“City Property” or “License Area”). Exhibits A and B are incorporated herein by this reference. B. The Licensee desires to use City Property to conduct a weekly Farmer’s Market. C. Ventura County Transportation Commission (VCTC) is the record fee owner of that certain real property described on Exhibit C and depicted on Exhibit D (“VCTC Property”). Exhibits C and D are incorporated herein by this reference. D. Southern California Regional Rail Authority (SCRRA) is the operator of the Metrolink Train System served by VCTC and City Property. E. Licensor wishes to formalize the use of the City Property for a weekly Farmer’s Market. F. The Parties desire to enter into this License subject to the terms and conditions stated below. NOW THEREFORE, in consideration of the Parties’ performance of the promises, covenants and conditions stated herein, the City and Licensee agree to the following. LICENSE AGREEMENT 1. Grant of License. a. CITY hereby grants to Licensee a license to enter upon and use the City Property for the purpose of holding a weekly Farmer’s Market. The day of the week and time of the event shall be approved by the Parks and Recreation Director on an annual basis. Any changes to the days or hours of the event need to be approved by the City. ATTACHMENT 284 Page 2 of 16 12853-0064\2206965v1.doc b. No legal title, leasehold or other interest in the License Area is created or vested in Licensee by the grant of this License. c. Use of the City Property is conditioned upon Licensee obtaining a License Agreement (“VCTC License”) from VCTC for the use of the adjacent VCTC Property. d. The License Area may be terminated by the CITY as described herein. 2. Consideration. In consideration for the License herein granted by the CITY to Licensee, Licensee shall pay to the CITY 10% of the net profit of the farmer’s market. Licensee shall submit a quarterly profit and loss statement to CITY showing all expenses and revenues earned by the Farmer’s Market and detailing the net profit. Reports are to be submitted to the City along with the required payments within 15-days of the end of the quarter. The City operates on a July 1 to June 30 Fiscal Year. The report and payment due dates are as follows: • 1st Quarter Report and Payment : October 15 • 2nd Quarter Report and Payment: January 15 • 3rd Quarter Report and Payment: April 15 • 4th Quarter Report and Payment: July 15 3. Term. The License to Licensee for the City Property will commence on _______ 1, 2023 and continue until the following: (i) November 30, 2023; (ii) the date that VCTC terminates the License Agreement for the VCTC Property or (iii) until the CITY exercises its rights to terminate the License as set forth below in Section 4. 4. Termination. a. The CITY may terminate this License for no fault by providing 30- days written notice to Licensee; or if Licensee defaults under any of the provisions of this License CITY shall notify Licensee in writing of the default. Licensee will have ten (10) days to cure default or License will be terminated within seven (7) days after expiration of cure period. b. Licensee may terminate this License with or without cause by providing 30-days written notice to the City of the termination of this License. 5. Use of the License Area. a. Prior to use of City Property, the Licensee will obtain permission to use the adjacent property owned by VCTC as parking for event visitors. Licensee will execute a VCTC License and must coordinate parking, signage, and circulation with SCRRA. 285 Page 3 of 16 12853-0064\2206965v1.doc b. For all farmer’s market events Licensee must place directional signage to alert riders where the commuter parking is located. Licensee must also place signage on the commuter parking lot advising no event parking, and Licensee must place signage that instructs “No Market Event Crossing” on the pedestrian crossing on each side of the Metrolink station. c. Licensee agrees to use the License Area for use as a once weekly Farmer’s Market on a day mutually acceptable to Licensee, City and VCTC. No other use is allowed in the License Area. d. Licensee shall not make any other alterations or improvements to the License Area without the prior written consent of the CITY, which consent may be granted or withheld in the City’s sole and absolute discretion. d. Licensee shall not commit any waste or any public or private nuisance on the License Area. e. Licensee shall abide by any such rules and regulations as may be promulgated by the City regarding the use of the License Area. f. Licensee shall maintain the License Area and VCTC Property, in a reasonably safe and clean manner during the operation of the Farmer’s Market. Licensee shall be responsible for the following during operation of the Farmer’s Market: i. Posting signage as required by VCTC and SCRRA discouraging the use of the Metrolink South Parking Lot to access the Farmer’s Market. ii. Posting signage and barricades to the City’s satisfaction to direct vehicular circulation, secure parking locations, and prevent vehicles from entering License Area during the event. iii. All trash and debris shall be removed from the License Area and VCTC Property at the end of each event. iv. All trash receptacles and recycle containers that are half-full or more within the License Area and VCTC Property shall be emptied and replaced with new liners at the end of each event. Trash liners shall be black in color and recycle liners shall be clear. All liners shall be commercial grade 1.5 Mil thickness or better. g. Licensee shall comply with all requirements as outlined by VCTC or SCRRA in the VCTC License for the VCTC Property. Termination of the VCTC License will be considered a default under this Agreement. h. Any activity on or use of the License Area inconsistent with the terms of this License is prohibited. Without limiting the generality of the foregoing, the following uses are strictly prohibited: 286 Page 4 of 16 12853-0064\2206965v1.doc i. Erection of any lighting in the License Area, or any artificial lighting of License Area. ii. Any dumping and/or discharge of any type onto the License Area; iii. Any storage of any material for any period of time not authorized by the City, VCTC or SCRRA 6. Right of Entry. The City and its authorized representatives shall have the right to enter the License Area at all reasonable times to inspect the License Area. 7. Indemnification. 