DATED2018

LICENCEAGREEMENT

relating to the provision of a Vintage Fairground and Observation Wheel

at The Tall Ships Races Sunderland 2018

between:

THE COUNCIL OF THE CITY OF SUNDERLAND

and

[LICENSEE]

HeadofLawandGovernance SunderlandCityCouncil

CivicCentre

BurdonRoad Sunderland SR2 7DN

Ref:PH/76354

CONTENTS

______

CLAUSE

1.Interpretation

2.Licence to occupy

3.Licensee's obligations

4.Termination

5.Notices

6.No warranties for use or condition

7.Limitation of Council's liability

8.Indemnity and Insurance

9.Miscellaneous Provisions

SCHEDULE 1 – Licensee’s Obligations

SCHEDULE 2 – Expression of Interest

SCHEDULE 3 – Plan

This Licence Agreement is dated 2018

Parties

(1)THE COUNCIL OF THE CITY OF SUNDERLAND of Civic Centre, Burdon Road, Sunderland, SR2 7DN (Council)

(2)[FULL COMPANY NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (Licensee)

Agreed terms

  1. Interpretation

The following definitions and rules of interpretation apply in this licence.

1.1Definitions:

Common Parts: such roads, paths, gateways and other means of access to the Event Zone and the Site the use of which is necessary for obtaining access to and egress from the Event Zone and the Site.

Competent Authority: any statutory undertaker or any statutory public local or other authority or regulatory body or any court of law or government department or any of them or any of their duly authorised officers.

Designated Hours: 10a.m – 10p.m.

Event: the Tall Ships Races Sunderland 2018.

Event Zone: the main areas that will be used to host events,and the provision of a fair as more particularly described within the Expression of Interest.

Expression of Interest: the document issued by the Council when seeking expressions of interest from companies to provide vintage fairground rides and observation wheel at the Event, a copy of which is attached at Schedule 2.

Force Majeure: any cause materially affecting the performance by a party of its obligations under this licence arising from any act beyond its reasonable control and affecting either party. This includes without limitation: acts of God, war, industrial action, protests, fire, flood, storm, tempest, epidemic, explosion, acts of terrorism and national emergencies.

Licence Fee: [INSERT AMOUNT]

Licence Period: the period from and including Tuesday 10th July 2018 until the date on which this licence is determined in accordance with clause 4.

Necessary Consents: all planning permissions and all other consents, licences, permissions, certificates, authorisations and approvals whether of a public or private nature which shall be required by any Competent Authority for the Permitted Use.

Permitted Use: the provision of a vintage fairground rides and observation wheelat the Event, as more particularly described in the Expression of Interest.

Plan: the plan attached to this licence at Schedule 3marked "Plan".

Site: the area(s)at [ADDRESS OF THE SITE/NAME OF EVENT ZONE] [shown for the purposes of identification edged red on the Plan.

Street Trading Consent: theconsent to trade in a designated area, issued by the Council pursuant to part 3, schedule 4 of the Local Government (Miscellaneous Provisions) Act 1982 and further details of which can be found at:

VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement tax and any similar additional tax.

Working Day:any day which is not a Saturday, a Sunday, a bank holiday or a public holiday in England.

1.2Clause, Schedule and paragraph headings shall not affect the interpretation of this licence.

1.3The Schedule forms part of this licence and shall have effect as if set out in full in the body of this licence. Any reference to this licence includes the Schedule.

1.4References to clauses and Schedules are to the clauses and Schedules of this licence and references to paragraphs are to paragraphs of the relevant Schedule.

1.5Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.6Unless otherwise specified, a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made from time to time under that statute or statutory provision and all orders, notices, codes of practice and guidance made under it.

1.7A reference to writing or written excludes fax and e-mail.

1.8Any obligation on a party not to do something includes an obligation not to allow that thing to be done and an obligation to use best endeavours to prevent that thing being done by another person.

  1. Licence to occupy
  2. Subject to clause 3 and clause 4 and in consideration of the Licence Fee, the Council permits the Licensee to occupy the Site for the Permitted Use for the Licence Period during the Designated Hours in common with the Council and all others authorised by the Council (so far as is not inconsistent with the rights given to the Licensee to use the Site for the Permitted Use).
  3. The Licensee acknowledges that:

(a)the Licensee shall occupy the Site as a licensee and that no relationship of landlord and tenant is created between the Council and the Licensee by this licence;

(b)the Council retains control, possession and management of the Site and the Licensee has no right to exclude the Council from the Site;

(c)that it is condition of this licence and the Licensee’s entitlement to trade during the Licence Period that the Licensee holds a valid Street Trading Consent, and the Licensee shall provide evidence to the Council (on request)that it has aStreet Trading Consent in place; and

(d)the licence to occupy granted by this agreement is personal to the Licensee and is not assignable, and the rights given in clause 2 may only be exercised by the Licensee and its employees.

