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HomeMy WebLinkAboutC-5567(J) - Temporary Revocable License Agreement for Use of City Propertyr� V J 1J) TEMPORARY REVOCABLE LICENSE AGREEMENT 1 BETWEEN THE CITY OF NEWPORT BEACH `j AND LIDO HOUSE, LLC FOR USE OF CITY PROPERTY THIS TEMPORARY REVOCABLE LICENSE AGREEMENT FOR USE OF CITY PROPERTY ("Agreement") is made and entered into as of this "day of Son,2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and Lido House, LLC, a California limited liability company("Licensee"). Licensee and City are individually referred to as "Party" and collectively as "Parties" herein. RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City. B. City is the owner of fee title to certain real property located at 3300 Newport Boulevard, Newport Beach, California [A.P.N. 423-111-08], ("Property") as depicted in the attached Exhibit "A" and incorporated herein by reference. C. Licensee was assigned the rights, title, and interest to construct and operate a boutique hotel and related facilities, commonly known as the Lido House Hotel, that currently exists on a portion of the Property, under that certain Assignment and Assumption Agreement of Ground Lease, dated May 3, 2016. The Ground Lease was originally entered into between the City and R.D. Olson Development ("Assignor") on September 9, 2014. D. Licensee desires to use the City's recently vacated former Newport Beach Fire Station No. 2 property, located at 475 32nd Street in the City of Newport Beach, California, adjacent to the Lido House Hotel ("License Area"), as depicted on the attached Exhibit "B" and incorporated herein by reference, on a temporary basis for the purposes of parking, office space, storage, and general support and logistics for the Lido House Hotel ("Licensed Use"). E. Pursuant to City Council Policy F-7, when an open bid process is not conducted for City property, the City shall make specific findings setting forth the reasons thereof. The City finds that converting the License Area to another use or changing the operator, manager, concessionaire, licensee, or lessee of the License Area would result in excessive vacancy, relocation or severance costs, real estate commissions, tenant improvement allowances, expenses or rent concessions which would outweigh other financial benefits. F. City is willing to allow Licensee to temporarily use the License Area pursuant to the terms and conditions set forth below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. LICENSE 1.1 City hereby grants a temporary revocable license ("License") to Licensee for the term of this Agreement for uses as provided within the License Area. 1.2 The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Licensee covenants, as a material part of the consideration for this License, to keep and perform each and every term, covenant and condition of this Agreement. 2. PURPOSE OF THIS AGREEMENT The purpose of this License is to provide for the temporary use of the License Area for the Licensed Use. Licensee shall use the License Area only for the Licensed Use and shall not use or permit the use of the License Area for any other purpose without first obtaining the prior written consent of City, which consent may be withheld in City's sole discretion. 3. PERMITS, LICENSES AND BEST PRACTICES 3.1 Licensee, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates that may be required by any governmental agency, including the City, in order to use the License Area for the Licensed Use. 3.2 Licensee shall establish, maintain and uphold business practices to the highest degree as generally recognized in Licensee's industry, and exercise the utmost caution for the protection and safety of Licensee and the general public at all times during the term of this Agreement. 4. TERM This Agreement shall commence upon the Effective Date, continue month to month, and terminate as provided in Section 15 (Termination) of this Agreement. Both Parties understand and agree this Agreement is for a temporary period of time and does not, and will not, result in permanent use of or access to the License Area or the Property. Lido House, LLC Page 2 5. LICENSE FEE 5.1 The License is provided to Licensee at Three Thousand Dollars and 00/100 ($3,000.00) per month ("License Fee"). From and after the Effective Date, on the first day of each month Licensee shall pay to City the License Fee, late payment penalties, interest, taxes, and other similar monetary amounts and charges payable by Licensee under the provisions of this License Agreement which may be prorated, as applicable, for any partial month in accordance with the actual number of days in that month. 5.2 Payment Location. All payments of the License Fee shall be made in lawful money of the United States of America and shall be paid to City in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, California, 92660, or to such other address as City may from time to time designate in writing to Licensee. If requested by City, Licensee shall make payments electronically (at www.newportbeachca.gov) or by wire transfer (at Licensee's cost). Licensee assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by City regardless of the method of transmittal. 