8.1 General Indemnification. To the fullest extent allowed by law, except for the sole negligence of City, Licensee shall defend, indemnify, and keep and hold City, VCTC and SCRRA including their officers, employees and agents, their successors and assigns, harmless from any and all costs liability, damage or expense (including costs of suit and fees and expenses of legal services) claimed by anyone by reason of injury to or death of persons, or damage to or destruction of property, including property of Licensee or VCTC, sustained in on or about the License Area or VCTC Property arising out of Licensee’s use thereof, as a proximate result of the acts or omissions of Licensee, it’s employees and agents or its contractors, invitees, their successors and assigns or arising out of the condition of the Properties. City shall by appropriate, written notice to Licensee, advise Licensee as soon as practicable regarding any potential liability of Licensee under this Section. 8.2 Hazardous Material Indemnification. To the fullest extent permitted by law, Licensee releases and will indemnify, protect, defend (with counsel reasonably acceptable to City) and hold harmless the Indemnitees from and against any and all Claims whatsoever arising or resulting, in whole or in part, directly or indirectly, from the presence, treatment, storage, transportation, disposal, release or management of hazardous materials in, on, under, about or from the License Area and VCTC Property (including water tables and atmosphere) arising from Licensee’s use of the License Area and/or VCTC Property. Licensee’s obligations under this Section include, without limitation and whether foreseeable or unforeseeable, (a) the costs of any required or necessary repair, compliance, investigations, clean-up, monitoring, response, detoxification or decontamination of the License Area, City Property, or VCTC Property; (b) the costs of implementing any closure, remediation or other required action in connection therewith; (c) the value of any loss of use and any diminution in value of the License Area or City Property, VCTC Property and affected adjacent and nearby properties, including groundwater; and (d) consultants’ fees, experts’ fees and response costs. The obligations of Licensee under this Section survive the expiration or earlier termination of this License. 8. Right of Recovery. Licensee waives any right of recovery against the City, VCTC, SCRRA, their officers, employees, and agents for indemnification, contribution, or declaratory relief arising out of or in any way connected with Licensee’s use or occupancy 287 Page 5 of 16 12853-0064\2206965v1.doc of the License Area and VCTC property, even if the City, VCTC, SCRRA, their officers, employees, or agents seek recovery against Licensee. 9. No Assumption of Responsibility or Damage by City. The granting of this License Agreement by the City shall not constitute an assumption by the City of any responsibility for any consequential damage or taking. City shall not be an insurer of the License Area, nor shall any officer or employee thereof be liable or responsible for any accident, loss or damage happening or occurring during use of the License area. 10. Surrender of License Area. Upon the termination of this License, Licensee shall a. Have no right to enter upon or use the License Area; b. Surrender the License Area in as close to the condition as it existed as of License Agreement; and c. Remove all of Licensee’s personal property from the License Area. 11. Insurance. a. Licensee shall follow the principles of a sound risk management program. Whenever possible, risk shall be avoided. i. Upon signing of License Agreement, Licensee shall provide at its own cost the insurance described on Exhibit E, attached hereto, and provide evidence thereof to City. ii. Licensee shall not commit any acts on the License Area, nor use License Area in any manner that will cause the cancellation of any fire, liability, or other insurance policy insuring the License Area or the improvements on the License Area. 12. Assignment. Licensee may not assign, transfer, or grant any interest in the License herein granted without obtaining the prior written consent of the City. The City may withhold its consent in its sole and absolute discretion. Any attempt by Licensee to assign, transfer or grant any interest in the License herein granted may result in a revocation of the License at the sole discretion of the City. 13. Notices. All notices and demands will be given in writing by certified mail, postage prepaid, and return receipt requested or by Federal Express. Notices will be considered given upon the earlier of (a) two business days following deposit in the United States mail, postage prepaid, certified or