PLANET HOME 2019
Palace Of Fine Arts Terms(Web Version)
PALACE OF FINE ARTS TERMS (WEB VERSION)
1.1 The Creator/Exhibitor/Vendor/Exhibitor/Vendor shall comply with the Good Neighbor Policy attached hereto as Exhibit D. Creator/Exhibitor/Vendor/Exhibitor/Vendor will ensure that it, and its employees, contractors and agents, will not participate in any unlawful, or immoral activities, or in any manner that may injure persons or property. Without limiting the foregoing, Creator/Exhibitor/Vendor shall not permit any of the following prohibited uses:
(a) Operation of a membership-only private club
(b) Operation of a restaurant
(c) Disposal of fats, oils and grease or any food waste containing fats, oil or grease directly
into drains at the License Area
(d) Storage or stockpiling of soil
(e) Washing, maintenance and fueling of vehicles or equipment
(f) Use for hourly, weekly or monthly parking not associated with the Events
1.2 Use Reserved to EQ. Creator/Exhibitor/Vendor shall only be permitted on the Premises during the hours and day(s) approved by EQ. Creator/Exhibitor/Vendor acknowledges and agrees that Creator/Exhibitor/Vendor shall control all credentialed and non-credentialed access to the License Area before, during and after the Event.
1.3 Compliance with Laws. Creator/Exhibitor/Vendor, in exercising its rights to use the License Area, shall, at all times be subject to and shall comply with all applicable laws, rules, ordinances, orders, judgments and regulations of any and all applicable governmental and quasi-governmental entities and any private entity having jurisdiction over the License Area in the performance of its obligations and the use of the License Area, including, without limitation, the San Francisco Police Code, Sections 12B.2(a), 12B.2 (c)-(k) and 12C.3 of the San Francisco Administrative Code, Hazardous Material Laws (as hereinafter defined) and Disabled Access Laws (as hereinafter defined), and all reasonable and posted rules and regulations adopted by the Department or EQ from time to time applicable to all users of the License Area. In addition, to the extent required, Creator/Exhibitor/Vendor shall, at all times, comply with any rules and regulations required by the City and the City as licensor under the Recreation & Park Department Permit. The cost of compliance with all such Laws, rules and regulations during and relating to the Event shall be the responsibility of Creator/Exhibitor/Vendor.
1.4 The San Francisco Municipal Codes (available at www.sfgov.org) and City policies described or referenced in this License are incorporated by reference as though fully set forth in this Agreement. The descriptions herein are not comprehensive but are provided for notice purposes only; Creator/Exhibitor/Vendor is charged with full knowledge of each such ordinance and policy and any related implementing regulations as they may be amended from time to time, including but not limited to Sections 12B.2 (a), 12B.2 (c)-(k) and 12C.3 of the Administrative Code. Creator/Exhibitor/Vendor understands and agrees that its failure to comply with any provision of this Event License relating to any such code provision shall be deemed a material breach of this Event License and may give rise to penalties under the applicable ordinance. As required by the EQ-Recreation & Park Department Permit, in the performance of this Event License, Creator/Exhibitor/Vendor covenants and agrees not to discriminate on the basis of the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status), weight, height, association with members of classes protected under this Chapter 12B or 12C of the San Francisco Administrative Code or in retaliation for opposition to any practices forbidden under Chapter 12B or 12C of the Administrative Code against any employee of Creator/Exhibitor/Vendor, any City and County employee working with Creator/Exhibitor/Vendor, any applicant for employment with Creator/Exhibitor/Vendor, or any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations operated by Creator/Exhibitor/Vendor in the City and County of San Francisco.
For purposes of this Event License, the following definitions shall apply:
(a) “Disabled Access Laws” means all laws related to access for persons with disabilities including, without limitation, the Americans with Disabilities Act, 42 U.S.C.S. Section 12101 et seq. and disabled access laws under the City’s building code.
(b) “Environmental Regulatory Action” when used with respect to Hazardous Materials means any inquiry, Investigation, enforcement, Remediation, agreement, order, consent decree, compromise, or other action that is threatened, instituted, filed, or contemplated by an Environmental Regulatory Agency in relation to a Release of Hazardous Materials, including both administrative and judicial proceedings.
(c) “Environmental Regulatory Agency” means the United States Environmental Protection Agency, OSHA, any California Environmental Protection Agency board, department, or office, including the Department of Toxic Substances Control and the San Francisco Bay Regional Water Quality Control Board, Cal OSHA, the Bay Area Air Quality Management District, the San Francisco Department of Public Health, the San Francisco Fire Department, City, or any other Regulatory Agency now or later authorized to regulate Hazardous Materials. “Environmental Regulatory Approval” means any approval, license, registration, permit, or other authorization required or issued by any Environmental Regulatory Agency, including any hazardous waste generator identification numbers relating to operations on the License Area and any closure permit.
(d) “Hazardous Material Laws” means any Laws relating to Hazardous Material (including its handling, release, or remediation) or to human health and safety, industrial hygiene, or environmental conditions in the environment, including structures, soil, air, bay water, and groundwater, and any environmental mitigation measure adopted under Hazardous Material Law affecting any part of the License Area.
(e) “Hazardous Material” means any substance, waste, or material that is now or in the future designated by any Regulatory Agency to be capable of posing a present or potential risk of injury to human health or safety, the environment, or property. This definition includes anything designated or defined in any Hazardous Material Law as hazardous, hazardous substance, hazardous waste, toxic, pollutant, or contaminant; any asbestos, ACMs, and PACMs, whether or not part of the structure of any existing Improvements on the License Area, any Improvements to be constructed on the License Area by or on behalf of Creator/Exhibitor/Vendor, or occurring in nature; and other naturally- occurring substances such as petroleum, including crude oil or any fraction, and natural gas or natural gas liquids.
(f) “Hazardous Material Claim” means any Environmental Regulatory Action or any Claim made or threatened by any third party against the NPU Indemnified Parties, or the License Area, relating to damage, contribution, cost recovery EQ, loss or injury resulting from the presence or Release of any Hazardous Materials, including, without limitation, Losses based in common law. Hazardous Materials Claims include, without limitation, Investigation and Remediation costs, fines, natural resource damages, damages for decrease in value of the License Area or any other City property, the loss or restriction of the use or any amenity of the License Area or any other City property, and attorneys’ fees and Creator/Exhibitor/Vendors’ fees and experts’ fees and costs.
(g) “Law” means any present or future law, statute, ordinance, code, resolution, rule, regulation, judicial decision, requirement, proclamation, order, decree, policy (including the Waterfront Land Use Plan), and Regulatory Approval of any Regulatory Agency with jurisdiction over any portion of the License Area, including Regulatory Approvals issued to City which require Creator/Exhibitor/Vendor’s compliance, and any and all recorded and legally valid covenants, conditions, and restrictions affecting any portion of the License Area, whether in effect when this License is executed or at any later time and whether or not within the present contemplation of the parties.
1.6 Suitability of License Area. Creator/Exhibitor/Vendor acknowledges that City, Recreation & Park Department and EQ have made no representations or warranties concerning the License Area, including without limitation, the seismological condition thereof. By entering onto the License Area under this Event License, Creator/Exhibitor/Vendor acknowledges the condition of the building located on the License Area and shall be deemed to have inspected the License Area and accepted the License Area in its “As Is” condition and as being suitable for the conduct of Creator/Exhibitor/Vendor’s activity thereon.
1.6 Agreement Regarding City Waiver and Release. Before any Creator/Exhibitor/Vendor, Creator/Exhibitor/Vendor, Sub-Permittee, or other third party operates in the License Area pursuant to this License, EQ shall obtain from such Creator/Exhibitor/Vendor, Creator/Exhibitor/Vendor, Sub-Permittee, or other third party a signed waiver and release in the form attached hereto as Exhibit C.EQ. EQ shall retain such executed waiver and release forms, and shall provide the original executed forms to City at City’s written request given from time to time. 
2. USE TERM
Creator/Exhibitor/Vendor acknowledges that the failure to vacate the License Area by the date and time specified by EQ will cause damages to EQ in an amount that would be impracticable or extremely difficult to determine. Therefore, Creator/Exhibitor/Vendor agrees to pay as liquidated damages, and not as a penalty, $5,000.00 for each hour beyond the date and time listed above that it fails to fully vacate the License Area.
Creator/Exhibitor/Vendor shall not conduct any activities on or about the License Area that constitute waste, nuisance or unreasonable annoyance (including, without limitation, emission of objectionable odors, noises or lights) to City, to the owners or occupants of neighboring property or to the public. Creator/Exhibitor/Vendor shall not do anything about the License Area that will cause damage to any of City’s property.
Smoking is prohibited in or on the License Area. Creator/Exhibitor/Vendor shall not knowingly or intentionally permit, or allow its employees, Creator/Exhibitor/Vendors or Sub-Permittees to permit, smoking in or on the premises.