5.3 Late Payment. Licensee hereby acknowledges that the late payment of the Licensee Fee or other sums due hereunder will cause City to incur costs not contemplated by this License Agreement, the exact amount of which is extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges. Accordingly, any payment of any sum to be paid by Licensee not paid within five (5) calendar days of its due date shall be subject to a ten percent (10%) late charge. City and Licensee agree that this late charge represents a reasonable estimate of such costs and expenses and is fair compensation to City for its loss suffered by such late payment by Licensee. 5.4 Interest on Unpaid Sums. Unpaid sums due to City under this License Agreement shall bear interest at the rate of ten percent (10%) per annum on the unpaid balance, including but not limited to late payment penalties, from the date due until paid. 6. UTILITIES 6.1 Licensee shall be responsible for payment of all utilities furnished to or used on the License Area by Licensee, including, without limitation, electricity, sewer, trash service, and water. 6.2 Licensee may use City's trash enclosures or public trash cans, provided however, that City may, at City's sole and absolute discretion, require Licensee to arrange for its own refuse collection. 6.3 Licensee shall be responsible for the maintenance, repair and/or replacement of utility lines within and exclusively serving the License Area, to the point of the utility's tie-in, or Licensee's pro rata share of utility lines serving Licensee on the License Area. Lido House, LLC Page 3 7. USE AND CONDITIONS OF THE LICENSE AREA AND PROPERTY 7.1 General Use and Conditions. 7.1.1 Licensee understands the safety of the public is paramount to the uses and conditions set forth herein under this Section 7 for the License Area. Licensee shall maintain the License Area free from waste, debris, hazards or risks to public health, safety or welfare at all times. 7.1.2 Licensee shall not use or permit the use of the License Area for any unlawful purpose or any purpose other than the Licensed Use. 7.1.3 Licensee shall not commit or permit the commission of any noise or nuisance on the License Area and shall comply with any and all noise and nuisance requirements as defined by any applicable federal, state and local laws and regulations. 7.1.4 Except as provided under this Agreement, Licensee shall not make or permit to be made any alterations, additions or improvements to the License Area, or install lighting or equipment, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the License Area without the prior written consent of City, other than cosmetic alterations not requiring a permit. Notwithstanding the foregoing, Licensee shall place all required notices and warning signs on or about the Property in the manner required by federal, state or local law. 7.1.5 Licensee shall protect the integrity of the License Area and any part of the Property used for purpose of accessing the License Area. Licensee shall return the License Area to City in the substantially the same condition, reasonable wear and tear excluded, as it was upon execution of this Agreement as required under this Section 7. Licensee shall, at its sole cost and expense, document (including photos and/or video) the condition of the Property prior to the commencement of the License term and submit such documentation to the City. 7.2 Use and Conditions of License Area. 7.2.1 Licensee may use the License Area for the Licensed Use. 7.2.2 Licensee shall exercise all necessary precautions for opening, closing, and securing the License Area and its equipment and materials stored in the License Area at all times. Licensee expressly assumes all responsibility for the protection and security of the License Area, including personal property and equipment of Licensee. 7.2.3 Licensee shall install legible signs on the License Area, visible from the public right-of-way, that includes Licensee's contact information, including a 24-hour emergency phone number. Lido House, LLC Page 4 7.3 No Other Users of Property. The License Area is a portion of the Property specifically designated for use by Licensee for the operations permitted herein. Licensee shall have sole access and use of the License Area during the Term. 7.4 Uses Other Than Licensed Use. If Licensee desires to use the License Area for any other purpose besides the Licensed Use, Licensee shall obtain any and all necessary permits, licenses or approvals that may be required from any local, state or federal entities, prior to the commencement of use other than a Licensed Use. 8. CITY INSPECTION 8.1 City shall be entitled, upon twenty-four (24) hours' notice, to inspect the License Area for compliance with the terms of this Agreement, and with all applicable federal, state and local laws and regulations. 