Loading...
HomeMy WebLinkAboutC-1901 - Newport Pier Concession, Fisherman's Restaurant (see Community Services Park)RECEIVED JUL - 2 2002 L_Offl -'Of CITY ATTORNEY'S OFFICE Fi3ri3 SF.AC Rainier Tower Cirf OF NEW 6 Ronald G Housh P.S. 381 -1341 1301 Fifth Avenue, Suite 2600 f P. Fax: (206) 587 -0579 Seattle, Washington 98101 a -Mail: housh @msn.com June 27, 2002 Via Certified Mail. Return Receipt Requested Robin Clauson City of Newport Beach Office of the City Attomey P. O. Box 1768 Newport Beach, California 92658 -8915 Re: Hal Griffith - Newport Beach Dear Robin: Enclosed please find the original counterpart of the Settlement Agreement and Amendment to Concession Agreement signed by Hal Griffith on behalf of HEG Enterprises, Inc. Any notice of non - payment of monthly rent and /or percentage rent pursuant to Section 4 (or otherwise) should be provided to HEG Enterprises, Inc. as Concessionaire as follows: HEG Enterprises, Inc. 1301 Alaskan Way Seattle, Washington 98101 Phone: 206- 623 -8600 Fax: 206 - 343 -9173 and to me as the representative as follows: Ronald G. Housh Ronald G. Housh, P.S. 1301 Fifth Avenue, Suite 2600 Seattle, Washington 98101 Phone: 206 - 381 -1341 Fax: 206- 587 -0579 Email: housh@msn.com 0 0 Robin Clausen June 27, 2002 Page 2 Thank you. Very truly yours, RON G. H SH, P.S. 7 Ronald G. Housh RGH /mrt Enclosure cc: Hal Griffith, HEG Enterprises, Inc. GRIFFEM nf270203 • C-1101 SETTLEMENT AGREEMENT AND AMENDMENT TO CONCESSION AGREEMENT This Settlement Agreement and Amendment to Concession Agreement is made and entered into on June Ll 2002, by and between the City of Newport Beach (the "City "), HEG Enterprises, Inc, ( "Concessionaire "), and Newport Beach Fish Co., Inc. and Hwa Hee Park, aka Olive Park (collectively "Subconcessionaire "), with reference to the following: RECITALS A. In November of 1985 the City, Concessionaire and Wolfgang and Erika Mertig (Nlf Yzc entered into a certain Concession Agreement (the "Concession Agreement ") by which Concessionaire was granted the right to use the Premises described therein for fifteen year term, together with two five year options to extend the term of the Concession Agreement. A true and correct copy of the Concession Agreement is attached as Exhibit "A" and incorporated by reference. The term of the Concession Agreement commenced on June 14, 1987 and the initial fifteen- year term expires on June 15, 2002. The 1987 Concession Agreement, among other obligations, required the Concessionaire to pay Monthly Rent and Percentage Rent. The Monthly Rent was initially $1,000, but was subject to annual adjustment based on increases in the consumer price index. Percentage Rent was 5% of monthly Gross Sales, subject to an annual reconciliation. B. In or about May of 1990, the City and Concessionaire entered into an amendment of the Concession Agreement whereby HEG Enterprises was made sole concessionaire. A true and correct copy of the Amendment is attached as Exhibit "B" and incorporated by reference. C. Thereafter, Concessionaire entered into a series of agreements with Subconcessionaire, whereby Concessionaire subleased its rights under the Concession Agreement to Subconcessionaire. D. In June of 1994, the City, Concessionaire and Subconcessionaire executed a certain "Consent to Subconcession Agreement" (effective June 1, 1994), which, in part, provided the City's consent for Subconcessionaire to sublease the Concession from Concessionaire. A true and correct copy of the Consent to Subconcession Agreement is attached as Exhibit "C" and incorporated by reference. E. On or about January 8, 2002, the City gave formal notice of default in payment of rent and other lease provisions to Concessionaire and Subconcessionaire. A dispute has arisen among the City, Concessionaire and