registered, return receipt requested or (b) one business day following deposit with Federal Express. The Parties will address such notices as provided below or as may be amended by written notice: 288 Page 6 of 16 12853-0064\2206965v1.doc CITY: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attention: City Manager LICENSEE: Enriched Farms & Avanti Harvest, Inc. Attention: Jason Davis, CEO 4273 Crabapple Court Moorpark, CA 93021 14. Miscellaneous. a. Authority to Bind Parties and Execute License. The City and Licensee represent and warrant to one another that this License constitutes a binding obligation on each of them and that the person executing this License is authorized to execute the License on behalf of the respective party and to bind it. b. Governing Law. This License is deemed to have been prepared by each of the Parties hereto, and any uncertainty or ambiguity herein shall not be interpreted against the drafter, but rather, if such uncertainty or ambiguity exists, shall be interpreted according to the applicable rules of interpretation of contracts under the laws of the State of California, and not the substantive law of another state or the United States or federal common law. This License shall be deemed to have been executed and delivered within the State of California, and the rights and obligations of the Parties shall be governed by, and construed and enforced in accordance with, the laws of the State of California with any disputes venued in the court of competent jurisdiction in Ventura County. c. Amendment or Modification. This License may be modified or amended only by a writing executed by all Parties to this License, subject to clause n. below. d. Partial Invalidity/Severability. Each provision of this License shall be valid and enforceable to the fullest extent permitted by law. If any provision of this License or the application of such provision to any person or circumstance is, to any extent, deemed to be invalid or unenforceable, the remainder of this License, or the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected by such invalidity or unenforceability, unless such provision or such application of such provision is essential to this License. e. Legal Representation. The Parties, and each of them, acknowledge that in connection with the negotiation and execution of this License, they have each been represented by independent counsel of their own choosing and the Parties executed the License after review by such independent counsel, or, if they were not so represented, said non-representation is and was the voluntary, intelligent and informed decision and election of any of the Parties not so represented; and, prior to executing this License, each of the Parties has had an adequate opportunity to conduct an independent 289 Page 7 of 16 12853-0064\2206965v1.doc investigation of all the facts and circumstances with respect to the matters which are the subject of this License. f. Counterparts, Electronic Signatures. This License may be executed in whole or in counterparts which together shall constitute the entire License. Electronic signatures/counterparts to this License shall be effective as if the original signed counterpart were delivered. g. Fees and Costs. Each of the Parties shall bear its own attorney’s fees and costs incurred in connection with negotiating the matters described in this License. h. Remedies Not Exclusive and Waivers. No remedy conferred by any of the specific provisions of this License is intended to be exclusive of any other remedy and each and every remedy will be cumulative and will be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. The election of any one or more remedies will not constitute a waiver of the right to pursue other available remedies. i. Waiver. No provision of this License may be waived unless in writing signed by all Parties. Waiver of any one provision shall not be deemed to be a waiver of any other provision. j. No Joint Venture. Nothing contained herein shall be construed to render the City in any way or for any purpose a partner or joint venture, or associated in any relationship with Licensee, nor shall this License be construed to authorize either Party to act as agent for the other. k. Attorneys’ Fees. If either Party commences an action against the other Party, either legal, administrative or otherwise, arising out of or in connection with this License, the prevailing Party in such litigation shall be entitled to have and recover from the losing Party its reasonable attorneys’ fees and other costs incurred in connection with such action. l. Time of Essence. Time is of the essence of every provision hereof in which time is a factor. m. Entire Agreement. This License constitutes the entire agreement of the Parties as to the subject matter of this License. n. City Manager Authority. The City Manager of City shall have the authority to give all notices and consents on behalf of City and enter into non-substantial amendments. IN WITNESS HEREOF, the Parties have executed this License as of the date and year first above written. 