8.2 City and its authorized City representative(s) may, without prior notice to Licensee, enter upon and inspect the License Area for any lawful purpose. In case of emergency, City or its authorized City representative(s) may enter the License Area by whatever force reasonably necessary if Licensee is not present to open and permit entry. Any entry to the License Area by City under this License shall not be construed as a forcible or unlawful entry into, or a detainer of, the License Area, or an eviction of Licensee from the License Area or any portion thereof. City and Licensee shall annually perform a joint inspection of the License Area, scheduled upon the anniversary of the Effective Date each year to determine what repairs and maintenance shall be scheduled for the following year. 9. RESERVED 10. MAINTENANCE AND SECURITY 10.1 At its sole cost and expense, Licensee shall take good care of and keep the License Area neat and clean at all times. Should Licensee fail to commence required maintenance or repairs, or cleaning of the License Area to a condition satisfactory to City, within forty-eight (48) hours after receipt of notice to do so, City may perform such work or have such work performed by others and Licensee shall immediately reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. Graffiti shall immediately be called in to the City's Graffiti Hotline at (949) 644- 3333 for removal. 10.2 Licensee shall maintain all landscaping, buildings, improvements, parking lot, and lighting on the License Area: 10.2.1 Licensee covenants and agrees that during the Term of this Agreement it will, at its sole cost and expense, maintain the License Area, in good order and repair and in clean, orderly, safe and sanitary condition. 10.2.2 Licensee shall be responsible for the repair of any damage caused at or on the Licensed Area. Lido House, LLC Page 5 10.3 City May Elect to Repair and Maintain at Expense of Licensee. If, in the judgment of the City, such standards of maintenance and repair are not being maintained, it may at its option, after not less than thirty (30) calendar days, or in the event of an emergency as determined by the City twenty-four (24) hours prior written notice thereof to the Licensee and Licensee's failure to commence in good faith to remedy the same within the time herein provided and thereafter diligently prosecute the same to completion, elect to correct any deficiency, whether it be in reference to grounds, landscaping, building or improvements. Licensee covenants and agrees to pay to City on demand any and all sums expended by it in correcting any such deficiency, together with interest at the legal rate. 10.4 Compliance with Laws, Ordinances and Regulations. City and Licensee covenant and agree to comply with all rules, regulations, statutes, ordinances and laws of the State of California, County of Orange, the City of Newport Beach, or any other governmental body or agency having lawful jurisdiction over the License Area or the business, enterprises, or activities conducted thereon. 10.5 Other than cosmetic alterations not requiring a permit and pursuant to Section 7.1.4 herein, Licensee shall not make any alterations or improvements to the License Area. The existing overhead doors on the garage bays shall be regularly maintained by Licensee and returned to City upon Termination in working order. 10.6 Licensee shall incorporate the License Area into the existing Lido House Hotel property security routine to ensure that the License Area is secure at all times. 11. NO INTEREST IN PROPERTY Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any possessory or other interest in the License Area, Property, or any public right-of-way, other than a license to use and access the License Area, revocable and for a temporary term as set forth in this Agreement. 12. RESERVATION OF RIGHTS Licensee understands, acknowledges and agrees that any and all authorizations granted to Licensee under this Agreement shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use the License Area and Property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect the License Area and Property. 13. RESERVED 14. RELOCATION Licensee agrees that whenever any City improvements may be required (for example, maintenance or repair of the License Area and/or Property), the City may require the relocation of Licensee's equipment and materials stored in the License Area Lido House, LLC Page 6 at Licensee's expense without Licensee making any claim against the City for reimbursement or damage therefor. Except in the event of an emergency or other situation requiring immediate relocation from the License Area, City shall provide Licensee with not less than thirty (30) calendar days written notice of relocation specifying a date by which the relocation is to take place. 15. TERMINATION 15.1 Notwithstanding the term of this License, this License may be terminated during the term or any extended term in the following manner: 15.1.1 By either Party, at anytime, for any reason, with or without cause, by giving thirty (30) calendar days' prior written notice to the other Party; or 15.1.2 By City if, after written notice of default to Licensee of any of the terms or conditions of this License, Licensee fails to cure or correct the default within ten (10) business days (provided, however, if the default cannot be rectified or cured within such ten (10) business day period, the default shall be deemed to be rectified or cured if Licensee, within such ten (10) day period, shall have commenced to rectify or cure the default and shall thereafter diligently and continuously prosecute same to completion) of receipt of written notice, City may immediately terminate the License. 16. RESERVED 17. ADMINISTRATION This License will be administered by the Community Development Department. The Community Development Director or his/her designee shall be the License Administrator and shall have the authority to act for City under this License. The License Administrator or their authorized representative shall represent City in all matters pertaining to this License. 