Subconcessionaire regarding the payment to the City of Monthly Rent, Percentage Rents, the exercise of the option to extend the term of the Concession Agreement and the performance of other terms and conditions of the Concession Agreement. The City, Concessionaire and Subconcessionaire desire to resolve the dispute by agreement. VA 0 Now, for good and valuable consideration the City, Concessionaire and Subconcessionaire agree as follows: 1. Cure of Rental Defaults. (a) Upon the signing of this Agreement, Subconcessionaire shall pay the City the sum of $ 43,939.71; (b) Notwithstanding paragraph 11 of the Concession Agreement, which provides that the City is not responsible to Concessionaire for any "interruption or reduction of Concessionaire's business" during repairs of the Pier or the surrounding area, and for purposes of .this Settlement Agreement only; the City waives any Monthly Rent due or Percentage Rent due for the period of December 1, 2001 through April 30th, 2002, as a result of ongoing repairs at and around the Pier. (c) Upon the signing of this Agreement and the receipt of the $ 43,939.71 payment, City shall deem cured all rental defaults, up to and including payment due for the month of April 2002. 2. Records and Rental Payments. (a) Within thirty (30) days following the signing of this Agreement, Subconcessionaire shall provide the City with the itemized statement of 3 0 Gross Sales for calendar years 2000 and 2001, certified to be correct by an accountant. The City will not require an audit for those years. (b) The first sentence of Section 7(B) of the Concession Agreement is amended to read as follows: "In addition to the Monthly Rent specified above, on or before the twentieth (20"') day of each month. Concessionaire shall pay the City a sum equal to five percent (5%) of Concessionaire's Gross Sales during each month. " 3. Restaurant Management Improvements and Restaurant Reopening. (a) The Concession Agreement is amended to add Subdivision 5 to Subsection B of Section 7 as follows: "5: Improvement of Operations at Premises. Sub concessionaire shall exercise its best efforts to maximize Gross Sales from the Premises. On or before June 30, 2002, Sub concessionaire shall provide the City and Concessionaire with Sub concessionaire's business plan for improvement of Gross Sales from the Premises. Concessionaire shall review Sub concessionaire's business plan and advise the City, in writing, of whether the business plan offered is commercially reasonable. Sub concessionaire shall prepare and Concessionaire shall review in like manner and provide the City with Sub D • • concessionaire's annual business plan on or before the 20th day of January of each year during the remaining term of the Concession Agreement,. assuming that the Concession Agreement is extended. The principal of Subconcessionaire, Hwa Hee Park, aka Olive Park, or such other person approved in writing by the City, shall be present at the Premises to oversee operations at the Premises at least, four (4) hours per week for fifty weeks per year throughout each year during the term of the Concession Agreement. Subconcessionaire shall provide Concessionaire and the City with Quarterly Reports, in the format attached hereto as Exhibit A, summarizing the following activities during the preceding three -month period. i. Significant operational changes, including hours of operation, scheduling of special events, and special promotions, ii. The name and 24 -hour phone number to contact manager of the restaurant along with any hiring and firing of management level personnel, iii. A log of its maintenance and repair measures made to or about the Premises during the preceding quarter. Quarterly Reports shall be due on January 20th (the report for October, November