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HomeMy WebLinkAboutC-1788 - License agreement for concession on Newport Pier and Balboa PierCITY OF NEWPORT BEACH TO: FINANCE DIRECTOR FROM: City Clerk SUBJECT: Contract No. C -1728 CALIFORNIA City Hall 3300 W. Newport Blvd. Area Code 714 673 -2110 Description of Contract w Cplt & Balboa Pier GorlCessiol License Ag� Authorized by Resolution No. 8696 , adopted on 2 -9-76 Effective date of Contract FehruarvI, 1976 Contract with noel arO, Betty Lou Phoenix Address p19 Chnrlrf-4'i StInet Costa Mesa, CA 92627 Amount of Contract see contract City Clerk v t February 17, 1976 Noel M. and Betty Im Phoenix 819 Oonclress Street Iosta "Mesa, CA 92627 Subject: amr- ession A9remnent for Newport and Balboa Piers C-4792 Attacml is an <-- m—out�-I ecru. of t e license agreement between the City of Newport Beach and yourselves for the ooneessiens operating on tp- Newport and LaD. -) a tiers. 7bis al4rea7eit was authorized by t -n City Ccsmcil on Febru- ary 9, 1976 by the Ant*-ion of Resolutim No. 8696. Acting City Clerk swk enc. cc: Parks, Beaches & Recreation Director Policy No. Naine Insured This is to certify that the of has issued to City of Newport Beach CERTIFICATE OF INSURANCE FOR LEASE OF CITY PROPERTY (Name of Company or Organization) (Address of Company or Organization) (Name of Insured) (Address of Insured) The policy of Liability Insurance described herein, which by the attachment of the City Property Endorsement has been changed in accordance with the terms of the Endorsement. Coverages and limits of liability under the policy are not less than: BODILY INJURY PROPERTY DAMAGE $500,000 each person $200,000 each person $1,000,000 each occurrence $Z00,000 each occurrence CITY PROPERTY ENDORSEMENT This endorsement is attached to the policy described herein to assure compliance by the named insured with the terms and provisions of the lease, rental or other agreement entered into between the insured as Lessee and the City of Newport Beach as Lessor. The Company or Organization amends the policy described herein as follows: If the policy is cancelled or changed so as to affect the coverages, at least fifteen (15) days prior written notice of such cancellation or change will be sent to the Lessor, City of Newport Beach, c/o City Manager, 3300 Newport Boulevard, Newport Beach, California 92660. 2. The Lessor City of Newport Beach, its officers, and employees are hereby declared to be additional insureds in the policy described insofar as they may be held liable for injuries, deaths, or damage to property occuring in or about the leased premises including negligence of the city and the company waives any right of contribution which it may have against any other insurance carrier by the additional insureds. INSURANCE REQUIREMENT Lessee shall, at his own expense, take out and keep in force during the within tenancy, public liability insurance, in a company or companies to be approved by the Lessor, to protect the City of Newport Beach, its officers and employees against any liability, including negligence of the City, to any person incident to the use of, or resulting from injury to, or death of, any person occuring in, or about the demised premises, in the amount of not less than $500 000 to insure against the claim of one person; in the amount of not less thgn $100,000.00 aggainst the claims of two or more persons resulting from any one accident; and $Z,oDD,000.00 for damage to property. Said policies shall obligate the insurance carriers to notify the Newport Beach City Manager in writing, not less than fifteen (15) days prior to the cancellation thereof, or any other changes affecting the coverage of the policies. Lessee shall furnish as proof of public liability insurance, a fully executed copy of City form, "Certificate of Insurance for Lease of City Property" and "City Property Endorsement." Lessee agrees that, if Lessee does not keep such insurance in full force and effect, Lessor may take out insurance and pay the premiums thereon, and the repayment thereof shall be deemed to be additional rental. This endorsement countersigned by an authorized representative of the Company or Organization becomes applicable endorsement number Effective Date of Policy: Expiration Date of Policy: Dated: 19 .at (State) Name of Agent or Broker: Address of Agent or Broker: Countersigned By: (Authorized Representative) IMPORTANT — THIS FORM IS THE ONLY CERTIFICATE OF INSURANCE ACCEPTABLE TO THE CITY OF NEWPORT BEACH OFFICE OF THE MANAGER August 1972 a LICENSE AGREEMENT C-I