18. INDEMNIFICATION AND LIABILITY FOR DAMAGES 18.1 To the fullest extent permitted by law, Licensee shall indemnify, defend, assume all responsibility for, and hold harmless City, its elected or appointed officers, agents, officials, employees, and volunteers (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a "Claim" and, collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to this Agreement or the implementation hereof and for any damages to property or injuries to persons, including accidental death, related to any of Licensee's activities under this Agreement, whether such activities or performance thereof be (i) by Licensee, or (ii) Licensee's agents and whether such damage shall accrue or be discovered before or after termination of this Agreement. Lido House, LLC Page 7 18.2 Notwithstanding the foregoing, nothing herein shall be construed to require Licensee to indemnify the Indemnified Parties from any Claim arising from the sole active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Licensee. 18.3 Licensee shall be liable and responsible for the security, repair and maintenance of the License Area to the extent necessitated by Licensee's use of the License Area for such time as this License is in effect. Licensee shall use care to protect the License Area when not in use by Licensee. 19. INSURANCE Without limiting Licensee's indemnification of City, and prior to commencement of work, Licensee shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit "C," and incorporated herein by reference. 20. HAZARDOUS SUBSTANCES 20.1 From the date of execution of this License throughout the Term, subject to and specifically excluding any Hazardous Substances in existence in, on, under, about or within the License Area prior to the commencement of the Term, Licensee shall not use, store, manufacture or maintain in, on, under, about or within the License Area any Hazardous Substances. Licensee shall only use the License Area for the Licensed Uses under this Agreement. 20.2 For purposes of this License the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ("RCRA"); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste of Concern and Public Safety Act, Health and Safety Code Sections 25169.5 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Release Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended, (the above -cited statutes are here collectively Lido House, LLC Page 8 referred to as "the Hazardous Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. 20.3 Notwithstanding any contrary provision of this License, and in addition to the indemnification duties of Licensee set forth in this Agreement, subject to and specifically excluding any Hazardous Substances in existence in, on, under, about or within the License Area prior to the commencement of the Term, Licensee agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its elected or appointed officers, agents, officials, employees, volunteers and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its elected or appointed officers, agents, officials, employees, volunteers, or assigns may sustain or incur or which may be imposed upon them in connection with the use of the License Area provided under this Agreement by Licensee, arising from or attributable to the storage or deposit of Hazardous Substances by Licensee on or under the License Area. This Section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. 20.4 Physical/Environmental Condition of the Premises; Licensor Covenant to Not Alter Existing Physical/Environmental Condition of the Premises. All portions of the License Area, and any improvements thereon, which are licensed by Licensor to Licensee shall be licensed in an "as is" physical and environmental condition, with no warranty, express or implied, by Licensor as to the condition of the building, site, utilities, and any other improvements to the License Area, including the soil, its geology, the presence of known or unknown earthquake faults, the presence of any Hazardous Substances, the water table and/or groundwater conditions, or any other similar matters and it shall be the sole responsibility of Licensee, at its sole cost and expense, to investigate and determine the physical/environmental conditions of the License Area, its geology, susceptibility to seismic events, the presence of any Hazardous Substances, the water table and/or groundwater conditions, and the physical and environmental suitability of the License Area for the Licensed Uses. Not by way of limitation of the foregoing, Licensee acknowledges that the existing improvements on the License Area may deteriorate during the Term of this Agreement and Licensor shall have no liability or responsibility therefor. Lido House, LLC Page 9 20.5 City agrees that City will not itself or otherwise authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the License Area in violation of any law or regulation. City and Licensee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs arising from any breach of any representation, warranty or agreement contained in this Section. This Section shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, Licensee shall surrender and vacate the License Area and deliver possession thereof to City on or before the termination date free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to Licensee. 