3. Confidential Information.
3.1 Protection of Information. Creator/Exhibitor/Vendor understands that during the Relationship, EQ intends to provide Creator/Exhibitor/Vendor with certain information, including Confidential Information (as defined below), without which Creator/Exhibitor/Vendor would not be able to perform Creator/Exhibitor/Vendor’s duties to EQ. At all times during the term of the this Agreement and thereafter, Creator/Exhibitor/Vendor shall hold in strictest confidence, and not use, except for the benefit of EQ to the extent necessary to perform the Services, and not disclose to any person, firm, corporation, or other entity, without written authorization from EQ in each instance, any Confidential Information. If Creator/Exhibitor/Vendor is so authorized, it will ensure that such authorized persons are only disclosed Confidential Information on a need-to-know basis and have executed written non-disclosure agreements with Creator/Exhibitor/Vendor containing confidentiality, non-disclosure and non-use terms equivalent in scope and at least as restrictive as those set forth in this Agreement. Creator/Exhibitor/Vendor will be liable for any acts or omissions by any such authorized persons. Creator/Exhibitor/Vendor shall not make copies of such Confidential Information except as authorized by EQ or in the ordinary course of the provision of Services.
3.2 Confidential Information. Creator/Exhibitor/Vendor understands that “Confidential Information” means any and all information and physical manifestations thereof not generally known or available outside EQ and information and physical manifestations thereof entrusted to EQ in confidence by third parties, that is disclosed by or on behalf of EQ during the term of the Relationship, or that Creator/Exhibitor/Vendor obtains from EQ or from third parties on behalf of EQ or otherwise obtains or accesses in connection with, or as a result of, the Services during the term of the Relationship, whether or not during working hours and whether or not such information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without limitation: (i) EQ Works (as defined below); and (ii) technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, works, patent applications, agreements with third parties, lists of, or information relating to, employees and Creator/Exhibitor/Vendors of EQ (including, but not limited to, the names, contact information, jobs, EQ, and expertise of such employees and Creator/Exhibitor/Vendors), lists of, or information relating to, suppliers and customers (including, but not limited to, customers of EQ on whom Creator/Exhibitor/Vendor called or with whom Creator/Exhibitor/Vendor became acquainted during the Relationship), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets, or other business information disclosed to Creator/Exhibitor/Vendor by EQ either directly or indirectly, whether in writing, electronically, orally, or by observation.
3.3 Third Party Information. Creator/Exhibitor/Vendor’s agreements in this Section 4 are intended to be for the benefit of EQ and any third party that has entrusted information or physical material to EQ in confidence. During the term of the Relationship and thereafter, Creator/Exhibitor/Vendor will not improperly use or disclose to any confidential, proprietary, or secret information of Creator/Exhibitor/Vendor’s former clients or any other person or entity, and Creator/Exhibitor/Vendor will not bring any such information onto Company’s property or place of business.
3.4 Exceptions. The obligations set forth in Section 4(a) will not apply with respect to any information, other than personally identifiable information, to the extent such information (i) is or has become in the public domain or generally publicly available other than by any act or omission of Creator/Exhibitor/Vendor, its employees, contractors, or other representatives (whether authorized under Section 4(a) or not); (ii) was rightfully known by Creator/Exhibitor/Vendor prior to the time of first disclosure by EQ; or (iii) is rightfully obtained without restriction from a third party who has the right to make such disclosure and without breach of any duty of confidentiality to EQ.
3.5 Other Rights. This Agreement is intended to supplement, and not to supersede, any rights EQ may have in law or equity with respect to the protection of trade secrets or confidential or proprietary information.
3.6 U.S. Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S. Defend Trade Secrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, DTSA provides that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
4. Ownership of Works. [INTENTIONALLY OMITTED]
5. Name and Likeness.
Creator/Exhibitor/Vendor understands that in the course of performing Services with EQ, Creator/Exhibitor/Vendor’s name, likeness, and/or other personal characteristics and information may be recorded or used by or on behalf of EQ. As such, Creator/Exhibitor/Vendor hereby irrevocably permits, authorizes, grants, and licenses to EQ and Company’s licensees, advertising agencies, service providers, distributors, networks, stations, promotion agencies, and fulfillment agencies, and the employees, officers, directors, and agents of each and all of them (collectively, “Authorized Persons”), the rights to (a) record, photograph, videotape, and/or film Creator/Exhibitor/Vendor and/or record Creator/Exhibitor/Vendor’s voice (collectively, “Recordings”); and (b) display, publicly perform, exhibit, transmit, broadcast, reproduce, digitize, modify, alter, edit, adapt, create derivative works, exploit, sell, rent, license, otherwise use, and permit others to use (i) the Recordings, (ii) my name, image, likeness, appearance, voice, professional and personal biographical information, quotes, testimonials, and other personal characteristics and information (collectively, “Likeness”), and (iii) all materials created by or on behalf of EQ that incorporate any of the foregoing in subsections (i) and/or (ii) (collectively, “Materials”) in perpetuity throughout the universe in any medium or format and on any platform or device and through any channel whatsoever now existing or hereafter created, including, without limitation, in and on magazines, brochures and other print publications in advertising and promotional materials, press releases, websites, software applications, mobile applications, electronic, digital, magnetic, and optical media, video and audio recordings, motion pictures, via the internet and other digital transmission or delivery methods, wireless transmission, television broadcast, cablecast, and satellite, home video and video on demand, radio broadcasts, point-of-sale, and for any purpose, including, without limitation, for internal business purposes and for commercial and/or promotional purposes, in connection with the advertisement, publicity, packaging, and/or promotion of the EQ and/or any of Company’s businesses, products, and services, without further consent from or royalty, payment, or other EQ.
6. Creator/Exhibitor/Vendor’S PERSONNEL
6.1 Personnel Used. Creator/Exhibitor/Vendor shall provide and pay for all personnel required for the rendering of such Services in compliance with all applicable laws.
6.2 Prevailing Wage. City law entitles individuals engaged in theatrical or technical services related to presentation of a “Show” on City property to receive the Prevailing Rate of Wages (including fringe benefits or matching equivalents) fixed by the Board of Supervisors, unless the event is free and open to the public or meets any of the other exemptions in San Francisco Administrative Code Section 21C.4(b)(1)(A)-(F). A “Show” means any live act, play, review, pantomime, scene, music, song, dance act, song and dance act, or poetry recitation provided in front of a live audience or recorded for the purpose of later presentation, but shall not include an event where the person solely plays pre-recorded music or pre-recorded performances so long as no other live performance is provided. Theatrical and technical services include, without limitation, those related to rigging, sound, projection, theatrical lighting, videos, computers, draping, carpentry, special effects, and motion picture services. Accordingly, Creator/Exhibitor/Vendor, as a condition of this License, agrees and acknowledges that:
(a) Creator/Exhibitor/Vendor will comply with the obligations in San Francisco Administrative Code Section 21C.4, and will require Creator/Exhibitor/Vendor’s subtenants, contractors, and any subcontractors, to comply with the obligations in Section 21C.4, to pay Prevailing Wage Rates to workers engaged in theatrical and technical services related to a Show in the License Area. In addition, if Creator/Exhibitor/Vendor or its subtenant, contractor (or any subcontractor) fails to comply with these obligations, the City may use all available remedies against Creator/Exhibitor/Vendor to secure compliance and seek redress for workers who provided the services if they do not receive Prevailing Wage Rates.
(b) The City may inspect and/or audit any workplace or job site on property covered by this Agreement or books and papers relating to the events covered by this Event License, and may interview any individual who provides, or has provided, work involving theatrical or technical services in connection with this License.
(c) Creator/Exhibitor/Vendor will give the City (and require any subtenant, contractor or subcontractor who maintains such records to give to the City) immediate access to such workers’ time sheets, payroll records, and paychecks for inspection. For current Prevailing Wage rates, see www.sfgov.org/olse/prevailingwages or call the Office of Labor Standard Enforcement at 415-554-6235.
Creator/Exhibitor/Vendor understands the prevailing wage requirement described above and agrees to comply with it.
6.3 Supervision of Minors.
(a) Records Request. If any person applies for employment or for a volunteer position with Creator/Exhibitor/Vendor in which such applicant would have supervisory or disciplinary power over a minor or any person under such applicant’s care, then Creator/Exhibitor/Vendor shall request from the California Department of Justice records of all convictions or any arrest pending adjudication of such applicant involving the offenses listed in Welfare and Institution Code Section 15660(a), in accordance with the procedures established in California Penal Code Section 11105.3.
(b) Notice Required. If Creator/Exhibitor/Vendor hires an employee or volunteer to provide services to minors at the License Area, and that employee or volunteer has been convicted of an offense specified in Penal Code Section 11105.3(c), then Creator/Exhibitor/Vendor shall comply with Penal Code Section 11105.3(c) and provide written notice to the parents or guardians of any minor who will be supervised or disciplined by the employee or volunteer not less than ten (10) days prior to the day the employee or volunteer begins his or her duties or tasks. Creator/Exhibitor/Vendor shall provide the City with a copy of any such notice at the same time that it provides notice to any parent or guardian, to the extent permitted by law.