NEWPORT AND BALBOA OCEAN PIERS THIS AGREEMENT, made and entered into this day of , 1976, between the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "City" and NOEL M. PHOENIX and BETTY LOU PHOENIX, hereinafter referred to as "Licensee "; W I T N E S S E T H: WHEREAS, the City is the owner and is in possession and control of certain piers known as Newport Pier and Balboa Pier and located in the City of Newport Beach, which extend into and over the water of the Pacific Ocean at the extensions of McFadden Place and Main Street, which piers are used by the general public for the purpose of fishing and other recreation; and WHEREAS, it is the opinion of the City Council that it is advisable that the operation and the maintenance of the lunch stands, live bait and tackle concessions currently in operation on said piers be continued for the use and convenience of the public and all persons using the pier for fishing and recreational purposes; and WHEREAS, there is in effect a license agreement authoriz- ing the maintenance of concessions on the Newport and Balboa Piers, between the City of Newport Beach and Noel M. Phoenix and Betty Lou Phoenix, which expired on December 31, 1975; and WHEREAS, Noel M. Phoenix and Betty Lou Phoenix wish to continue as the Licensee for the concessions on both the Newport and Balboa Piers under a new license agreement covering both piers; and WHEREAS, the proposed arrangement is mutually agreeable to City and the Licensee. t Ll NOW, THEREFORE, in consideration of the payments hereinafter specified and the faithful performance of the other covenants of this agreement by Licensee, City hereby grants to Licensee a license, privilege and right to operate lunch stands, live bait and tackle concessions on said piers subject to the following terms, covenants and conditions: 1. LICENSE. (a) City hereby grants to Licensee the exclusive right, privilege and concession to conduct lunch stands, live bait and fishing tackle concessions on the Newport Pier and Balboa Pier for the vending of light foods and sandwiches, soft drinks, coffee, ice cream or ice cream products, cigars, cigarettes and tobaccos, candies, chewing gum, suntan lotions, film, sunglasses, and such items of fishing tackle as poles, lines, hooks, lures and weights, the sale of live bait and for the rental of various items of fishing equipment and for the sale and rental of such other items of a similar nature usually sold or rented at or on a pier over the Pacific Ocean the sale of which items shall be subject to the prior written approval of the City Manager. Licensee agrees to provide all necessary fixtures, goods, merchandise, labor and equipment required for the vending or renting of the above items or any other items permitted to be sold or rented. (b) City reserves the right to prohibit the use, display, sale or rental of any machine, item or article which it deems objectionable or beyond the scope of merchandise deemed necessary by City for proper service to the public. This includes but is not limited to the right to restrict or prohibit vending machines of all kinds and machines producing music or any other noise or sound. Prices shall be fixed by Licensee, but must not be in excess of prevailing prices in the City of Newport Beach for similar products, and City reserves the right to establish and from time to time revise a schedule of maximum prices for any or -2- 0 • all items sold or rented to the public by Licensee. All food and beverage products sold shall be of uniform high quality, and failure to maintain quality deemed satisfactory by City shall be deemed a breach of this agreement. Unimpaired use of the Newport Pier and Balboa Pier by the public is to be maintained throughout the term of the license agreement, exclusive of the structures maintained by Licensee on said Piers. (c) Licensee shall be subject to all state and local laws, rules and regulations and shall pay taxes lawfully assessed,prior to delinquency,and shall obtain and display at all times a business license and all permits required by the appropriate county, city or state health authorities certifying that the premises occupied, the equipment, the products sold, and the method of selling meet all current regulations, includ- ing health regulations. 