21. ASSIGNMENT All of the terms and provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. This Agreement and the rights and obligations of Licensee is personal to Licensee and shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred"), in whole or in part, without the prior written consent of the City, which consent may be withheld in City's sole and absolute discretion for any reason or no reason at all. Any assignment of this Agreement or the License granted hereunder, voluntarily or by operation of law, shall automatically terminate this Agreement, unless Licensee has obtained the prior written consent of City. 22. CONFLICT OF INTEREST The Licensee or its employees may be subject to the provisions of the California Political Reform Act of 1974 ("Act"), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this License, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Licensee shall conform to all requirements of the Act. Failure to conform to the requirements of the Act constitutes a material breach and is grounds for immediate termination of this License by City. Licensee shall indemnify and hold harmless City for any and all claims for damages resulting from Licensee's violation of this Section. 23. NOTICES All notices, demands, requests or approvals to be given under the terms of this License shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Licensee to City shall be addressed to City at: Lido House, LLC Page 10 Community Development Department City of Newport Beach Attn: Real Property Administrator 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 All notices, demands, requests or approvals from City to Licensee shall be addressed to Licensee at: Lido House, LLC Attn: Robert D. Olson R.D. Olson Development 520 Newport Center Drive, Suite 600 Newport Beach, CA 92660 24. STANDARD PROVISIONS 24.1 Recitals. City and Licensee acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 24.2 Compliance with Laws. Licensee, at its sole cost and expense, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the License Area, or the use thereof, including all Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. Licensee shall not occupy or use the License Area or permit any portion thereof to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire. 24.3 Not Agent of City. Neither anything in this Agreement nor any acts of Licensee shall authorize Licensee to act as agent, contractor, joint venture or employee of City for any purpose. 24.4 Waiver. The waiver by either Party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either Party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. Lido House, LLC Page 11 24.5 Integrated Agreement. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 24.6 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement, or any other attachments attached hereto, the terms of this Agreement shall govern. 24.7 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 24.8 Amendments. This Agreement may be modified or amended only by a written document executed by both Licensee and City and approved as to form by the City Attorney. 24.9 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 24.10 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 24.11 Equal Opportunity Employment. Licensee represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 24.12 Taxes. Licensee shall pay any and all personal interest property taxes, real property taxes, possessory interest taxes, fees and assessments, or similar charges which may at any time be imposed or levied by any public entity and attributable to the Agreement authorized herein. City hereby gives notice to Licensee, pursuant to Section 107.6 of the California Revenue and Taxation Code that this Agreement may create a possessory interest in and to the property of City, a tax-exempt public entity, the payment of which taxes shall be the sole obligation of Licensee. Licensee shall indemnify, defend and hold harmless City against any and all such taxes, fees, penalties or interest assessed, or imposed against City hereunder. 24.13 No Third -Party Beneficiaries. Neither anything in this Agreement nor any acts of Licensee shall authorize Licensee to act as agent, contractor, joint venture or employee of City for any purpose. 24.14 No Attorneys' Fees. In the event of any dispute under the terms of this Agreement the prevailing party shall not be entitled to attorneys' fees. Lido House, LLC Page 12 24.15 City Business License. Licensee shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 24.16 Time is of the Essence. Time is of the essence for this Agreement. 24.17 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. 