6.4 Covenant Not to Discriminate. In the performance of this Event License, Creator/Exhibitor/Vendor covenants and agrees (i) not to discriminate on the basis of the fact or perception of a person’s race, color, creed, religion, national origin, ancestry, age, sex, sexual orientation, gender identity, domestic partner status, marital status, height, weight, disability or Acquired Immune Deficiency Syndrome or HIV status (AIDS/HIV status) against any employee of, any City employee working with, or applicant for employment with Creator/Exhibitor/Vendor, in any of Creator/Exhibitor/Vendor’s operations within the United States, or against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations operated by Creator/Exhibitor/Vendor; and (ii) to comply with the provisions of Sections 12B.2(a), 12B.2(c)(i), and 12C.3 of the San Francisco Administrative Code, all of which provisions are incorporated in this Event License as if fully set forth herein.
6.5 Subcontracts. Creator/Exhibitor/Vendor shall include in all subcontracts relating to the Premises a nondiscrimination clause applicable to such subcontractor in substantially the form of subsection (a) above. In addition, Creator/Exhibitor/Vendor shall incorporate by reference in all subcontracts the provisions of Sections 12B.2(a), 12B.2(c)(k), and 12C.3 of the San Francisco Administrative Code and shall require all subcontractors to comply with such provisions. Creator/Exhibitor/Vendor’s failure to comply with the obligations in this subsection shall constitute a material breach of this Event License.
6.6 NonDiscrimination in Benefits. Creator/Exhibitor/Vendor does not as of the date of this Event License and will not during the Term, in any of its operations in San Francisco or where the work is being performed for the City or elsewhere within the United States, discriminate in the provision of bereavement leave, family medical leave, health benefits, membership or membership discounts, moving expenses, pension and retirement benefits or travel benefits, as well as any benefits other than the benefits specified above, between employees with domestic partners and employees with spouses, and/or between the domestic partners and spouses of such employees, where the domestic partnership has been registered with a governmental entity pursuant to state or local law authorizing such registration, subject to the conditions set forth in Section 12B.2(b) of the San Francisco Administrative Code.
7.1 Notice of Adverse Events. Creator/Exhibitor/Vendor shall notify EQ promptly of (i) any notice of violation or potential violation of governmental requirements or of any substantial defects in the License Area, including but not limited to notice regarding Hazardous Materials, (ii) any damage to the License Area, (iii) any substantial personal injury or property damage suffered or claimed by any tenant or third party on or with respect to the License Area and (iv) any release or handling of Hazardous Materials in connection with an Event. EQ shall promptly forward to Recreation & Park Department any summons, subpoena or other like legal documents served upon EQ relating to actual or alleged potential liability of Recreation & Park Department, EQ and/or the License Area.
7.2 Permits. EQ shall obtain all governmental permits and licenses required to be obtained for the Event. Notwithstanding the foregoing, Creator/Exhibitor/Vendor shall use its reasonable efforts to help assist EQ in obtaining all such permits and licenses. Creator/Exhibitor/Vendor covenants that it will cooperate with all requests of EQ and/or the City that are made in connection with the obtaining of such permits. The required permits and licenses shall include, without limitation, any necessary City permits for special events as required under the City’s Guidelines for Special Events. Creator/Exhibitor/Vendor agrees to provide EQ with a detailed schedule and description of events and activities that will take place during the Event in the License Area well in advance of the Event in order to enable EQ to assist Creator/Exhibitor/Vendor in obtaining all necessary, required and appropriate permits. If such schedule and description are not provided to EQ in a timely manner, EQ shall have no liability to Creator/Exhibitor/Vendor if the necessary permits are not obtained. Furthermore, EQ cannot guarantee that permits required for the Event, or any EQ of an Event, or for Creator/Exhibitor/Vendor’s use of the License Area, will be obtained. The cost of all such permits and licenses shall be the responsibility of Creator/Exhibitor/Vendor. EQ shall have the right to terminate this Event License if Creator/Exhibitor/Vendor is unable to obtain such necessary permits and, in such event, EQ shall retain the Deposit but only to the extent necessary to cover out of pocket expense actually incurred, and Creator/Exhibitor/Vendor shall reimburse EQ for all actual costs incurred by EQ (up to and including the date of termination) in connection with the Event and Creator/Exhibitor/Vendor’s intended use of PFA to the extent not paid out of the Deposit. The remainder of the Deposit shall be returned to Creator/Exhibitor/Vendor.
8. Solicitation of Employees, Creator/Exhibitor/Vendors and Other Parties; Nondisparagement. As described above, Creator/Exhibitor/Vendor acknowledges that Company’s Confidential Information includes information relating to Company’s employees, Creator/Exhibitor/Vendors, customers, and others, and Creator/Exhibitor/Vendor will not use or disclose such Confidential Information except as authorized by EQ in advance in writing. Creator/Exhibitor/Vendor further agrees as follows:
(a) Employees, Creator/Exhibitor/Vendors. During the term of the Relationship, and for a period of twelve (12) months immediately following the termination of the Relationship for any reason, whether with or without cause, Creator/Exhibitor/Vendor shall not, directly or indirectly, solicit any of Company’s employees or Creator/Exhibitor/Vendors to terminate their relationship with EQ, or attempt to solicit employees or Creator/Exhibitor/Vendors of EQ, either for Creator/Exhibitor/Vendor or for any other person or entity.
(b) Other Parties. During the term of the Relationship, Creator/Exhibitor/Vendor will not influence any of Company’s clients, licensors, licensees, or customers from purchasing EQ products or services or solicit or influence or attempt to influence any client, licensor, licensee, customer, or other person either directly or indirectly, to direct any purchase of products and/or services to any person, firm, corporation, institution, or other entity in competition with the businesses of EQ.
Additionally, Creator/Exhibitor/Vendor agrees not to intentionally make, or intentionally cause any other Person to make, any public statement that is intended to criticize or disparage EQ, any of its affiliates, the Event, or any of their respective officers, managers or directors.
9. ADVERTISING; BROADCASTING RIGHTS
Citing and Referencing NPU Inc. Venues. Creator/Exhibitor/Vendor will request prior approval to cite, reference, or display any pictures of The Palace of Fine Arts or other NPU Inc. venues in any media or marketing efforts. If approved, Creator/Exhibitor/Vendor agrees to tag both the SF City Entities and EQ using both of the following social-media handles regardless of social-media platform: @thepalaceoffinearts and @nonplusultrainc and @_________. For media platforms other than social-media, Creator/Exhibitor/Vendor agrees to reference NPU Inc. venues by stating the official venue name directly followed by “a Non Plus Ultra Venue” (i.e. The Palace of Fine Arts a Non Plus Ultra Venue) in all other marketing platforms where an NPU Inc. venue is referenced, cited or picture is posted. EQ and Creator/Exhibitor/Vendor will work together to decide if placing a venue specific logo and NPU Inc. logo in lieu of text is more appropriate for their marketing efforts as needed.
10.1 Assignment Restrictions. Creator/Exhibitor/Vendor may not sell, assign, sublicense, re-license or otherwise transfer this Event License or any of Creator/Exhibitor/Vendor’s rights and obligations hereunder without the prior written consent of EQ, which consent may be withheld in EQ’s sole discretion but only as to financial capability to perform, and the License Area may not be used by anyone other than Creator/Exhibitor/Vendor and Creator/Exhibitor/Vendor’s Invitees (as hereinafter defined). Any attempt by Creator/Exhibitor/Vendor to sell or assign this Event License or any rights hereunder shall constitute a default hereunder and entitle EQ to immediately terminate this Event License. Creator/Exhibitor/Vendor shall not be released from its obligations hereunder in the event of any permitted assignment by Creator/Exhibitor/Vendor. EQ may assign this Event License without the consent of Creator/Exhibitor/Vendor but must give Creator/Exhibitor/Vendor written notice of such assignment.
11. DAMAGE AND DESTRUCTION
11.1 Damage Liability. Creator/Exhibitor/Vendor shall be liable to EQ for the cost of repairing any damage caused by any act or omission of Creator/Exhibitor/Vendor, and/or any damage caused by any of the patrons or visitors during the Event, or caused by any of Creator/Exhibitor/Vendor’s owners, employees, agents, performers, contractors, or Creator/Exhibitor/Vendors and any other person who is a guest or invitee of Creator/Exhibitor/Vendor (collectively, “Creator/Exhibitor/Vendor’s Invitees”).
11.2 Property Owned by Creator/Exhibitor/Vendor. EQ shall have no liability for loss of any property owned by or under the control of Creator/Exhibitor/Vendor or any of Creator/Exhibitor/Vendor’s Invitees located at or placed on, in or around the License Area that is damaged, destroyed or otherwise lost or stolen unless such damage, destruction or loss was caused in whole or in part by the negligence or willful misconduct of EQ or its employees or agents, representatives or contractors.