  1. Licensee's obligations

The Licensee agrees and undertakes to comply in full with the obligations and undertakings set out at Schedule 1 to this Licence.

  1. Termination
  2. Unless terminated early in accordance with the terms of this licence, this licence shall expire on Saturday 14th July 2018.
  3. The Council may terminate the Contract with immediate effect by notice in writing to the Licensee on or at any time if:

(a)the Licensee is breach of any of the Licensee's obligations and undertakings contained in clause 3, and/or

(b)The Licensee fails to provide to the Council with evidence (within five Working Days of any request by the Council) that the Licensee has a valid Street Trading Consent in place, and/or

(c)the Licensee is guilty of any conduct bringing itself or the Council into public disrepute, and/or where there is a risk or a genuine belief by the Council that reputational damage to the Council will occur as a result of the licence continuing.

4.3The Council may terminate the licence at will, and with immediate effect, by providing not less than ten (10) Working Days’ notice in writing to the Licensee at any time, but provided that:

(a)the Council shall not be entitled to serve notice on the Licensor in accordance with clause 5.3 if at the time of such notice there are less than [thirty (30)] Working Days prior to the commencement of the Licence Period; and

(b) the Council shall refund the License Fee to the Licensor in full within twenty (20) Working Days from the date of termination of the licence pursuant to clause 5.3.

4.4Upon the termination of the licence for any reason, subject as otherwise provided in this licence and to any rights or obligations which have accrued prior to termination, neither party shall have any further obligation to the other under the licence. For the avoidance of doubt upon any termination of this licence, the Council shall not be liable to the Licensee for any loss of profit or opportunity, loss of contracts or other costs, losses and/or expenses arising out of or in connection with such termination.

  1. Notices
  2. Any notice given under this licence shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or other next working day delivery service to the relevant party as follows:

(a)to the Council at The Tall Ships Team, Civic Centre, Burdon Road, Sunderland SR2 7DN and marked for the attention of Charlotte Thew; and

(b)to the Licensee at: [ADDRESS] and marked for the attention of [NAME OR POSITION],

or as otherwise specified by the relevant party by notice in writing to each other party.

5.2Any notice or other communication given in accordance with clause 5.1 will be deemed to have been received:

(a)if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; or

(b)if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second working day after posting.

5.3A notice given under this licence shall not be validly given if sent by e-mail.

5.4This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

  1. No warranties for use or condition
  2. The Council gives no warranty that the Site possesses the Necessary Consents for the Permitted Use.
  3. The Council gives no warranty that the Site is physically fit for the purposes specified in clause 2.
  4. The Council will not be providing any overnight security in relation to the Site and/or the Event Zone, and all vehicles, trading units, items and stock left on the Site are left at the Licensee’s own risk.
  5. The Licensee acknowledges that it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that may have been made by or on behalf of the Council before the date of this licence as to any of the matters mentioned in clause 6.1 or clause 6.2.
  6. Nothing in this clause shall limit or exclude any liability for fraud.
  7. Limitation of Council's liability
  8. Subject to clause 7.2, the Council is not liable forany losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability incurred by Licensee or the Licensee's employees, customers or other invitees to the Site in the exercise or purported exercise of the rights granted by clause2.
  9. Nothing in clause 7.1 shall limit or exclude the Council's liability for:

(a)death or personal injury or damage to Site caused by negligence on the part of the Council or its employees or agents; or

(b)any matter in respect of which it would be unlawful for the Council to exclude or restrict liability.