25. NO DAMAGES Licensee acknowledges that City would not enter into this Agreement if it were to be liable for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) under, or relating to, this Agreement or any of the matters referred to in this Agreement. Accordingly, Licensee covenants and agrees on behalf of itself and its successors and assigns, not to sue City (either in its capacity as licensor in this Agreement or in its capacity as the City of Newport Beach) for damages (including, but not limited to, actual damages, economic damages, consequential damages, lost profits, loss of rents or other revenues, loss of business opportunity, loss of goodwill or loss of use) or monetary relief for any breach of this Agreement by City or for any dispute, controversy, or issue between City and Licensee arising out of or connected with this Agreement or any of the matters referred to in this Agreement, the parties agreeing that declaratory relief, injunctive relief, mandate and specific performance shall be Licensee's sole and exclusive judicial remedies. Notwithstanding the foregoing, nothing in this Section 25 shall limit Licensee's remedies as expressly set forth in this Agreement. 26. GOVERNMENT CLAIMS ACT Licensee and City agree that in addition to any claims filing or notice requirements in this Agreement, Licensee shall file any claim that Licensee may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.), or any successor statute. [SIGNATURES ON NEXT PAGE] Lido House, LLC Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY'S OFFICE Date: -60 CITY OF NEWPORT BEACH, A California mu icipal corporation Date: 16 Z By: By: Aaron C. arp UGrace: eung City Att ey % City � nager 3 ATTEST: Date: B�own City Clerk Attachments LICENSEE: Lido House, LLC, a California limited liability company Date: Signed in Counterpart By: Name: Title: Robert D. Olson Manager [END OF SIGNATURES] Exhibit A: Depiction of Property Exhibit B: Depiction of License Area Exhibit C: Insurance Requirements Lido House, LLC Page 14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATT RNEY'S OFFICE A California municipal corporation Date: LSD Date: By: By: Aaron C. ffarp Grace K. Leung City Att ey % 3 City Manager ATTEST: LICENSEE: Lido House, LLC, a California Date: limited liability company Date: (� By: By. Leilani I. Brown Name: Robert D. Olson City Clerk Title: Manager Attachments: Exhibit A: Exhibit B: Exhibit C: [END OF SIGNATURES] Depiction of Property Depiction of License Area Insurance Requirements Lido House, LLC Page 14 EXHIBIT "A" Depiction of Property Page A-1 - J 01,E _! pp�Q� •: �� tr p"J' � � • `} Cr W /5jJ ��� ,y�jo 3J2 i r I `may 510 ,. y,r Jl, f 341, UR -413 It 1 so1,7 S !.// 3 el.,II / OdA 7 I N L F y ' 7 n.7-1'� ¢ rr V ;i _ 'S si3 !` ♦.'�3f' .�i �, 1 61 7—� 3J;/. �' 3 � , � _ •I��7U� .3311. 3� to 2325 •, t� 3333 �� � R(g � �p4 , 5 t py , 1 . 2.. r b 19U 330s VTAYMALf1GA� e 47 MOIR Park LLI .f y ,'M = _ -.� I '• 1 A 1 F7 SAF. �-33 F._7A 'F 1 e 31 0.1 ].F >3- S1a-'M4>r7 y.' o .ate r 17r {'�.._ I ^ y• J °P 314LSTtSTI 3 0 b. ,s . 2.4 �I: . ,� ,�' •i. � .IE. �. �il�l ago ' NB Disclaimer: N£ W P O R T 8;E A t w Every reasonable effort has been made to assure the accuracy of the data provided, however, The City of �EW�RT Newport Beach and its employees and agents D� 0 200 400 disclaim any and all responsibility from or relating to any results obtained in its use. Feet Exhibit "B" Depiction of the License Area Page B-1 NEWS City of Newport Beach GIS Division May 31, 2023 32.d5r_475Ll,.,.Aql.--.P- EXHIBIT "C" Insurance Requirements 1. Provision of Insurance. Without limiting Licensee's indemnification of City, and prior to commencement of the Term, Licensee shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and, in a form, satisfactory to City. Licensee agrees to provide insurance in accordance with requirements set forth here. If Licensee uses existing coverage to comply and that coverage does not meet these requirements, Licensee agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Licensee shall maintain Workers' Compensation Insurance providing statutory benefits and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each employee for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Licensee shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with California law for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the property upon which Licensee performs the Project and/or Services contemplated by this Agreement. Licensee shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its elected or appointed officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the property upon which Licensee performs the Project and/or Services contemplated by this Agreement. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance, and if necessary, umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than two million dollars ($2,000,000) per occurrence, four million dollars ($4,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products -completed operations, personal and advertising injury, and liability assumed under an Page C-1 insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Licensee shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Licensee arising out of or in connection with the Licensed Use to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverages maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the property upon which Licensee performs the Project and/or Services contemplated by this Agreement or shall specifically allow Licensee or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, products and completed operations, excess liability, and pollution liability, automobile liability, protection and indemnity liability, and vessel pollution liability if required, but not including