12.1 Insurance for the Event. Creator/Exhibitor/Vendor, and its agents, Creator/Exhibitor/Vendors, contractors and subcontractors, shall maintain in full force and effect, at the sole cost and expense of each, the following:
(a) General Liability Insurance with limits not less than Two Million Dollars
($2,000,000) each occurrence Combined Single Limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Independent Creator/Exhibitor/Vendor’s, Explosion, Collapse and Underground (XCU), Broadform Property Damage, Sudden and Accidental Pollution, Products Liability and Completed Operations. If the operation of Creator/Exhibitor/Vendor’s business includes food sales, such coverage shall include Food Products Liability Insurance with limits not less than One Million Dollars ($1,000,000) each occurrence. If the operation of Creator/Exhibitor/Vendor’s business includes the sale of alcoholic beverages, such coverage shall include legal liquor liability coverage with limits not less than One Million Dollars ($1,000,000) each occurrence. Policy must be endorsed to name as Additional Insured EQ, and the City and County of San Francisco, its Officers, Agents, and Employees.
(b) Commercial Automobile Liability Insurance with limits not less than One Million
Dollars ($1,000,000) each occurrence Combined Single Limit for Bodily Injury and Property Damage, including coverages for owned, non-owned and hired automobiles, as applicable, and Sudden and Accidental Pollution.
(c) Workers’ Compensation Insurance with Employer’s Liability Coverage with limits
of not less than One Million Dollars ($1,000,000) each accident. The Workers’ EQ policy (ies) shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.
(d) During any construction or improvement work, such additional insurance as may
be required by City, including Builders Risk Insurance on an “All Risk” basis with limits approved by the General EQ.
(e) All liability policies required hereunder shall provide for the following: (i) name as
additional insureds the City and County of San Francisco, its officers, agents and employees; and (ii) specify that such policies are primary insurance to any other insurance available to the additional insureds, with respect to any claims arising out of this Permit and that insurance applies separately to each insured against whom claim is made or suit is brought. Such policies shall also provide for severability of interests and that an act or omission of one of the named insureds which would void or otherwise reduce coverage shall not reduce or void the coverage as to any insured, and shall afford coverage for all claims based on acts, omissions, injury or damage which occurred or arose (or the onset of which occurred or arose) in whole or in part during the policy period.
All insurance policies required to be maintained by Creator/Exhibitor/Vendor’s hereunder shall be endorsed to provide for thirty (30) days’ prior written notice of cancellation for any reason, non-renewal or reduction in coverage to both Creator/Exhibitor/Vendor’s and City. Notice to City shall be mailed to the address (es) for City set forth in Section 37 (Notices).
(f) Creator/Exhibitor/Vendor’s shall deliver to EQ certificates of insurance and additional
insured policy endorsements from insurers in a form satisfactory to EQ, evidencing the coverages required hereunder, together with complete copies of the policies at City’s request, no later than ten (10) business days before Creator/Exhibitor/Vendor is granted access to PFA. In the event Creator/Exhibitor/Vendor fails to procure such insurance, or to deliver such policies or certificates, EQ may procure, at its option, the same for the account of Creator/Exhibitor/Vendor’s, and the cost thereof shall be paid to EQ within five (5) days after delivery to Creator/Exhibitor/Vendor of bills therefor. Failure to maintain insurance shall constitute a material breach of this License Agreement.
(g) Should any of the required insurance be provided under a form of coverage that
includes a general annual aggregate limit or provides that claims investigation or legal defense costs be included in such general annual aggregate limit, such general aggregate limit shall double the occurrence or claims limits specified above.
(h) Should any of the required insurance be provided under a claim made form,
Creator/Exhibitor/Vendor’s shall maintain such coverage continuously throughout the term of this Permit and, without lapse, for a period of three (3) years beyond the Permit expiration, to the effect that, should any occurrences during the Permit term give rise to claims made after expiration of the Permit, such claims shall be covered by such claims-made policies.
(i) Upon City’s request, Creator/Exhibitor/Vendor’s and City shall periodically review the limits
and types of insurance carried pursuant to this Section. If the general commercial practice in the City and County of San Francisco is to carry liability insurance in an amount or coverage materially greater than the amount or coverage then being carried by Creator/Exhibitor/Vendor’s for risks comparable to those associated with the License Area, then City in its sole discretion may require Creator/Exhibitor/Vendor’s to increase the amounts or coverage carried by Creator/Exhibitor/Vendor’s hereunder to conform to such general commercial practice.
(j) Approval of any insurance by EQ shall not relieve or decrease the liability of
(k) If a subcontractor will be used to complete any portion of this Permit, the Event
Sponsor’s shall ensure that the subcontractor shall provide all necessary insurance and shall name EQ, the City and County of San Francisco, its officers, agents, and employees and the Creator/Exhibitor/Vendor’s listed as additional insureds.
(l) Creator/Exhibitor/Vendor’s compliance with the provisions of this Section shall in no way
relieve or decrease Creator/Exhibitor/Vendor’s indemnification obligations under this Permit or any of Creator/Exhibitor/Vendor’s other obligations hereunder. Notwithstanding anything to the contrary in this Permit, this Permit shall terminate immediately, without notice to Creator/Exhibitor/Vendor’s, upon the lapse of any required insurance coverage. Creator/Exhibitor/Vendor’s shall be responsible, at its expense, for separately insuring Creator/Exhibitor/Vendor’s personal property.
12.2 Insurance to be Provided by Creator/Exhibitor/Vendor. During the Use Term, Creator/Exhibitor/Vendor shall maintain in force, at its own cost and expense, the following policies of insurance:
(i) Two Million Dollars ($2,000,000) Commercial General Liability with an insurance carrier rated A-VII or better by A.M. Best (covering claims made due to personal injury, bodily injury and property damage occurring in or about the Premises as a result of the operations of the EQ or a defect in the physical structure of the Premises) on a primary basis; coverages shall include broad form personal injury, broad form advertising injury; broad form contractual liability; broad form liquor liability and automobile coverage for owned, non-owned and hired vehicles.
(ii) Workers’ Compensation Insurance with Employer’s Liability Coverage with limits of not less than One Million Dollars ($1,000,000) each accident. The Workers’ Compensation policy (ies) shall be endorsed with a waiver of subrogation in favor of the Creator/Exhibitor/Vendor for all work performed by the EQ, its employees, agents and subcontractors.
EQ’s Commercial General Liability shall be in such form and shall be taken in such amounts and with such EQ as Creator/Exhibitor/Vendor shall approve. All liability policies shall name Creator/Exhibitor/Vendor and all of its parent, subsidiary, affiliated and related persons and entities and all of the officers, directors, shareholders, EQs, members, employees, agents and representatives of the foregoing, as additional insureds and shall require at least 10 days written notice to Licensor prior to cancellation or modification thereof. Policies or certificates therefore (including proof of payment) shall be delivered to Licensor no less than thirty (30) days prior to Engagement.
13. INDEMNIFICATION REGARDING LICENSE AREA OPERATIONS
13.1 Creator/Exhibitor/Vendor shall indemnify, hold harmless and defend EQ and each of its respective affiliates, members, companies, partners, parents, officers, directors, shareholders, agents, employees, mortgages and successors, and each of the City Parties and all of their respective boards, commissions, departments, agencies, and other subdivisions, and their respective agents (EQ, the City Parties and the foregoing are herein referred to as the “Indemnified Parties”) from, and, shall defend them, without cost to the Indemnified Parties, against any and all Claims (including reasonable attorneys’ fees of counsel reasonably satisfactory to EQ), including Claims or causes of action made or brought by any person, and Claims with respect to property damage or personal injury of every nature whatsoever and in any manner arising directly or indirectly out of or incident to or in connection with (a) Creator/Exhibitor/Vendor’s or any of Creator/Exhibitor/Vendor’s Invitees’ actions, omissions to act, or negligence in, on or about the License Area or any other City property, (b) Creator/Exhibitor/Vendor’ s or any of Event Sponsor’s Invitees’ breach of any covenant contained in this Event License, use, occupancy or operation of or access to the License Area or any part thereof by Creator/Exhibitor/Vendor or Creator/Exhibitor/Vendor’s Invitees, (c) Creator/Exhibitor/Vendor’s failure to comply with any applicable Law, rule, regulation, directive or order in respect of the License Area, including, without limitation, Hazardous Material Laws or Disabled Access Laws, (d) any accident, injury or death of any person, including any of Creator/Exhibitor/Vendor’s Invitees, or loss or damage to or destruction of any property occurring in, on or about the License Area or other City property, (e) any and all Hazardous Material Claims arising during or from Creator/Exhibitor/Vendor’s or Creator/Exhibitor/Vendors’ Invitees’ use, occupancy or operation of or access to the License Area or any part thereof or (f) any labor disruption or discord with labor supplied by Creator/Exhibitor/Vendor with respect to or otherwise in connection with the Event, provided however, that such indemnity obligations shall not apply to the extent the Claim or Claims were caused by the negligence or willful misconduct of any of the NPU Indemnified Parties.
