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
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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
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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
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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.
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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
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If any exterior or
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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
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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
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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
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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
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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
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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
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HRC:yz
2/5/76