2. TERM OF AGREEMENT. (a) This Agreement shall be in effect from February 1, 1976 until January 31, 1978, unless sooner terminated as hereinafter provided. (b) During the term of this Agreement, Licensee may remain open for business daily at any time, but shall keep the lunch stands, live bait and tackle concessions open for business on every day,at least from 10:00 A.M. to 6:00 P.M.,from June 15 to September 30, all dates inclusive, during each year. Different dates and hours may be fixed by Licensee with the approval of the City. Licensee shall use his best efforts to open during the winter months, weather and other conditions permitting. 3. COMPENSATION TO CITY. Licensee shall pay to City the following amounts as consideration for this license: (a) From February 1, 1976 through January 31, 1978, Licensee shall pay to City a guaranteed minimum monthly payment of Six Hundred Sixty Dollars ($660.00) or ten percent (10 %) of the monthly gross receipts from all income received on all concessions on said Piers, whichever sum may be larger. Payment -3- 0 0 of the percentages of gross receipts shall be made to City monthly on or before the twentieth day of the month following the month of operation. In the event the sum of the percentages of monthly gross receipts does not equal the guaranteed minimum monthly rental, in the months during which the guaranteed minimum is required, then Licensee shall pay to City said minimum monthly payment on or before the twentieth day of the month follow- ing the month of operation. Commencing February 1, 1977, the minimum monthly payment shall be adjusted based upon minimum monthly payment which bears the same relation to the sum of Six Hundred and Sixty Dollars ($660.00) per month, as the United States Department of Labor, Consumer Price Index, all items, Los Angeles - Long Beach Area (1967 equals 100) as of July, 1977, or the latest then available Labor Consumer Price Index, bears to said Consumer Price Index as of January 1, 1976, (hereinafter called the "BASE "), which is agreed to be / 6 31 7 If the 1967 equals 100 calculation of Consumer Price Index should thereafter be changed, then the Base shall be adjusted to correspond to such change in the Consumer Price Index. In the event the Department of Labor shall cease to publish such index figures, then a similar index published by the United States Government or such other government entity shall be mutually agreed upon by the parties hereto and such new index shall be used for the computation hereunder. If the parties cannot agree upon a substitute index, adjustment of rent hereunder shall be by arbitration, in accordance with the arbitration laws of the State of California, as supplemented by the rules then obtaining of the American Arbitration Association. (b) The term "gross receipts" wherever used in this agreement, is intended to and shall mean all monies, property or any other thing of value received by Licensee through the operation of said concession, or from any other business or activity C� carried on upon said area or any portion thereof, or from any other use of said area or any portion thereof by Licensee, or others with his approval, without any deduction or deductions; it being understood, however, that the term "gross receipts" shall not include any sales or excise taxes imposed by any govern- mental entity and collected by Licensee or deposits made with Licensee to guarantee the return of rental equipment. (c) Licensee shall maintain and use cash registers for each and every sale or rental at each place where money is received for all sales of goods and rentals of equipment. Licensee shall keep separate income records for each business on each Pier, which records are subject to reasonable inspection at any time by City. Copies of all income records shall be retained by Licensee during the term of this agreement and for a period of two (2) years following the end of each year of the term of this license. Licensee shall not destroy such record, or any part thereof, without the written consent of City. (d) All payments shall be to the City at the office of the Director of Finance in the City Hall. 4. POSTING OF RATES AND PRICES, ADVERTISING SIGNS, TRADE NAME (a) Licensee shall post rates and prices on said Piers at such places as may be designated by City. (b) All advertising matter to be published or circulated by or on behalf of Licensee shall be subject to approval in writing by City. Upon written request having been made, all advertising matter shall thereafter be submitted to City for approval prior to publication or circulation. (c) Licensee shall not place or allow any signs, placards, or advertising matter to be placed or maintained on, or attached to, the buildings or elsewhere on said Piers without the prior written consent of City, and such business signs shall -5- be