13.2 Claims. As used herein, “Claims” means all liabilities, injuries, losses, costs, claims, demands, rights, causes of action, judgments, settlements, damages, liens, fines, penalties and expenses, including without limitation, direct and vicarious liability of any kind for money damages, EQ, penalties, liens, fines, interest, attorneys’ fees, costs, equitable relief, mandamus relief, specific performance, or any other relief.
13.3 Exculpation. Creator/Exhibitor/Vendor, as a material part of the consideration to be rendered to Creator/Exhibitor/Vendor, hereby waives any and all Claims against the Indemnified Parties, and agrees to Indemnify the Indemnified Parties from any Claims for damages to goods, wares, goodwill, merchandise, equipment or business opportunities and by persons in, upon or about License Area or any other City property for any cause arising at any time, including without limitation all Claims arising from the joint or concurrent, active or passive, negligence of the Indemnified Parties, but excluding Claims to the extent caused by any negligence or willful misconduct committed by the NPU Indemnified Parties.
13.4 Survivability. All indemnity obligations and exculpation provisions hereunder shall survive expiration or termination of this Event License.
13.5 The City Parties are a third-party beneficiary of this Section 13, and may rely upon and enforce its provisions directly against Creator/Exhibitor/Vendor.
14. DEFAULT BY Creator/Exhibitor/Vendor
14.1 Creator/Exhibitor/Vendor will be in default hereunder if Creator/Exhibitor/Vendor fails to comply with any of the other terms and conditions of this Agreement.
14.2 Remedies. If Creator/Exhibitor/Vendor defaults under this Event License, then, at the sole option of EQ, EQ may, with or without notice, (a) terminate this Event License and revoke the License and (b) exercise all other rights and remedies available to EQ at law or in equity on account of such default, and EQ shall be entitled to recover all damages, including, without limitation, all direct, indirect, consequential and special damages, regardless of whether such damages were foreseeable or unforeseeable. EQ shall also be entitled to recover (c) all costs incurred by it in connection with collection of any amounts owing by Creator/Exhibitor/Vendor, including, without limitation, reasonable attorneys’ fees. If this Event License is terminated in accordance with this Section 13.3, the License Fee shall not be refunded to Creator/Exhibitor/Vendor. In addition, Creator/Exhibitor/Vendor shall pay EQ for all Event-related expenses incurred and other reimbursable expenses incurred by EQ before and after the Event is cancelled which are attributed to the Event and Creator/Exhibitor/Vendor’s intended use of the License Area. Notwithstanding anything contained herein to the contrary, in the case of any breach by Creator/Exhibitor/Vendor, EQ shall not terminate this Event License unless Creator/Exhibitor/Vendor fails to cure such default within twenty-four hours from the notice of such default, or if such default is not susceptible to a cure within such twenty-four hour period, then as soon as is reasonably possible, but in no event more than ten (10) business days.
15. RELATIONSHIP OF PARTIES AND EMPLOYMENT TAXES
15.1 Relationship. EQ on the one hand and Creator/Exhibitor/Vendor on the other are independent contractors, and nothing contained in this Event License will be construed as establishing an employer-employee or other agency relationship, partnership, or joint venture between them. Notwithstanding anything to the contrary herein, at all times, Creator/Exhibitor/Vendor shall retain the control of the manner and means of its operations as they relate to the Event.
15.2 Creator/Exhibitor/Vendor’s Employment Taxes. As between EQ and Creator/Exhibitor/Vendor, Creator/Exhibitor/Vendor shall provide for and hereby assumes full and exclusive liability for the payment of any contributions or taxes for social security, worker’s compensation insurance, unemployment insurance, or retirement benefits, pensions or annuities now or hereafter imposed under any state or federal law which are measured by the wages, salaries or other remuneration paid to any employees of Creator/Exhibitor/Vendor or independent contractors engaged by Creator/Exhibitor/Vendor for work performed under the terms of this Event License. Creator/Exhibitor/Vendor agrees that at no time shall any persons employed by Creator/Exhibitor/Vendor or independent contractors engaged by Creator/Exhibitor/Vendor be considered employees or independent contractors of EQ. EQ shall have no liability for such employees and/or independent contractors and Creator/Exhibitor/Vendor shall notify all such employees and independent contractors of the non-liability of EQ in the event of a claim to the contrary. Creator/Exhibitor/Vendor shall indemnify, hold harmless and defend each of the Indemnified Parties and their respective affiliates, members, EQs, partners, parents, officers, directors, shareholders, agents and employees from and against any such liability for contributions, taxes, payments or other obligations related to employees or independent contractors of Creator/Exhibitor/Vendor.
15.3 Creator/Exhibitor/Vendor’s Employment Taxes. As between EQ and Creator/Exhibitor/Vendor, Creator/Exhibitor/Vendor shall provide for and hereby assumes full and exclusive liability for the payment of any contributions or taxes for social security, worker’s compensation insurance, unemployment insurance, or retirement benefits, pensions or annuities now or hereafter imposed under any state or federal law which are measured by the wages, salaries or other remuneration paid to any employees of Creator/Exhibitor/Vendor or independent contractors engaged by Creator/Exhibitor/Vendor for work performed under the terms of this Event License. Creator/Exhibitor/Vendor agrees that at no time shall any persons employed by Creator/Exhibitor/Vendor or independent contractors engaged by Creator/Exhibitor/Vendor be considered employees or independent contractors of EQ. EQ shall have no liability for such employees and/or independent contractors and Creator/Exhibitor/Vendor shall notify all such employees and independent contractors of the non-liability of EQ and the City Parties in the event of a claim to the contrary. EQ shall indemnify, hold harmless and defend Creator/Exhibitor/Vendor and City Parties from and against any such liability for contributions, taxes, payments or other obligations related to employees or independent contractors of Creator/Exhibitor/Vendor.
15.4 Third Parties. Nothing in this Article 14 is intended to create any third-party reliance between EQ and any third party or Creator/Exhibitor/Vendor and any third party.
16. GOOD FAITH NEGOTIATION AND ARBITRATION
16.1 Good Faith Negotiation and Arbitration.
16.1.1 Good Faith Negotiation. If a controversy, dispute or claim of whatever nature arising out of, in connection with, or in relation to the interpretation, performance or breach of this Event License arises between the parties hereto, the parties shall first attempt to resolve such matter through good faith negotiation.
16.1.2 Arbitration. If not settled by good faith negotiation between the parties within thirty (30) days from the date one party requests in writing to meet with the other party to resolve the matter by good faith negotiation (or the date that the parties first meet to attempt to resolve the matter by good faith negotiation, whichever occurs first), any controversy, dispute or claim of whatever nature arising out of, in connection with, or in relation to the interpretation, performance or breach of this Event License, including any claim based on contract, tort, equity or statute and including the determination of the interpretation or scope of the parties’ agreement to arbitrate, shall be settled at the request of any party to this Event License by final and binding arbitration conducted in the City and County of San Francisco, California, administered by and in accordance with the Streamlined Arbitration Rules and Procedures of J.A.M.S./Endispute or, if such rules no longer exist, the then existing rules of practice and procedure of J.A.M.S./Endispute (both sets of rules are collectively referred to as the “Rules of J.A.M.S./Endispute”), and judgment upon any award rendered by the arbitrator may be entered by any state or federal court having jurisdiction thereof. The parties shall not be bound by any decision of the Arbitrator that is against law. The arbitrator shall be a retired California or federal judge selected in accordance with the Rules of J.A.M.S./Endispute. The arbitrator and not a jury will decide the dispute.
16.1.3 Discovery. Discovery in any arbitration shall be permitted but it shall be limited to a reasonable number of depositions, not to exceed three (3) per each party, and the exchange of documents and witness lists.
16.1.4 Power of Arbitrator. The arbitrator in an arbitration proceeding shall have the
power to award damages or grant remedies that would otherwise be available under California law in a California state court having jurisdiction of the matter but shall not have the power to award any other damages or grant any other relief, and shall not have the power to award punitive damages against any party or to vary the provisions of this Event License. The arbitrator shall determine which is the prevailing party and shall include in the award that party’s reasonable attorneys’ fees and expenses and the costs and fees of arbitration, including the fees of J.A.M.S./Endispute.
16.1.5 Confidentiality. Except as otherwise required by law, the parties agree that the arbitration procedure will be confidential, all conduct, statements, promises, offers, views and opinions, oral or written, made during the arbitration by any party or a party’s agent, employee or attorney will remain confidential and, where appropriate, will be considered work product and privileged, and the existence and the results of the arbitration will be maintained by the parties and their respective agents, employees and attorneys as confidential at all times.
16.1.6 Successor to J.A.M.S./Endispute. In the event that J.A.M.S./Endispute is no
longer in existence at the time that arbitration is requested, the dispute shall be submitted to arbitration in accordance with the rules and procedures of the successor to J.A.M.S./Endispute or, if there is no such successor, the matter shall be submitted to an organization that consists of members similar to J.A.M.S./Endispute or its successor.