professional liability, shall provide or be endorsed to provide that City, its elected or appointed officers, agents, officials, employees, volunteers, agents, the State of California Department of Parks and Recreation, and any person or entity owning or otherwise in legal control of the property upon which Licensee performs the Project and/or Services contemplated by this Agreement shall be included as additional insureds under such policies. C. Primary and Non -Contributory. Licensee's insurance coverages shall be primary insurance and/or the primary source of recovery with respect to City, its elected or appointed officers, agents, officials, employees, volunteers, and any person or entity owning or otherwise in legal control of the property upon which Licensee performs the Project and/or Services contemplated by this Agreement. Any insurance or self-insurance maintained by City shall be excess of Licensee's insurance and shall not contribute with it. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation or nonrenewal of coverage (except for nonpayment for which ten (10) calendar days' notice is required) for each required coverage. Page C-2 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Licensee shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. All of the executed documents referenced in this Agreement must be returned to City within ten (10) regular City business days after the Agreement is fully executed. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of work. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Licensee ninety (90) calendar days' advance written notice of such change. C. Right to Review Subcontracts. Licensee agrees that upon request, all agreements with subcontractors or others with whom Licensee enters into agreements with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Licensee shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Licensee shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. D. Enforcement of Agreement Provisions. Licensee acknowledges and agrees that any actual or alleged failure on the part of City to inform Licensee of non- compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. E. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Exhibit are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Licensee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Licensee. Any available proceeds in excess of specified minimum limits of insurance and coverage shall be available to the City. Page C-3 F. Self -insured Retentions. Licensee agrees not to self -insure or to use any self -insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self -insure its obligations to City. If Licensee's existing coverage includes a self -insured retention, the self -insured retention must be declared to City. City may review options with Licensee, which may include reduction or elimination of the self - insured retention, substitution of other coverage, or other solutions. Licensee agrees to be responsible for payment of any deductibles on their policies. G. City Remedies for Non -Compliance. If Licensee or any subcontractor fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Licensee's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Licensee or reimbursed by Licensee upon demand. H. Timely Notice of Claims. Licensee shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Licensee's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. I. Coverage not Limited. All insurance coverage and limits provided by Licensee and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to City or its operations limits the application of such insurance coverage. J. Coverage Renewal. Licensee will renew the coverage required here annually as long as Licensee continues the Licensed Use under this Agreement or any other agreement with City. Licensee shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Licensee's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five (5) calendar days of the expiration of the coverages. Page C-4 q 2 221 P. 39 ® C qSearch Insured Name Lido House, LLC (FV00001055) l Lido House, LLC (FV00001055) Active Records Only Advance Search Insured Tasks Admin Tools View sZi Insured Notes History Deficiencies Coverages Requirements Add Edit Help Video Tutorials 4t Insured Name: Lido House, LLC n Account Number: FV00001055 Address: 520 Newport Center Drive, Suite 600, Newport Beach, CA, USA, 92660 Status: Currently in Compliance. Insured Business Unit(s) DBA Name Print Insured Info Account Information Account Number: Risk Type: Do Not Call: Address Information Mailing Address Insured: Address 1: Address 2: City: State: FV00001055 Public Works Formal Agreement Address Updated: Physical Address Lido House, LLC 520 Newport 475 32nd Street Center Drive, Suite 600 Newport Newport Beach Beach CA CA t Country: USA USA Contract Information Contract Number Contract Start Date: Contract End Date: Contract Effective Date: Contract Expiration Date Description of Services: Temporary Safety Form II: Revocable License Agreement Contact Information Contact Name: Nanette Misc: Valle Phone Number: Alt Phone Number: Fax Number: E-Mail Address: nvalle@alliant.com Approval Date: Rush: No Contract on File: No Certificate Received: Yes Indemnification Agreement: No Tax Id: This Account created by e55 on 09/11/2023.