placed, maintained and attached in such manner as City prescribes prior to such placing. Any signs placed in said area shall be removed promptly upon request by City. (d) Licensee shall not use any trade name, style or title in any way in the conduct of the business without the same having been approved by City in writing. Licensee shall protect and hold City harmless against all claims and actions arising from use of any name, style or title even though the same has received prior approval of City. 5. ASSIGNMENT. This License Agreement shall not be sold, assigned, transferred, mortgaged, pledged or hypothecated by Licensee without the prior written consent of City, nor shall Licensee sublet the premises or any part thereof or permit the same to be occupied by any other person whomsoever without the prior written approval of City. 6. OPERATION OF BUSINESS. Licensee agrees to assume said right, privilege, and concession hereby granted and to operate said concessions on the Newport Pier and the Balboa Pier for the purposes and in the manner and according to the terms and conditions herein stated, reserving, however, to City the right of ingress and egress to inspect said Piers and all build- ings, equipment and fixtures thereon, as deemed necessary by City. In accepting the license hereby granted, Licensee understands that the volume of business to be done and the quantity of food, beverages and service to the public to be required are subject to fluctuation and depend upon season and the weather and other unpredictable factors. Notwithstanding the uncertainties involved, Licensee agrees to supply the demand as it arises and to maintain an adequate supply of labor, food, beverages and equipment to do so. Licensee further agrees to use his best effort to upgrade and encourage business and public use of said Piers and license businesses. 0 0 7. UTILITIES AND SEWERAGE. Newport Beach water is available to the buildings on the piers. License shall be entitled to water service under the same terms as any other occupant of the premises of the City and shall pay the same fees, rate or rates as any other occupant. Newport Beach sewer service is not available to the buildings on the piers. Licensee shall provide and maintain,at its sole cost and expense,any chemical toilets and other appurtenant equipment for sewage disposal required by the Orange County Health Department in the operation of the businesses. Licensee shall make arrangements for such other utility services as are necessary for the operation of the businesses and shall promptly pay all charges for utilities when due. 8. MAINTENANCE AND REPAIRS The buildings and the pipe lines, conduits, electrical equipment and other equipment used for the purpose of storing and selling live bait on said Piers are the property of City. Licensee agrees to keep the buildings and all of said equipment in good condition and repair to the satisfaction of the City and shall, as necessary, replace any such equipment, at its own expense,and shall turn the above mentioned equipment over to the City at the end or other termination of this license agreement in as good condition as it is at the time of execution of this agreement, reasonable wear excepted. Licensee shall bring the existing building up to City Building Code standards, where applicable, within ninety (90) days after execution hereof. Licensee's obligation includes,but is not limited to,the exterior walls and roofs, interior partitions of the buildings, window frames, doors, interior and exterior painting, and repair and replacement of windows in the buildings -7- If any exterior or • 0 interior painting or repair is required and Licensee fails or refuses to so paint or repair, City shall cause the painting or repair to be done at the expense of Licensee, after ten (10) days' written notice from City to do specific items of mainten- ance or repair as required herein. Licensee shall reimburse the City for such cost within fifteen (15) days after being billed therefor to the City. In addition, the exterior color scheme and signing of all pier buildings shall be subject to the approval of the City Manager. 