17.1 Governing Law. This Event License is made in and is to be performed in the State of California and shall, for all purposes, be governed by the laws of said state without reference to conflicts of law principles.
17.2 Time. Time is of the essence of this Event License.
17.3 No Waiver. No delay or omission in the exercise of any right, power or remedy accruing to any party under this Event License shall impair any such right, power or remedy, nor shall it be construed as a waiver of any future exercise of any right, power or remedy. Any waiver by one party of a breach by the other party shall not be, or be construed to be, a waiver of any subsequent breach. No waiver shall be implied and each and every waiver of any kind of any provision or condition of this Event License must be in writing and signed by the party granting such waiver.
17.4 Notice. Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be personally delivered or mailed by certified mail, return receipt requested, to the addresses set forth herein, or sent by facsimile to the appropriate facsimile number specified below. Notices shall be effective upon receipt; provided, however, that if a notice is mailed, it shall be deemed to have been received on the third day after mailing. The parties hereto may change the address and facsimile number as to which notices are to be sent by written notice in accordance with the terms of this section.
17.5 Payments. Any amounts payable under this Agreement shall be paid in lawful money of the United States of America.
17.6 Copyrights, Trademarks and Royalties. Creator/Exhibitor/Vendor warrants and represents that it will report and pay all live performance organization royalties due in connection with the Event, if any, through its trade association agreements with each of ASCAP, BMI and SESAC. Creator/Exhibitor/Vendor shall comply strictly with all laws respecting copyrights, trademarks and royalties and warrants that it will not knowingly infringe any related statutory, common law or other right of any persons during or in connection with the Event. Creator/Exhibitor/Vendor shall indemnify, hold harmless and defend each of the Indemnified Parties from and against all costs (including reasonable attorneys’ fees of counsel reasonably satisfactory to EQ), damage, injury, liability, claims, demands, taxes, penalties and causes of actions, including claims or causes of action made or brought by any person of every nature whatsoever with respect to such copyright, trademark or royalty rights unless such claims arise from the negligence or willful misconduct of EQ, its agents, employees, representatives or contractors. The indemnity obligation hereunder shall survive expiration or termination of this Event License.
17.7 Force Majeure. Neither EQ nor Creator/Exhibitor/Vendor shall be obligated to perform any term or condition of this Event License on its part to be performed during the period such performance is prevented by matters or conditions beyond the reasonable control of the parties, including but not limited to war (including hostilities with or without a formal declaration of war), terrorist act or threat of a terrorist act, public emergency or calamity, act of God (e.g. earthquake, fire, flood, severe inclement weather), strikes or other labor disputes, civil disturbances or riots, city-wide blackout, or any governmental restrictions (hereinafter called “Force Majeure”). If performance is prevented by reason of Force Majeure and the Event cannot be presented because of such Force Majeure and the parties cannot mutually agree on the rescheduling of the Event, this Event License shall terminate as of the date it is determined that the Event cannot be rescheduled. Following termination by either party under this Section 16.7, EQ shall return to Creator/Exhibitor/Vendor the Deposit less all actual expense actually incurred by EQ in connection with the Event and Creator/Exhibitor/Vendor’s intended use of the License Area without further liability or obligation, and Creator/Exhibitor/Vendor shall have no further right to use the License Area hereunder. All ticket proceeds received by EQ (if applicable) and/or Creator/Exhibitor/Vendor shall be refunded to the ticket purchasers. The parties agree that material damage to the License Area caused by any reason other than a Force Majeure event as contemplated under Section 11.1 shall not constitute an event of Force Majeure and that the terms of Section 11.1 shall govern in the event of such material damage.
17.8 Presence of Hazardous Materials. Creator/Exhibitor/Vendor is hereby advised that Hazardous Materials (as herein defined) may be present on or near the License Area, including but not limited to vehicle fluids, janitorial products, tobacco smoke, and building materials containing chemicals such as lead and formaldehyde. Further, the following known Hazardous Materials are present on the property: the Hazardous Materials described in the City’s listed on the attached Schedule 2, copies of which are available to Creator/Exhibitor/Vendor at its request.
17.9 City’s Zero Waste Policy. Creator/Exhibitor/Vendor agrees to comply fully with and be bound by all the provisions of the City’s Zero Waste Policy, a copy of which is attached hereto as Exhibit E. For purposes of this provision, the City’s Zero Waste Policy shall constitute a Law as defined in Section 1.4(e) hereof.
17.10 Food Service Waste Reduction Ordinance. Creator/Exhibitor/Vendor agrees to comply fully with and be bound by all of the provisions of the Food Service Waste Reduction Ordinance, as set forth in Environment Code Chapter 16, including the remedies provided, and implementing guidelines and rules. By entering into this Event License, Creator/Exhibitor/Vendor agrees that if it breaches this provision, the City will suffer actual damages that will be impractical or extremely difficult to determine; further, Creator/Exhibitor/Vendor agrees that the sum of one hundred dollars ($100.00) liquidated damages for the first breach, two hundred dollars ($200.00) liquidated damages for the second breach in the same year, and five hundred dollars ($500.00) liquidated damages for subsequent breaches in the same year is a reasonable estimate of the damage that the City will incur based on the violation, established in light of the circumstances existing at the time this Event License was entered into. Such amounts shall not be considered a penalty, but rather agreed monetary damages sustained by the City because of Creator/Exhibitor/Vendor’s failure to comply with this provision.
17.11 Notification of Asbestos. EQ hereby notifies Creator/Exhibitor/Vendor, in accordance with the United States Occupational Safety and Health Administration (“OSHA”) Asbestos Rule (1995), 59 Fed. Reg. 40964, 29 CFR §§ 1910.1001, 1926.1101 (as amended, clarified and corrected) (OSHA Asbestos Rule); California Health and Safety Code §§ 25915-259.7 and the Division of Occupational Safety and Health of the California Department of Industrial Relations (“Cal-OSHA”) General Industry Safety Order for Asbestos, 8 CCR § 5208, of the presence of asbestos-containing materials (“ACMs”) and/or presumed asbestos-containing materials (“PACMs”) (as such terms are defined in Cal-OSHA General Industry Safety Order for Asbestos), in the locations identified in the summary/table, if any, set forth in Schedule 1 attached hereto. This notification by EQ is made pursuant to a building inspection survey(s), if any, performed by the City or its contractors qualified to perform an asbestos building survey identified in the summary/table, if any, set forth in Schedule 1. Such survey(s), monitoring data and other information are kept at the City of San Francisco, and are available for inspection upon request. Creator/Exhibitor/Vendor hereby acknowledges receipt of the notification specified in the first paragraph of this Section 17.11 and the notice or City attached as Schedule 1 and understands, after having consulted its legal counsel, that it must make its employees and contractors aware of the presence of ACMs and/or PACMs in or about the License Area in order to avoid or minimize any damage to or disturbance of such ACMs and/or PACMs. Creator/Exhibitor/Vendor further acknowledges its obligations under Cal-OSHA General Industry Safety Order for Asbestos to provide information to its employees and contractors regarding the presence of ACMs and PACMs at the License Area and to provide a training program for its employees that conforms with 8 CCR § 5208(j)(7)(C).
Creator/Exhibitor/Vendor agrees that its waiver of Claims set forth in Section 13.4 above is given with full knowledge of the presence, or possibility, of asbestos in or about the License Area and the potential consequences of such fact. Creator/Exhibitor/Vendor is aware that the presence, or possibility, of asbestos in or about the License Area may limit Creator/Exhibitor/Vendor’s ability to construct alterations to the License Area without Creator/Exhibitor/Vendor first performing abatement of such asbestos. The presence of asbestos in or about the License Area and the removal or non-removal by City of all or a portion of the asbestos in the License Area or elsewhere shall not, however, (i) entitle Creator/Exhibitor/Vendor to any Claim, (ii) relieve Creator/Exhibitor/Vendor of any of its obligations hereunder, including without limitation the obligation to pay the License Fee, or (iii) constitute or be construed as a constructive or other eviction of Creator/Exhibitor/Vendor. Notwithstanding any other provisions of this Event License, Creator/Exhibitor/Vendor agrees to defend and indemnify the Indemnified Parties for Creator/Exhibitor/Vendor’s acts or omissions that result in (1) asbestos-related enforcement actions, including both administrative or judicial proceedings, and (2) any Claims arising from an alleged violation of Cal-OSHA General Industry Safety Order for Asbestos and/or exposures to asbestos.
17.12 Notification of Lead. EQ hereby notifies Creator/Exhibitor/Vendor of the potential presence of lead-containing and presumed lead-containing materials in the License Area. Disturbance or removal of lead is regulated by among other Laws, 29 CFR §§ 1910.1025, 1926.62; California Health & Safety Code §§ 105185-105197 and 105250-105257; Cal-OSHA Construction Safety Order for Lead, Title 8 CCR § 1532.1; Title 17 CCR Chapter 8; and San Francisco Building Code § 3423.