  1. Indemnity and Insurance
  2. The Licensee agrees and undertakes to maintain such insurance as is reasonably necessary to cover any liability of the Licensee arising under or pursuant to this licence, which as a minimum shall include a policy of public liability insurance with a reputable insurer, with an indemnity limit of no less than £5,000,000 (five million pounds).
  3. The Licensee agrees to indemnify the Council and keep the Council indemnified against all losses, claims, demands, actions, proceedings, damages, costs, expenses or other liability in any way arising from:

(i)this licence;

(ii)the exercise of any rights given in clause 2;

(iii)any breach of the Licensee's undertakings and obligations contained in clause3; and/or

  1. Miscellaneous Provisions
  2. No variation or modification to this licence shall be valid unless it is in writing and signed by the Council and the Licensee.
  3. Failure by either party at any time to enforce any one or more of the provisions of this licence or to require performance by the other party of any of the provisions shall not constitute or be construed as a waiver of the provision or of the right at any time subsequently to enforce all terms and conditions of this licence, nor affect the validity of the licence or any part of it or the right of the parties to enforce any provision in accordance with its terms.
  4. No waiver of any of the provisions of this licence shall be effective unless it is expressed to be a waiver in writing and communicated in accordance with clause 5.
  5. Neither party shall be liable for failure to perform its obligations under the licence if such failure results from Force Majeure.
  6. If any provision of the licence shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable in any way, such invalidity shall not impair or affect any other provision of the licence, all of which shall remain in full force and effect.
  7. Each of the parties will pay their own costs and expenses incurred in connection with the negotiation, preparation, execution, completion and implementation of this licence.
  8. Clauses 7, 8, 9.2, 9.3, 9.5, 9.8, 9.9 and 9.10, shall survive termination or expiry of this licence.
  9. A person who is not a party to this licence shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this licence.
  10. This licence and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
  11. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this licence or its subject matter or formation (including non-contractual disputes or claims).

This licence has been entered into on the date stated at the beginning of it.

SCHEDULE 1

LICENSEE’S OBLIGATIONS

The Licensee agrees and undertakes as follows:

Payment

(a)to pay the Licence Fee to the Council (together with such VAT as may be chargeable on the Licence Fee) by the earlier of:

(i)28 days from the date of Invoice from Sunderland City Council

(b)to pay to the Council interest on the Licence Fee or other payments at the rate of 4 per cent per annum above the base rate of Barclays Bank plc from time to time calculated on a daily basis from the due date until payment if the Licensee shall fail to pay the Licence Fee or any other payments due under this licence within five Working Days of the due date (whether formally demanded or not).

Use of Site

(c)not to use the Site or the Event Zone other than for the Permitted Use;

(d)not to make any alteration or addition whatsoever to the Site or the Event Zone;

(e)not to do or permit to be done on the Site or the Event Zone anything which is illegal or which may be or become a nuisance (whether actionable or not), annoyance, inconvenience or disturbance to the Council, to any owner or occupier of neighbouring Site, or to any persons visiting the Event;

(f)not to play music on the Site or any part of the Event Zone without the prior written consent of the Council

(g)not to cause or permit to be caused any damage to the Site, any neighbouring Site, or any part of the Event Zone; or

(h)not to obstruct the Event Zone or the Common Parts, make them dirty or untidy or leave any rubbish on them;

Please note, Event Zone 4 is made available with the permission of the University of Sunderland, and the occupation of any Site within this Event Zone may be subject to further requirements and conditions of use.

(i)to keep the Site clean, tidy and clear of rubbish, and (with regard to the Permitted Use) to provide appropriate and sufficient litter receptacles for the Licensee’s customers to use;

(j)to keep any trading units from which the Licensee wishes to trade well stocked, and properly attended to at all times;

(k)to leave the Site in a clean and tidy condition and to remove the Licensee's equipment and goods from the Site at the end of the Licence Period;

Regulations and Consents

(l)to comply with all laws and with any recommendations of the relevant suppliers relating to the supply and removal of electricity, gas, water, sewage, and other services and utilities to or from the Site;

(m)to comply with all health and safety legislation from time to time in force together with any codes of practice which are relevant to the Permitted Use and the Licensee’s occupation of the Site and the Event Zone.

(n)to observe any reasonable rules and regulations the Council makes and notifies to the Licensee from time to time governing the Licensee's use of the Site, the Event Zone and the Common Parts;

(o)not to do anything that will or might constitute a breach of any Necessary Consents affecting the Site or which will or might vitiate in whole or in part any insurance effected by the Council in respect of the Site or the Event Zone from time to time;

Access and Parking

(p)not to obstruct any public highways adjacent to the Site or the Event Zone, or in any other way interfere with pedestrian flow;

(q)to only access the Site from such roads and/or pathways which are suitable for vehicular traffic;

(r)to park no more than one trading unit, and one small vehicle within the Site.

SCHEDULE 2

EXPRESSION OF INTEREST PACK ATTACHED

SCHEDULE 3

PLAN

Will be available on award of licence

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