9. DESTRUCTION OF PREMISES. It is further under- stood and agreed that City need not replace the buildings, piers, or any parts thereof, or any of the City equipment used in connection with Licensee's operations under this license agree- ment in case the same should be destroyed by fire, accident, catastrophe or other cause. Should the buildings, piers or said equipment be so destroyed or damaged to the extent Licensee finds it uneconomical to repair the same and continue to operate the businesses, he may terminate this agreement by giving thirty (30) days' written notice to the City. If any such damage or destruction should occur and Licensee undertakes the repair of either pier, building or facilities, his obligation to pay rent shall be suspended on the particular pier concession so affected for the period of time his business operations are completely and necessarily suspended, but not to exceed ninety (90) days, with the rental to continue on the unaffected pier concession figured on the basis of Four Hundred and Thirty Dollars ($430.00) per month for Newport Pier and Two Hundred and Thirty Dollars ($230.00) per month for the Balboa Pier. 10. INDEPENDENT CONTRACTOR City shall have no interest in the operation of the lunch stands, live bait or tackle concessions, and shall not be responsible for any injury or damage to the person or property of Licensee suffered or sustained in the operation of the lunch stands or live bait and tackle concessions. It is understood and agreed that Licensee operates both the lunch stands and live bait and tackle concessions as an independent contractor. 11. PUBLIC LIABILITY INSURANCE. Licensee shall obtain such necessary insurance, in the amounts and form as set forth in the "CITY OF NEWPORT BEACH CERTIFICATE OF INSURANCE FOR LEASE OF CITY PROPERTY" and shall cause said certificate to be executed and filed with the City Clerk of the City of Newport Beach. The terms of said certificates are, by this reference, incorporated herein as if fully set forth. 12. WORKMAN'S COMPENSATION INSURANCE. Licensee shall obtain and maintain appropriate workman's compensation insurance coverage for all employees of Licensee. 13. PIER AREAS CLEANING. Licensee shall keep the piers, decks, interior and exterior of the buildings, benches and areas set aside for fish cleaning of the piers clean and sanitary and free from rubbish, debris, and garbage of every kind at all times throughout the term of this license agreement to the satisfaction of the City Manager. Licensee agrees to permit only one vehicle owned and operated by him or his employees at any one time on either pier for serving his businesses and to take reasonable steps to prevent vendors from driving vehicles onto the piers. 14. FAILURE TO MAINTAIN AND CLEAN. If Licensee fails to comply with the requirements of Paragraph 13 of this agreement with regard to maintenance and cleaning of the buildings and equipment, the City Manager shall notify Licensee by personal service or by certified mail of such failure, and if the deficiencies are not corrected by Licensee within five (5) days following the receipt of the notice, the City Manager may proceed to have the work done and Licensee shall be obligated to reimburse City for 0 0 the costs thereof. Failure on the part of Licensee to reimburse City within thirty (30) days of receipt of such billing shall result in automatic termination of this agreement. 15. TERMINATION. It is understood and agreed that the City Council may, upon sixty (60) days' written notice, terminate this license agreement for any reason. Licensee may terminate for any reason upon giving ninety (90) days' written notice to the City. Upon termination all rights of Licensee shall end and Licensee shall, within thirty (30) days after the date of termination, remove all equipment and materials belonging to him and, in the event he fails to do so, all equipment and materials remaining shall be deemed abandoned by him and shall become the property of City, with full power and authority to control, use or dispose of same. In case of termination, Licensee shall have no obligation to pay rent for any time subsequent to the date of termination. 16. ADMINISTRATION OF AGREEMENT. For the purpose of the administration of this license agreement by City, "City" shall mean the City Manager and any officer and employee of the City authorized by him to administer to contract. If Licensee is dissatisfied with any action or decision of the City, Licensee may take the matter to the City Council for review. The decision by the City Council shall be final. 