and December), April 201h, (for. R January, February and March), July 200 (for April, May and June) and October 200 (for August, September and October.) (b) Water Quality Protection. Concessionaire and Subconcessionaire agrees to manage restaurant and maintenance activities according to the water quality management practices (BMPs), attached hereto as Exhibit D and incorporated into this Agreement by reference. (c) The City, Concessionaire and Sub concessionaire acknowledge that Subconcessionaire has resumed operations at the Premises Concessionaire and Subconcessionaire waive any and all claims against the City arising from the closure of the pier, or the work ongoing during renovations, including but not limited to any claims for lost profits or diminution in value of the business at the Premises. 4. Future Delinquent Payments/Termination. (a) Concessionaire and Subconcessionaire agree that monthly rent, as adjusted pursuant to Subsection A of Section 7 of the Concession Agreement, is, as of the date of this Settlement Agreement, $1,560.91 per month, and will be subject to the next annual adjustment on July 1, 2004. Monthly rent is due on the twentieth (20"') day of each month. Percentage rent is due on twentieth (20th) day of the month, and is based on five percent (5 %) of the preceding month's Gross Sales. Sub concessionaire's next payment of monthly rent is May 20, 2002 and percentage rent will be 2 due on June 20, 2002, and will be based on Gross Sales for the month of May 2002. (b) The Concession Agreement is amended to add Subsection E to Section 7 as follows: E Payment Methodology, Successive Non - payment and Termination. 1) Payment Methodology. Subconcessionaire shall make the Monthly and Percentage Rent rental payments directed by this Settlement Agreement and the Concession Agreement directly to the City. Payments shall, unless otherwise approved in writing by the Assistant City Manager, be made via authorization to the City Revenue division to automatically deduct rent on the due date from a bank checking or deposit account. Subconcessionaire agrees to provide sufficient funds in the directed account to cover the rent due. If upon the due date insufficient funds are reported by the bank, City shall provide notice to Concessionaire and Subconcessionaire of such insufficient funds as provided below. Rent payments are in addition to any sums payable between Concessionaire and Subconcessionaire under any agreements between them. 2) Successive Non - payment and Termination. In order to resolve the numerous long- standing defaults in the payment of rent, Concessionaire and Subconcessionaire agree that if 7 0 the City fails to receive payment of Monthly Rent or Percentage Rent the date the rent is due, two (2) times within any six (6) month period rSuccessive Non-payment) during the term of the Concession Agreement, or any extension thereof, City may, subject to the notice provisions of subparagraph 3 below, terminate the Concession Agreement and give written notice of termination at any time thereafter, requiring Concessionaire and Subconcessionaire to vacate on not less than thirty (30) days notice. Such notice shall constitute a notice to terminate pursuant to California Civil Code § 1946, and the City may recover possession as provided in California Code of Civil Procedure § 1161, subparagraph 5. In the event the Concession Agreement is terminated for Successive Non - payment, Concessionaire and Subconcessionaire waive any right to relief from forfeiture, including but not limited to any claim to relief from forfeiture under California Code of Civil Procedure § 1179 or California Civil Code § 3275. This remedy is cumulative with any and all other remedies provided in the Concession Agreement or as are available at law or in equity. 