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HomeMy WebLinkAbout83-46 - Balboa Pier Concessionaire AgreementRESOLUTION NO. 83 -46 • A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING RESOLUTION NO. 82 -39 REGARDING CONCESSIONAIRE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND DOUGLAS CAVANAUGH FOR A RESTAURANT LOCATED ON THE BALBOA PIER WHEREAS, on March 8, 1982, the City Council adopted Resolution No. 82 -39 which established the terms and conditions of a Concession Agreement between the City of Newport Beach and Douglas Cavanaugh with regard to a restaurant located at the end of Balboa Pier; and WHEREAS, Concessionaire has remodeled the interior of the building located at the end of Balboa Pier and, subsequent to the remodeling, has opened and operated a restaurant in the building at the end of the Balboa Pier; and WHEREAS, the Concession Agreement incorporated into Resolution No. 82 -39 prohibits Concessionaire from obtaining a license to sell alcoholic beverages on the pier; and WHEREAS, Concessionaire has requested an amendment to the Concession Agreement which would allow him to seek an on -sale beer and wine license; and WHEREAS, Concessionaire has fully complied with the terms and conditions of the Concession Agreement, and it is appropriate to authorize an amendment of the Agreement to allow Concessionaire to seek an on -sale beer and wine liquor license, subject to certain conditions and controls; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that the provisions of Resolution No. • 82 -39, insofar as that Resolution incorporated the terms and conditions of the Concession Agreement, is hereby amended to allow Concessionaire to seek an on -sale beer and wine liquor license, and to operate in accordance with the terms of that license, subject to certain conditions and controls, all as set forth in the amendment to Concession Agreement, which is marked Exhibit W and incorporated herein as though fully set forth at length; and • BE IT FURTHER RESOLVED by the City Council of the City of Newport Beach that the Mayor and City Clerk are hereby authorized and directed to execute the amendment to the Concession Agreement on behalf of the City of Newport Beach. ADOPTED this 9th day of May , 1981. City Clerk RSP /Concession • IVA 0 • AMENDMENT TO CONCESSION AGREEMENT BALBOA PIER THIS AMENDMENT to Concession Agreement, made and entered into this ay of , 1983, by and between THE CITY OF NEWPORT BEACH, a Municipal Corporation, hereinafter referred to as "City ", and DOUGLAS CAVANAUGH, hereinafter referred to as "Concessionaire ", witnesseth: WHEREAS, City and Concessionaire entered into a Concession Agreement dated March 8, 1982, whereby Concessionaire was given certain rights to operate a restaurant at the end of Balboa Pier; and WHEREAS, the Concession Agreement prohibits Concessionaire from seeking to obtain a license to sell alcoholic beverages on the Balboa Pier; and WHEREAS, Concessionaire has requested an amendment of this agreement to allow Concessionaire to seek to obtain an on- sale beer and wine liquor license; and WHEREAS, Concessionaire, as of the date of this amendment, has fully complied with the terms and conditions of the Concession Agreement, and it is appropriate to amend that agreement to allow Concessionaire to obtain an on -sale beer and wine liquor license, so long as Concessionaire agrees to comply with the terms and conditions of this amendment. NOW, THEREFORE, the parties agree as follows: 1. Paragraph 1 (b) of the Concession Agreement dated March 8, 1982, shall be amended to read as follows: (b) Concessionaire shall have the right to seek a liquor license from the Alcoholic Beverage Control Board granting him the right to sell beer and wine on premises. In the event that Concessionaire obtains such a license, Concessionaire shall be entitled to sell beer and wine within the confines of the restaurant currently operated by Concessionaire at the end of the - 1 - Balboa Pier. Concessionaire shall comply with all of the rules and regulations comply with all • granted by that necessary to en premises or are of the Alcoholic Beverage Control Board and of the terms and conditions of any license Board. Concessionaire shall take all steps sure that no alcoholic beverages leave the dispensed through any take -out window. Concessionaire shall strictly supervise all sale of beer and wine to ensure that there is no excessive consumption of alcohol on premises. Concessionaire understands and agrees that City will review the business practices of Concessionaire with respect to the sale of alcohol, the review to occur within sixty (60) days from the date on which such sale commences, and thereafter will continually monitor any sale of alcoholic beverages by Concessionaire, pursuant to license, to determine if there is any increase in alcohol - related incidents in and around the Balboa Pier which either result from, or appear to result from, the sale of alcoholic beverages by Concessionaire. In the event the City determines that there is evidence an increase in alcohol - related incidents in and around the Balboa Pier, that result from, or appear to result from, the sale of alcoholic beverages by Concessionaire, the City shall give written notice to Concessionaire of its intention to amend the terms of the Concession Agreement to restore the prohibition against the sale of alcoholic beverages, and within ten (10) days from the date of that notice Concessionaire shall cease the sale of alcoholic beverages. At the conclusion of the ten (10) day period this lease shall be deemed amended such that the sale of alcoholic beverages by Concessionaire is prohibited. Concessionaire • understands and agrees that the City is empowered, pursuant to this agreement, to prohibit Concessionaire from selling or dispensing alcoholic beverages, notwithstanding the fact that Concessionaire may have a license or permit issued by the Alcoholic Beverage Control Board which pemits the sale of beer - 2 - (IR and wine. Concessionaire also understands and agrees that he acquires no rights to receive compensation from the City, with regard to any expenses incurred in obtaining a liquor license, • should the City determine to prohibit the sale of alcoholic beverages by further amendment of this ageement. Concessionaire further stipulates that there has been an increase in alcohol - related incidents in and around the Balboa Pier in recent months, which have prompted the City to take, or consider taking, action necessary to reduce those incidents, and that there.is a substantial risk that, should these incidents continue, this agreement will be amended to preclude the sale of alcoholic beverages by Concessionaire. Finally, Concessionaire stipulates and agrees that this lease may be unilaterally amended by City to prohibit the sale of alcohol as provided in this amendment, without a hearing or opportunity to present evidence, and Concessionaire expressly waives and gives up the right to protest or challenge such amendment and the right to any notice of amendment other than that provided herein. Executed by the parties hereto on the day and year first above written. CITY god Mayor Or ATTEST: City Clerk APP OVED AS TO FWM City Attorney CONCESSIONAIRE - 3 -