17. BOOKS OF ACCOUNT. Licensee agrees to keep books of account in connection with the operation of said concessions in a manner satisfactory to City, which books shall be open at all times to City for the purpose of inspection or audit. For each calendar year or portion thereof at the beginning or end of the agreement, unless a different reporting period has been approved by City, Licensee shall submit within forty -five (45) days after the close of the reporting period such financial statements of its operations as may be requested by City. 18. NOTICES. (a) All notices herein provided to -10- r • • be given, or which may be given, by either party to the other, shall be deemed to have been fully given when made in writing and deposited in the United States mail at Newport Beach, California, certified and postage prepaid, and addressed as follows: To the Licensee at: Noel M. and Betty L. Phoenix And to the City at: City of Newport Beach Attention: City Manager City Hall 3300 Newport Blvd. Newport Beach, California (b) The address to which the notices shall or may be mailed as aforesaid by either party shall or may be changed by written notice, given by such party to the other, as hereinbefore provided; but nothing herein contained shall preclude the giving of any such notice by personal service. 19. CONTRACTUAL RIGHTS ONLY. The parties agree that Licensee is not a lessee or tenant of the premises or any part thereof and that the only rights of Licensee are those provided in this agreement. Should Licensee be deemed a lessee or tenant, Licensee hereby specifically waives all rights under Section 1942 of the Civil Code of the State of California. 20. LICENSEE TO PAY COST OF LITIGATION. Licensee agrees to pay City all costs and expenses, including reasonable attorney's fees, incurred by City in any action brought by City to enforce the terms of this agreement. 21. LIMITED WAIVER. No waiver by City of any term or condition of the contract or of any breach thereof by Licensee shall constitute a waiver of any other term or condition or of any other or future breach. 22. AUTOMATIC TERMINATION Should any person other than Licensee secure possession of the licensed portions of the Newport Pier or Balboa Pier or of any part thereof or secure any -11- 0 0 rights under this contract by a writ of attachment or execution or by any voluntary or involuntary assignment or by any petition, receivership or proceedings in bankruptcy or any other operation of law whatsoever, and remain in possession or maintain any right or rights for a period of five (5) days, this agreement shall automatically terminate without any action on part of City, and City may enter and take possession of the premises, buildings and fixtures and remove all persons and property therefrom notwithstanding any other provisions of law or of this agreement. 23. PROMPT PERFORMANCE REQUIRED. Time is of the essence of this agreement. 24. CANCELLATION OF EXISTING AGREEMENT. It is mutually agreed that the existing license agreement for concessions on the Newport and Balboa Piers dated March 26, 1973 between the City and Noel M. and Betty Lou Phoenix is hereby cancelled as of the effective date of this agreement. IN WITNESS WHEREOF, the parties have executed this agreement as of the date first /above written. NOEL PHO' NIX ATTEST: Citv Clerk , BETTY IAOU PHOENIX CITY OF NEWPORT BEACH -12 • i RESOLUTION NO. 8_ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NOEL M. PHOENIX AND BETTY L. PHOENIX (Newport and Balboa Ocean Piers) WHEREAS, the City is the owner of the Newport and Balboa Ocean Piers; and WHEREAS, it is in the public interest to provide certain services to the public on the piers, including snack bar, live bait, and tackle concessions; and WHEREAS, the City has previously entered into license agreements with Noel M. and Betty L. Phoenix for the operation and maintenance of the concessions at the Newport and Balboa Ocean Piers; and WHEREAS, Noel M. and Betty L. Phoenix have presented to the City Council of the City of Newport Beach a license agree- ment for the operation and maintenance of concessions at the Newport and Balboa Ocean Piers; and WHEREAS, the City Council has considered the terms and conditions of said license agreement and found them to be fair and equitable; and WHEREAS, the City Council finds that this license cannot have any possible significant effect on the environment; NOW, THEREFORE, BE IT RESOLVED that the License Agree- ment for operation of concessions on the Newport and Balboa Ocean Piers is hereby approved, and the Mayor and City Clerk are hereby authorized and directed to execute the same on behalf of the City of Newport Beach. BE IT FURTHER RESOLVED that this License Agreement 0 0 is not covered by the requirements of the California Environ- mental Quality Act because it could not have a significant effect on the environment. ADOPTED this 9th day of February, 1976. ATTEST: City Clerk -2- HRC:yz 2/5/76