3) Notice of Default. Notice of non-payment of Monthly Rent and /or Percentage Rent under this section 4(b)(E) shall be provided to Concessionaire and Subconcessionaire and a 93 0 0 representative to the name, facsimile number, and e-mail address as the parties may designate in writing to the Assistant City Manager. Rent shall not be considered late if paid within ten (10) days from the date notice is given. 5 Exercise of Option to Extend. Upon payment of the sum provided in paragraph 1 (a) herein, the City recognizes and approves Concessionaire's exercise of its option as being effective to constitute the notice in writing provided under Section 3(C) of the Concession Agreement. In the event that Concessionaire is not in default under the Concession Agreement or this Settlement Agreement as of June 15"', 2002, and in the event such default is not cured following not less than ten (10) days written notice from the City to Concessionaire the term of the Concession Agreement shall, be extended for five (5) years commencing June 15"', 2002. 6. Estoppel by Concessionaire and Subconcessionaire. Concessionaire and Subconcessionaire acknowledge and affirmatively represent that, as of the date of the execution of this Agreement, the City is in full compliance with all of its obligations under the Concession Agreement, and that there are no conditions, events or omissions, that now exist, or with the passage of time may cause the City to be in default under the terms of the Concession Agreement. The City has executed this Agreement in reliance on this representation. Concessionaire and Sub concessionaire hereby waive any and all past and existing claims that either of them have against the City, including all known and unknown claims against N 9 • the City, including but not limited to all claims arising out of the City's assertions of non - payment and default under the Concession Agreement, all claims for any alleged breach of quiet enjoyment under the Concession Agreement, the City's assertions concerning the expiration of the initial option to extend the Concession Agreements, the facts stated in the Recitals, and otherwise, and waive the protections of California Civil Code §1542, which provides: "This general release does not extend to claims which the creditor does riot know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially effected his settlement with the debtor." 7. Estoppel by City. The City acknowledges and affirmatively represents that, upon execution of this Agreement the City hereby deems cured all past defaults. 8. Same Terms. Except as modified herein, the terms and conditions of the Concession Agreement remain in full force and effect. 9. Representation by Counsel. Each party to this Agreement hereby confirms and acknowledges that he or it has read and understands this Agreement and that he or it has been fully advised and represented by counsel with respect to this Agreement and all negotiations giving rise to it, and that he or it has fully discussed this Agreement and all of its terms, consequences and ramifications with his or its respective counsel. 10 0 10. Authority to Execute. Each individual signing this Agreement and any documents executed in connection with this Agreement, whether signed individually or on behalf of any person or entity, warrants and represents that he or she has full authority to execute on behalf of the party on whose behalf he or she so signs. Each party shall execute such documents as are necessary or appropriate to fully implement the provisions of this Agreement. 11. Invalidity of One Provision. If any provision of this Agreement is held to be invalid, void, or unenforceable, the remaining provisions shall, nevertheless, remain in full force and effect, and shall in no way .be affected, impaired, or invalidated. 