290 Page 8 of 16 12853-0064\2206965v1.doc LICENSEE Enriched Farms & Avanti Harvest, Inc. By:_______________________________ Name: Jason Davis, CEO LICENSOR City of Moorpark By:______________________________ Troy Brown, City Manager Exhibits: A&B- Legal Description/Depiction - City License Area C&D – Legal Description/Depiction – VCTC Property 291 Page 9 of 16 12853-0064\2206965v1.doc EXHIBIT “A” Legal Description of City Property Parcel 4 of Parcel Map 2017-01, the City of Moorpark, County of Ventura, State of California, as per map filed in Book 72, Pages 27, 28, 29, and 30 of Parcel Maps, in the Office of the County Recorder of Ventura County. EXCEPT all minerals and mineral rights, interests and royalties, including without limitation, all oil, gas and other hydrocarbon substances, as well as metallic or other solid minerals of whatever kind or character, whether now known or hereafter discovered, in and under the land below a depth of 500 feet under the surface without regard to the manner in which the same may be produced or extracted from the land, but without any right to enter upon or through the surface down to 500 feet below the surface to extract, drill, explore or otherwise exploit such minerals or mineral rights and without any right to remove or impair lateral or subjacent support, recorded September 27, 1991, as Document No. 91-143119, Official Records. APN: 512-0-090-115 292 Page 10 of 16 12853-0064\2206965v1.doc Exhibit B Depiction of City License Area 293 Page 11 of 16 12853-0064\2206965v1.doc Exhibit C Legal Description of VCTC Property Those portions of Lots 34, 35, and 36, Fremont Subdivision of Lot “L” of the Rancho Simi, in the City of Moorpark, County of Ventura, State of California, as per Map recorded in Book 3, Page 39 of Maps, in the office of the County Recorder of said County, being a strip of land 300 feet in width, the centerline thereof being the centerline of the 100 foot wide strip of land described in the deed dated February 28, 1900, from Madeline R. Poindexter, et al., to the Southern Pacific Railroad Company recorded March 20, 1900, in Book 65, Page 169 of Deeds, said 300 foot wide strip of land being bounded Easterly by a line perpendicular to the center line of the main track of the Southern Pacific Transportation Company at Engineer’s Station 1006+77 and bounded Westerly by a line perpendicular to said center line at Engineer’s Station 1033 + 17 including all easements of record in the City of Moorpark, County of Ventura, State of California. EXCEPT therefrom that portion lying contiguous to and Southerly of a line parallel with and distant 100 feet Southerly, measured at right angles, from the Northerly line of said 300 foot strip of land. ALSO EXCEPT that portion of the Northerly 100 feet of said 300 feet wide strip of land, lying Westerly of a line parallel with and Westerly 256.96 feet from the Easterly boundary of said 300 foot strip of land. ALSO EXCEPT all minerals and mineral rights, interests and royalties, including without limitation, all oil, gas and other hydrocarbon substances, as well as metallic or other solid minerals of whatever kind or character, whether now known or hereafter discovered, in and under the land below a depth of 500 feet under the surface without regard to the manner in which the same may be produced or extracted from the land, but without any right to enter upon or through the surface down to 500 feet below the surface to extract, drill, explore or otherwise exploit such minerals or mineral rights and without any right to remove or impair lateral or subjacent support, recorded September 27, 1991, as Document No. 91-143119, Official Records. APN: 512-0-090-120 294 Page 12 of 16 12853-0064\2206965v1.doc Exhibit D Depiction of License Area - VCTC 295 Page 13 of 16 12853-0064\2206965v1.doc Exhibit E Insurance Requirements Licensee will maintain insurance in conformance with the requirements set forth below. Licensee will use existing coverage to comply with these requirements. If that existing coverage does not meet the requirements set forth here, Licensee agrees to amend, supplement or endorse the existing coverage to do so. Licensee acknowledges that the insurance coverage and policy limits set forth in this section constitute the minimum amount of coverage required. Any insurance proceeds available to Licensor in excess of the limits and coverage required in this agreement and which is applicable to a given loss, will be available to Licensor. Licensee shall provide the following types and amounts of insurance: Commercial General Liability Insurance using Insurance Services Office “Commercial General Liability” policy form CG 00 01 or the exact equivalent. Defense costs must be paid in addition to limits. There shall be no cross liability exclusion for claims or suits by one insured against another. Limits are subject to review but in no event less than $2,000,000 per occurrence and $4,000,000 in aggregate. The policy shall contain no exclusion for occurrences happening within a proximity to active railroad tracks. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event to be less than $1,000,000 per accident and $2,000,000 in aggregate. If Licensee owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement to the general liability policy described above. If Licensee or Licensee’s employees will use personal autos in any way on this project, Licensee shall provide evidence of personal auto liability coverage for each such person. Pollution Liability Insurance shall be written on a Contractor’s Pollution Liability form or other form acceptable to the City providing coverage for liability arising out of sudden, accidental and gradual pollution and remediation. The policy limit shall be no less than $1,000,000 per claim and aggregate. Worker’s Compensation on a state-approved policy form providing statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident or disease. Insurance procured pursuant to these requirements shall be written by insurers that are admitted carriers in the State of California and with an A.M. Best’s rating