Creator/Exhibitor/Vendor acknowledges the presence, or possibility, of lead in or about the License Area and the potential consequences of such fact. Creator/Exhibitor/Vendor is aware that the presence, or possibility, of lead in or about the License Area may limit Creator/Exhibitor/Vendor’s ability to perform any improvements or alterations to the License Area without Creator/Exhibitor/Vendor first performing abatement of such lead. The presence of lead in the License Area and the removal or non-removal by City of all or a portion of the lead, whether in the License Area or elsewhere, shall not, however, (i) entitle Creator/Exhibitor/Vendor to any Claim, (ii) relieve Creator/Exhibitor/Vendor of any of its obligations hereunder, including without limitation the obligation to pay the License Fee, or (iii) constitute or be construed as a constructive or other eviction of Creator/Exhibitor/Vendor. Notwithstanding any other provisions of this Event License, Creator/Exhibitor/Vendor agrees to defend and indemnify the Indemnified Parties for its acts or omissions that result in (1) lead-related enforcement actions, including both administrative or judicial proceedings, and (2) any Claims arising from an alleged violation of Cal-OSHA Construction Safety Order for Lead and/or exposures to lead.
17.13 Attorneys’ Fees. If any party to this Event License institutes any legal action or proceeding to enforce, protect or establish any right or remedy arising out of this Event License the prevailing party shall be entitled to recover from the other party all expenses of arbitration and/or litigation, including reasonable attorneys’ fees and costs incurred in such action or proceeding, and any such expenses and costs of any appeals taken from such action or proceeding.
17.14 Subordination. [intentionally left blank]
17.15 Binding Effect. This Event License shall bind and inure to the benefit of the parties and their permitted successors and assigns.
17.16 Integrated Agreement; Amendment. This Event License sets forth the entire agreement between the parties as to the subject matter herein and supersedes all prior correspondence, understandings or agreements, whether oral or written. This Event License may only be amended by a written agreement signed by the parties hereto and specifically referring to this Event License.
17.17 Confidentiality. The parties agree that no party shall release any information regarding the terms of this Event License to any third party, except (1) as mutually agreed for purposes of publicity, (2) to their respective legal and financial advisers, (3) to their partners, members or shareholders, (4) to their lenders and prospective investors and (5) as otherwise required by law or formal legal proceeding. All confidentiality obligations in this Event License shall survive the expiration or termination of this Event License.
17.18 Invalidity. If any provision of this Event License shall be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of all other provisions of this Event License, shall not be affected or impaired.
17.19 Authority. EQ and Creator/Exhibitor/Vendor each represents and warrants to the other that it has all requisite authority and has taken all necessary action to enter into this Event License and fulfill its obligations hereunder; and that the person signing this Event License on behalf of it is authorized to do so.
17.20 Prohibition of the Sale of Lottery Tickets. The selling of any lottery tickets on the Premises (including the License Area) is expressly prohibited.
17.21 Balloons. Mylar or helium filled balloons are not allowed on the property. Other balloons may be used, but may not be released. Balloon may not be tied, taped or tacked to trees, vegetation, tables, benches, walls or ceilings.
17.22 Rides, piñatas, water slides and adventure games. Rides, piñatas, water slides and adventure games are not allowed inside or outside the facilities or in any park. This includes, but is not limited to, train rides, pony rides, hamster wheels, scavenger hunts, laser tag, rock walls, bullrides, water games, dunk tanks and video game trailers.
17.23 Petting zoos. Petting zoos require prior approval by the Permits & Reservations office and must be noted on the permit prior to the event. A CA licensed veterinarian must accompany the animals at all times.
17.24 Inflatables/jump houses. Inflatables/jump houses are not allowed on the property without prior approval from Permits & Reservations. Inflatable jumpers are not allowed inside SFRP facilities, a suitable outdoor area must be reserved. The inflatable Creator/Exhibitor/Vendor is required to provide proof of $1 Million Liability Insurance, naming as additionally insured.
17.25 Vehicle Restrictions. Vehicles may not drive or park on walkways, service roads, paths or grass areas, not even for unloading or loading supplies, food, beverages and people. Vehicles must be parked on the main roads and abide by posted parking rules. Creator/Exhibitor/Vendoris advised to arrive early to secure a parking space.
17.26 Dogs. Dog are not allowed inside facilities except service dogs with documentation. Guardians must carry documentation with them and provide and carry waste bags to pickup animal waste.
17.27 Food trucks or carts Permit Required. Food trucks or carts are not allowed on the property without prior approval from Permits & Reservations. Please discuss your plans for a food truck or cart with Permits & Reservations representatives. Food trucks may not drive or park on walkways, service roads, paths or grass areas. Food trucks must stay on streets and abide by posted parking rules. Food truck parking and accessibility are not guaranteed. Creator/Exhibitor/Vendor is liable for any property damage caused by food truck or cart. Creator/Exhibitor/Vendors are not allowed to service anyone outside your group. Exchange of payment on site for goods or services is prohibited.
17.28 MacBride Principles Northern Ireland. The City and County of San Francisco urges EQ doing business in Northern Ireland to move toward resolving employment inequities and encourages them to abide by the MacBride Principles as expressed in San Francisco Administrative Code Section 12F.1, et seq. The City and County of San Francisco also urges San Francisco EQ to do business with corporations that abide by the MacBride Principles. Creator/Exhibitor/Vendoracknowledges that it has read and understands the above statement of the City and County of San Francisco concerning doing business in Northern Ireland.
17.29 Tropical Hardwood and Virgin Redwood Ban. Creator/Exhibitor/Vendor shall not permit the use of any tropical hardwood, tropical hardwood wood product, virgin redwood, or virgin redwood wood product in or on the Premises or otherwise in the performance of this Event License. The City and County of San Francisco urges EQ not to import, purchase, obtain or use for any purpose, any tropical hardwood, tropical hardwood wood product, virgin redwood, or virgin redwood wood product. In the event Creator/Exhibitor/Vendor fails to comply in good faith with any of the provisions of Section 12I of the San Francisco Administrative Code, Creator/Exhibitor/Vendor shall be liable for liquidated damages for each violation in any amount equal to Subtenant’s net profit on the contract, or five percent (5%) of the total amount of the contract dollars, whichever is greatest. Creator/Exhibitor/Vendor acknowledges and agrees that the liquidated damages assessed shall be payable to the City and County of San Francisco upon demand and may be set off against any monies due to Creator/Exhibitor/Vendor from any contract with the City and County of San Francisco.
17.30 Employee Signature Authorization Ordinance. City has enacted an ordinance at Chapter 23, Article VI of its Administrative Code, commencing at Section 23.50 (the “Ordinance”), which may apply to employers of employees in hotel or restaurant projects on City property with more than fifty (50) employees. The terms of the Ordinance are expressly incorporated herein by reference. To the extent Creator/Exhibitor/Vendor or its successors or assigns employs employees in a hotel or restaurant in the Premises within the scope of the Ordinance, Creator/Exhibitor/Vendor hereby agrees as a material condition of this Event License to enter into and abide by a Card Check Agreement with a Labor Organization or Organizations seeking to represent Subtenant’s employees, if and as required by the Ordinance, and to otherwise fully comply with the requirements of the Ordinance. Creator/Exhibitor/Vendor recognizes that, if the Ordinance applies to Subtenant’s operations on the Premises, Creator/Exhibitor/Vendor must enter into a Card Check Agreement with a Labor Organization(s) as specified by the Ordinance before executing this Event License, and that being party to such a Card Check Agreement(s) is a condition precedent of rights or obligations under this Event License.
17.31 Resource Efficiency. Creator/Exhibitor/Vendor acknowledges that the City and County of San Francisco has enacted San Francisco Environment Code Sections 700 to 707 relating to resource efficient buildings and resource efficient pilot projects. Creator/Exhibitor/Vendor hereby agrees that it shall comply with all applicable provisions of such code sections.
17.32 DrugFree Workplace. Creator/Exhibitor/Vendor acknowledges that pursuant to the Federal DrugFree Workplace Act of 1989, the unlawful manufacture, distribution, possession or use of a controlled substance is prohibited on City premises. Creator/Exhibitor/Vendor agrees that any violation of this prohibition by Lessee, its Agents or assigns shall be deemed a material breach of this Lease.
17.33 PreservativeTreated Wood Containing Arsenic. As of July 1, 2003, Creator/Exhibitor/Vendor may not purchase preservative treated wood products containing arsenic in the performance of this Lease unless an exemption from the requirements of Environment Code Chapter 13 is obtained from the Department of Environment under Section 1304 of the Environment Code. The term “preservative treated wood containing arsenic” shall mean wood treated with a preservative that contains arsenic, elemental arsenic, or an arsenic copper combination, including, but not limited to, chromated copper arsenate preservative, ammoniac copper zinc arsenate preservative, or ammoniacal copper arsenate preservative. Creator/Exhibitor/Vendormay purchase preservative treated wood products on the list of environmentally preferable alternatives prepared and adopted by the Department of Environment. This provision does not preclude Creator/Exhibitor/Vendor from purchasing preservative treated wood containing arsenic for saltwater immersion. The term “saltwater immersion” shall mean a pressure treated wood that is used for construction purposes or facilities that are partially or totally immersed in saltwater.