12. Governing Law. This Agreement is made and entered into in the State of California and shall in all respects be interpreted, enforced, and governed by and under the laws of said State. 13. Modification. This agreement may be modified only by a written agreement executed by all of the parties hereto. 14. Counterparts. This Agreement is executed in counterparts, each is hereby declared to be an original; all, however, shall constitute but one and the same Agreement. In any action or proceeding, any photographic, photostatic, or other copy of this Agreement may be introduced in evidence without foundation. 11 0 0 15. Future Attorneys' Fees. In the event of any dispute between the parties hereto involving the covenants and conditions herein - contained or arising out of the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable expenses, attorney's fees and costs. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. CITY OF NEWPORT BEACH A Municipal Corporation Tod W. Ridgeway, Mayor ATTEST: LaVonne Harkless, City Clerk H.E.G. ENTERPRISES, INC. A 1 Walrifffifith, F:\users\cat\sharedkda\pleadings\NewportPier\Ag\052402.doc APPROVED AS TO FORM: Robin L. Clauson, Assistant City Attorney NEWPORT BEACH FISH COMPANY, INC. Hwa Hee Park, President 12 0 15. Future Attorneys' Fees. In the event of any dispute between the parties hereto involving the covenants and conditions herein- contained or arising out of the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable expenses, attorney's fees and costs. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. CITY OF NEWPORT BEACH A Municipal Corporation .. W. Ridgewa, - . "114 ATTEST: �V �. A�j • rV[9�, LaVonne Harkless, City Clerk H.E.G. ENTERPRISES, INC. Hal Griffith, President APPROVED AS TO FORM: &A�� Robin L. Clauson, Assistant City Attorney F:\users\cat\shared\da\ pleadings \NewportPieeAg \052402.doc NEWPORT BEACH FISH COMPANY, INC. Hwa Hee Park, Pr9diden 12 EXHIBIT A QUARTERLY OPERATIONS REPORT Newport Pier Seafood and Sushi Period Covered: 1 -- Owner On -Site. I was on -site helping in the management of the Restaurant an average of _ hours per week this quarter. COMMENTS (if necessary): 2 -- Management Staff Changes. Our Restaurant manager, (insert name), reports that these changes in management staffing occurred during this quarter: No changes this.quarter 24 hour phone number to contact manager. IF CHANGES, DESCRIBE BRIEFLY: 3 -- Water Quality Protection. Please check all that apply: _ Restaurant staff swept the pier area daily. _ The "Good Operating Practices" wall poster is in place and readable. _ The Restaurant managers used their best efforts to reinforce the Good Operating Practices with staff involved in dishwashing, food preparation, and/or cleaning. Our Grease Interceptor was cleaned by a contractor: 0 times this quarter 1 time this quarter 2 times this quarter COMMENTS (if necessary): PLEASE FAX COMPLETED FORM TO 949 -644 -3020. b 8 y C C y ro m N. � E � n b c C7 � N b m 'C 10 0o m 5 5 RR. y M N N � z K ro � H £ z ro ro H O '•d H i24 to 0 r a m ti Di 0 m m N I m M ex. o�0 z � n C rn m C H 0 V 41 0 VP 4 gg4 O WTI J 0 n n 1Cz 1 V Iff C d r� z G7• H m3 ca x cz a w M ex. o�0 z � n C rn m C H 0 V 41 0 VP 4 gg4 O WTI J 0 n n 1Cz 1 V Iff aclli.u. CERTIFICATOOF INSURANCE 46 ISSUE DATE(MM/DDIYY) PRODUCER Dial Insurance Agency Post Office Box 74488 Los Angeles, Calif 90004 213- 389 -5959 INSURED Newport Beach Fish, Inc. #1 Newport Bay Pier Newport Beach CA 92633 07 -01 -94 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER, THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANIES AFFORDING COVERAGE COMPANY A BUCKEYE UNION LETTER COMPANY LETTER B INSURANCE CO OF THE STATE OF PA COMPANY C LETTER COMPANY D LETTER COMPANY E