of A- or better and a minimum financial size VII. General conditions pertaining to provision of insurance coverage by Licensee. Licensee and Licensor agree to the following with respect to insurance provided by Licensee: 1. Licensee agrees to have its insurer endorse the third-party general liability 296 Page 14 of 16 12853-0064\2206965v1.doc coverage required herein to include as additional insureds City, VCTC, SCRRA and their respective officials, employees, servants, agents, and independent consultants (“Licensor indemnities”), using standard ISO endorsement No. CG 2010 or No. CG 2011 with an edition acceptable to the City. Licensee also agrees to require all contractors and subcontractors working on the Premise to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Licensee, or Licensee’s agents, from waiving the right of subrogation prior to a loss. Licensee agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractors to do likewise. 3. All insurance coverage and limits provided by Licensee and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations limits the application of such insurance coverage. 4. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to Licensor and approved of in writing. 5. No liability policy shall contain any provision or definition that would serve to eliminate so-called “third party action over” claims, including any exclusion for bodily injury to an employee of the insured or any contractor or subcontractor. 6. All coverage types and limits required are subject to approval, modification, and additional requirements by the Licensor, as the need arises. Licensee shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect Licensor’s protection without Licensor’s prior written consent. 7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Licensee’s general liability policy, shall be delivered to Licensor at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, Licensor has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Licensee or deducted from sums due Licensee, at City’s option. 8. Certificates are to reflect that the insurer will provide 30 day notice to Licensor of any cancellation of coverage. Licensee agrees to require its insurer to modify such certificates to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will 297 Page 15 of 16 12853-0064\2206965v1.doc “endeavor” (as opposed to being required) to comply with the requirements of the certificate. 9. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Licensee, is intended to apply first and on a primary, non-contributing basis in relation to any other insurance or self-insurance available to City. 10. Licensee agrees to ensure that subcontractors, and any other party entering onto the Premises, provide the same minimum insurance coverage required of Licensee. Licensee agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Licensee agrees that upon request, all agreements with subcontractors and other parties entering onto the Premises will be submitted to City for review. 11. Licensee agrees not to self-insure or to use any self-insured retention or deductibles on any portion of the insurance required herein and further agrees that it will not allow any contractor, subcontractor, or other entity or person entering onto the Premises to self-insure its obligations to City. If Licensee’s existing coverage includes a deductible or self-insured retention, the deductible or self- insured retention must be declared to the Licensor. At that time the City shall review options with the Licensee, which may include reduction or elimination of the deductible of self-insured retention, substitution of other coverage, or other solutions. 12. For purposes of applying insurance coverage, only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 13. Licensee acknowledges and agrees that any actual or alleged failure on the part of the City to inform Licensee of non-compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 14. Licensee will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this Agreement. This obligation applies whether or not the Agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect. 15. Licensee shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Licensee‘s insurance agent to this effect is acceptable. A certificate of insurance 298 Page 16 of 16 12853-0064\2206965v1.doc and/or additional insured endorsement is required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 16. The provisions of any workers’ compensation or similar act will not limit the obligations of Licensee under this Agreement. Licensee expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials, and agents. 17. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a give coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party of insured to be limiting or all- inclusive. 18. These insurance requirements are intended to be separate and distinct from any other provision in this agreement and are intended by the parties here to be interpreted as such. 19. The requirements in this Section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Section. 20. Licensee agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge Licensor or Licensee for the cost of additional insurance coverage required by this Agreement. Any such provisions are to be deleted with reference to the City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. Licensee agrees to provide immediate notice to Licensor of any claim or loss against Licensee arising out of the use of the Premises. Licensor assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. 299