17.34 Exhibits and Schedules. Exhibits and schedules referred to in this Event
License are by such reference incorporated in this Event License as if set forth in full and are made a part of this Event License.
17.35 Counterparts. This Event License may be executed in any number of counterparts, each of which shall be deemed an original, and facsimile, PDF copies and photocopies of signatures shall be as valid as originals.
WAIVER AND RELEASE
In consideration for being granted permission to operate as Creator/Exhibitor/Vendor (“Releasor”, hereunder in Exhibit C) on property owned by the City and County of San Francisco (“City”) at Palace of Fine Arts at 3601 Lyon Street in the City and County of San Francisco (the “Palace of Fine Arts”), on September 13-15, Releasor agrees that the City, EQ and any and all of its officers, directors, agents, employees, contractors, or subcontractors (collectively, the “Released Parties”), shall not be responsible or liable to Releasor for and, to the fullest extent allowed by law, Releasor hereby waives all rights against the Released Parties and releases them from, any and all claims, demands, losses, liabilities, damages, costs, liens, injuries, penalties, fines, lawsuits or other proceedings, including, but not limited to, incidental or consequential damages and attorneys’ fees, relating to any injury, accident or death of any person, or loss or damage to any property (collectively, “Losses”), arising out of or in any way relating to, such operations or Releasor’s entry onto or use of the City Property. Releasor understands that the City makes no representations or warranties, express or implied, regarding the condition of the City Property on which Releasor’s operations will occur and Releasor agrees to enter and operate on the City Property at Releasor’s sole risk.
In executing this Waiver and Release, Releasor has not relied on any representations or warranties as to the safety of the City Property.
GOOD NEIGHBOR POLICY
Creator/Exhibitor/Vendor shall remove from the License Area (including Palace Drive, parking areas used by Creator/Exhibitor/Vendor, and walkways on both sides of the Palace) all debris and refuse resulting from the Event within 12 hours of the conclusion of any Events.
Creator/Exhibitor/Vendor shall prominently display notices in a well-lit place at all entrances to and exits from the License Area urging patrons to leave the License Area and neighborhood in a quiet, peaceful and orderly fashion and urging patrons not to litter or block driveways in the neighborhood.
Creator/Exhibitor/Vendor shall post Event staff at all entrances and exits to the License Area during the period from l 0:00 pm to such time past closing that all patrons have left the License Area. Staff will urge patrons waiting to enter the License Area and those exiting the License Area to respect the quiet and cleanliness of the neighborhood as they walk to their parked vehicle or otherwise leave the area. Creator/Exhibitor/Vendor or its agents shall provide adequate transit first options.
There shall be no noise audible outside the License Area during the daytime or nighttime hours that violate the San Francisco Police Code Section 49 or 2900 et. seq. Further, absolutely no sound from the License Area shall be audible inside any surrounding residences or businesses in violation of San Francisco Police Code Section 2900.
Creator/Exhibitor/Vendor or its agents shall implement other conditions and/or management practices necessary to ensure that management and/or patrons of the License Area maintain the quiet, safety and cleanliness of the License Area and the vicinity of the use, and do not block driveways of neighboring residents or businesses.
Creator/Exhibitor/Vendor or its agents shall take all reasonable measures to ensure the sidewalks adjacent to the License Area are not blocked or unnecessarily affected by patrons or Even staff due to the operations of the License Area and shall provide security whenever patrons gather in the area or on the License Area.
Creator/Exhibitor/Vendor or its agents shall provide a cell phone number to all interested neighbors that will be answered at all times by a EQ or other responsible person who has the authority to adjust volume and respond to other complaints whenever entertainment is provided.
Creator/Exhibitor/Vendor or its agents shall cause a EQ or other responsible person to answer a cell phone for at least two hours after the close of Event to allow for police and emergency personnel or other City personnel to contact that person concerning incidents.
ZERO WASTE POLICY
SALE OR DISTRIBUTION OF NON-COMPLIANT FOOD SERVICE WARE PROHIBITED.
(a) No person may sell, offer for sale, or otherwise Distribute within the City (1) any Food Service Ware that is not either Compostable or Recyclable using the City’s then-available collection programs, or (2) any Food Service Ware made, in whole or inpart, from Polystyrene Foam. (b) The Director shall, after a noticed public hearing, adopt a list of suitable alternative Compostable or Recyclable Food Service Ware products. “Suitable alternative Compostable or Recyclable Food Service Ware products” means Food Service Ware products that the Director determines serve the same intended purpose as non-compliant products, meet the standards for what is Compostable and/or Recyclable set under this Chapter 16, and are reasonably affordable. The Director shall regularly update the list. If a product is included on the Director’s list, it will be deemed to comply with this Section 1603. If a product is not included on the Director’s list, the person using the product as Food Service Ware will have the burden of establishing to the Director’s satisfaction that
the product complies with this Section.
USE OF NON-COMPLIANT FOOD SERVICE WARE PROHIBITED. (a) Food Creator/Exhibitor/Vendors may not sell, offer for sale, or otherwise Distribute Prepared Food (1) in Food Service Ware made, in whole or in part, from Polystyrene Foam, or (2) in Food Service Ware that is not Compostable or Recyclable. (b) City Facility Food Providers may not provide Prepared Food to City Facilities (1) in Food Service Ware made, in whole or in part, from Polystyrene Foam, or (2) in Food Service Ware that is not Compostable or Recyclable. (c) City Departments may not purchase, acquire, or use Food Service Ware for Prepared Food (1) where the Food Service Ware is made, in whole or in part, from Polystyrene Foam, or (2) where the Food Service Ware is not Compostable or Recyclable. (d) City contractors and lessees may not use Food Service Ware for Prepared Food in City Facilities and while performing under a City contract or lease (1) where the Food Service Ware is made, in whole or in part, from Polystyrene Foam, or (2) where the Food Service Ware is not Compostable or Recyclable. (e) The Director shall, after a noticed public hearing, adopt a list of suitable alternative Compostable or Recyclable Food Service Ware products. “Suitable alternative Compostable or Recyclable Food Service Ware products” means Food Service Ware products that the Director determines serve the same intended purpose as non-compliant products, meet the standards for what is Compostable and/or Recyclable set under this Chapter 16, and are reasonably affordable. The Director shall regularly update the list. If a product is included on the Director’s list, it will be deemed to comply with this Section 1604. If a product is not included on the Director’s list, the person using the product as Food Service Ware will have the burden of establishing to the Director’s satisfaction that the product complies with this Section. (f) It shall not be a violation of this Section 1604 to sell, provide, or purchase Prepared Food packaged in Food Service Ware otherwise prohibited by subsections (a) through (c), or to use Food Service Ware otherwise prohibited by subsection (d), if the Prepared Food is packaged outside the City and is sold or otherwise provided to the consumer in the same Food Service Ware in which it originally was packaged. Businesses packaging Prepared Food outside the City are encouraged to use Food Service Ware that is Compostable or Recyclable and is not made, in whole or in part, from Polystyrene Foam.
OTHER POLYSTYRENE FOAM PRODUCTS. (a) No person may sell, offer for sale, or otherwise Distribute for EQ within the City: (1) Packing Materials, including shipping boxes and packing peanuts; (2) coolers, ice chests, or similar containers; (3) pool or beach toys; or (4) dock floats, mooring buoys, or anchor or navigation markers; made, in whole or in part, from Polystyrene Foam that is not wholly encapsulated or encased within a more durable material. (b) No person may sell, offer for sale, or otherwise Distribute for EQ within the City Meat and Fish Trays and Egg Cartons made, in whole or in part, from Polystyrene Foam, or that are not Compostable and/or Recyclable, either as separate items or as part of the sale of raw meat, fish, poultry, or eggs sold to consumers from a refrigerator case or similar retail appliance. (c) No person may sell, offer for sale, or otherwise Distribute within the City any Packing Materials made, in whole or in part, from Polystyrene Foam, as prohibited in subsection (a), or that are not Compostable or Recyclable. For purposes of this Section 1605, Distribution of Packing Materials shall include using such materials to hold, cushion, or protect items to be packed in a container for shipping, transport, or storage, for EQ, where the packing takes place within the City. (d) For purposes of this Section 1605, Distribution of Packing Material shall not include: (1) Receiving shipments within the City that include Polystyrene Foam, or some other non-Compostable and non-Recyclable product, used as Packing Material; (2) Re-using Packing Materials for shipping, transport, or storage within the same distribution system, where the Packing Materials are not sent to a consumer or end user; (3) Donating used Packing Materials to another person, where the donor receives nothing of value for the donated Packing Materials; or. (4) Using Packing Materials donated under subsection (d)(3) for shipping, transport, or storage, where the person using the Packing Materials receives nothing of value for the donated Packing Materials.