LETTER i DESCRIPTION OF OPERATIONSILOCATION &VEHICLUISPECIAL ITEMS CERTIFICATE HOLDER ADDITIONAL INSURED MR. KEN DELINO ASSISTANT CITY MANAGER CITY OF NEWPORT BEACH 3300 NEWPORT BLVD. P.O. BOX 1768 NEWPORT BEACH, CA 92658 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 10. DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. c ACORD 25 -S 47/90 C ( s _ CACORD CORPORATION 1990 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I DO .T TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMIT DATE (MM /DDM) DATE (MM/DO/YY) -- •- GENERAL LIABILITY -- - - -�— - GENERAL AGGREGATE S 2,000,000 X , COMMERCIAL GENERAL LIABILITY PRODUCT &COMP /OP AGG. S 1 OOO A CLAIMS MADE X OCCUR. PERSONAL & ADV. INJURY S 1,000,000 PCLOO1152 06/09/94 06/09/95 OWNER'S& CONTRACTOR'S PROT. EACH OCCURRENCE S 1,000,000 FIRE DAMAGE (Any one fire) B 100,000 MED. EXPENSE (Any one Person) S 5. 009 AUTOMOBILE LIABILITY COMBINED SINGLE S ANY AUTO LIMIT ALL OWNED AUTOS BODILY INJURY S .SCHEDULED AUTOS (Par Parson) HIRED AUTOS BODILY INJURY S NON -OWNED AUTOS (Per aoddem) GARAGE LIABILITY PROPERTY DAMAGE S EXCESS LIABILITY EACH OCCURRENCE $ UMBRELLA FORM AGGREGATE S OTHER THAN UMBRELLA FORM STATUTORY LIMITS WORKER'S COMPENSATION EACH ACCIDENT S AND DISEASE- POLICY LIMIT S EMPLOYERS' LIABILITY DISEASE -EACH EMPLOYEE S OTHER REAL PROPERTY $350,000 B PROPERTY CP4045269R 06/09/94 06/09/95 PERSONAL PROP $100,000 BUSINESS INCO $100,000 DESCRIPTION OF OPERATIONSILOCATION &VEHICLUISPECIAL ITEMS CERTIFICATE HOLDER ADDITIONAL INSURED MR. KEN DELINO ASSISTANT CITY MANAGER CITY OF NEWPORT BEACH 3300 NEWPORT BLVD. P.O. BOX 1768 NEWPORT BEACH, CA 92658 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 10. DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. c ACORD 25 -S 47/90 C ( s _ CACORD CORPORATION 1990 00 0 kr IMMOR10 Hsi; 11T ISSUE DATE (MMMD/M ... ........ ......... 06/25/94 N- PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND kLLAINCE BROKERAGE GROUP CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE D90 WESTBURY ROAD POLICIES BELOW. COMPANIES AFFORDING COVERAGE ;IESTBURY NY 11590 COMPANY A LETTER BUCKEYE UNION (516) 333-7300 COMPANY B LETTER INSURANCE CO OF THE STATE OF PA INSURED Newport Fish Company, Inc 01 Newport Bay Pier COMPANY c LETTER COMPANY D LETTER Newport Beach CA 92633 COMPANY E LETTER (213) 738-7306 ... ... - 7-4 8 wm u THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTACO TYPE OF INSURANCE POLICY POLICYIEFFECTIVE DATE (MMIOD/yy) POUCYEXPIRATiON DATE LMWDD(YY) LIMITS k GENERAL LIABILITY GENERAL AGGREGATE s2,000,000 X PRODUCTS - COMP /OP AGO. S110001000 COMMERCIAL GENERAL UABILITY CLAIMS MADE X] OCCUR. PCL001152 06/09/94 06/09/95 PERSONAL& AOV. INJURY $1,000,000 OWNERS&CONTRACTOR'S PROT. EACH OCCURRENCE $1,000,000 FIRE DAMAGE (Any one fire) $100,000 MED.EXPENSE(Anyoneperso $5,000 AUTOMOBILE LIABILITY ANY AUTO COMBINED SINGLE LIMIT BODILY INJURY (Per Pe—) $ ALL OWNED AUTOS SCHEDULED AUTOS 130BILYtNJURY (Per a=lclent) $ HIRED AUTOS NON-OWNED AUTOS PROPERTY DAMAGE $ GARAGE LIABILITY EXCESS LIABILITY EACH OCCURRENCE $ AGGREGATE UMBRELLA FORM OTHER THAN UMBRELLA FORM STATUTORY LIMITS WORKER'S COMPENSATION EACH ACCIDENT $ AND DISEASE - -POLICY LIMIT $ EMPLOYERS' LIABILITY DISEASE –EACH S E–EACH EMPLOYEE $ OTHER PROPERTY PROPERTY $350,000 L CP4045269R 06/09/94 06/09/95 ER So NAL PROP $100,000 SINESS INCO $100,000 DESCRIPTION OF OPERATIONS/LOCATIONSIVEHICLESISPMIAL ITEMS v �X ADDITIONAL INSURED SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE HAL E. GRIFFITH & JOAN I. GRIFFITH EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 10DAYSWRITTEN NOTICETO THE CERTIFICATE HOLDER NAMED TO THE 1301 ALASKA WAY LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR SEATTLE, WA 98101 LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED ESENTATIVE AC 4.0'43 .. .... #0 0 ► 9m -CT !§ 2 a� 2 c &$ L&A c §! CJA / ;\ � � !a Gc Ac/1isil. CERTIFICA10OF INSURANCE ISSUE DATE (MMIDDIYY) 11/ ^.3/92 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE S E D G W I C K JAMES O F W A DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE SUITE 1700 POLICIES BELOW. 01 FOURTH AVENUE COMPANIES AFFORDING COVERAGE ATTLE. WA 98121 COMPANY A LETTER THE AMERICAN INS. . COMPANY B INSURED LETTER COMPANY C GREAT WESTERN PACIFIC LETTER (AND AS PER ATTACHED ENDORSEMENT) COMPANY 1301 ALASKAN WAY LETTER SEATTLE. WA 98101 COMPANY LETTER COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO TYPE OF INSURANCE POLICY NUMBER LTR POLICY EFFECTIVE POLICY EXPIRATION LIMITS DATE (MM /DDNY) DATE (MMIDDIYY) A • GENERAL LIABILITY MXX80546476 10/30/92 10/30/93 GENERAL AGGREGATE $240OP000 X COMMERCIAL GENERAL LIABILITY PRODUCTS- COMP/OP AGO. $ 2 I 0 0 0/ 0 O C CLAIMS MADE. A OCCUR. PERSONAL 8 ADV. INJURY $ 1 t o o o'r oo o OWNER'S 8 CONTRACTOR'S PROT. EACH OCCURRENCE b 1 /COO / C 0 0 FIRE DAMAGE (Any one tire) E 1 0 0/ G o 0 MED. EXPENSE (Any one person) $ AUTOMOBILE LIABILITY COMBINED SINGLE S ANY AUTO LIMIT •ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per Person) HIRED AUTOS BODILY INJURY $ NON -OWNED AUTOS (Per accident) GARAGE LIABILITY PROPERTY DAMAGE $ EXCESS LIABILITY EACH OCCURRENCE E UMBRELLA FORM AGGREGATE $ OTHER THAN UMBRELLA FORM STATUTORY LIMITS WORKER'S COMPENSATION EACH ACCIDENT $ AND DISEASE— POLICY LIMIT $ EMPLOYERS' LIABILITY $ OTHER KhChIVEU 10►V 13 W DESCRIPTION OF OPERATIONS /LOCATIONS/VEHICLESlSPECIAL ITEMS PUBLIC WORKS LOCATION: NEWPORT BEACH PIER NEWPORT EACH AI .IF NEWPORT EEA Hx CA CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE jjT Y OF NEWPORT BEACH LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR C NEWPORT BLVD. LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. NEWFORT BEACH/ CA 92663 AUTHORIZED REfR§SENTATIVE ;,{ SF,gG�K JA$ES F` INC 4 _ /I�jA/ /i (it/,(,{,C�_ �L, �t� �®jAT ACORD 25 -S (7190) 0F7 CORPORATION 19N i5— ?4 E (VON e f • Named Insured: u i Great Western Pacific dba Yukon Jacks Galley Restaurant Fisherman's Restaurant Pirates Plunder Alaska Provisioners H.E.G. Enterprises, dba Fisherman's Restaurant H.E.G. Corp. dba The Ore House G & G Pacific Restaurant, Inc. dba The Grubstake Harold E. Griffith Assoc., Harold E. Griffith, Jr., and Joan Griffith, Individually Pier 57 Corporation T - INSURANCE COMPANY NAMEAND . ADDRESS . OF INSURED . CANCEL- LATION NON - RENEWAL RENEWAL OF POLICY NOTICE OF CANCELLATION, NONRENEWAL OR RENEWAL (California) Ask KIND OF Owners, Landlords & Tenants Liability POLICY NO.: 91CLP0110940 CANCELLATION OR TERMINATION WILL TAKE EFfECT AT: November 24, 1991 12:01 A.M. I DATE) (HOUR— STANDARD TIME) DATE OF MAILING: November 12 1991 ISSUED THROUGH AGENCY OR OFFICE AT: Swett & Crawford P. 0. Box 5557 Fresno Ca. Western Heritage Insurance Company John Giraudy s P. 0. Box 2968 RECEIVED Newport Beach, Ca. 92663 ,r NOVI8199i).. DEPM CITY MANAGER CITY OF NEWPORT BEACR v. t (Applicable item marked nl ❑You are hereby notified in accordance with the to I of a above mentioned policy that your insurance will cease at and from the hour and date mentioned above. If the premium has been paid, premium adjustment will be made as soon as practicable after cancellation becomes effective. If the premium has not been paid, a bill for the premium earned to the time of cancellation will be forwarded in due course. ❑ You are hereby notified in accordance with the terms and conditions of the above mentioned policy that your insurance will cease at and from the hour and date mentioned above due to nonpayment of premium. A bill for the premium earned to the time of cancellation will be forwarded in due course. You are hereby notified in accordance with the terms and conditions of the above mentioned policy, and in accordance with law, that your insurance will cease at and from the hour and date mentioned above. If the premium has been paid, premium adjustment will be made as soon as practicable after cancellation becomes effective. If the premium has not been paid, a bill for the premium earned to the time of cancellation will be forwarded in due course. ❑ Reason for cancellation: Nonpayment of premium. Reason(s) for cancellation (other than for nonpayment of premium): Company Election. See the 'Important Notices" section below for Additional Information Regarding the Reason(s) for Cancellation. ❑ You are hereby notified in accordance with the terms and conditions of the above mentioned policy, and in accordance with law, that the above men- tioned policy will expire effective at and from the hour and date mentioned above and the policy will NOT be renewed. Reasons) for nonrenewal: See the 'Important Notices" section below for Additional Information Regarding the Reasons) for Nonrenewal. ❑ You are hereby notified in accordance with California law that the above mentioned policy, which will expire on the above indicated date, will not be renewed by us, however, we are offering to replace your insurance with the same or broader coverage under another policy issued by an affiliated insurer. It will be assumed that our offer to renew your insurance through an affiliated company will be acceptable to you unless you advise otherwise. You may obtain in writing the reason(s) for the change in insurers by writing to us not more than one month following the expiration date of the policy. IMPORTANT Automobile Insurance Plan Information: You have been notified herewith that this Company does not desire to carry your automobile insurance any NOTICES longer. You are possibly eligible for automobile insurance through another insurer or under the California Automobile Assigned Risk Insurance Plan. Additional Information Regarding the Reason(s) for Cancellation /Nonrenewal: You have the right to know the specific items of information that support the reasons given for this decision and the identity of the source of that information. You also have the right to see and obtain copies of documents relating to this decision. If you ask us to correct, amend, or delete any information about you in our 'files and if we refuse to do so, you have the right to give us a concise statement of what you believe is the correct information. We will put your statement in our file so that anyone reviewing your file will see it. If you would like additional information concerning this action, state law requires that you submit a written request within ninety (90) business days of the date this notice was mailed to you. Please send your request to: -' - (Name and address of the person or department to contact for additional information) , ❑ Consumer Report: In compliance with the Fair Credit Reporting Act (Public Law 91.508), you are hereby informed that the action taken above is being taken wholly or partly because,.ef::irformation - contained in a consumer report from the following consumer reporting agency. (NAME) / (ADDRESS) A NOV 21 1991 ---- ---- CITY CLERK thodxed Representgtiv�. yA,+,.,,r NEWPPORT BEACH vv GU 86914 (Ed. 1.85) n,.� © 1985 '"^u'.smn•scM� ).F iwcnorn,e rnov Swett S Crawford Group .IWest Insurance Managers Swett Insurance Managers (SIM) IWest /Swett Insurance Managers P.O. Box 5557 Fresno, CA 93755 Telephone: (209) 227 -3535 Fax: (209) 227 -9449 NOTICE OF REINSTATEMENT POLICY NO. ISSUED THROUGH CANCELLATION DATE REINSTATEMENT DATE 91CLP0110940 IWEST INSURANCE MANAGERS NOVEMBER 24, 1991 NOVEMBER 24, 1991 NAMED INSURED JOHN GIRAUDY AND ADDRESS P 0 BOX 2968 NEWPORT BEACH CA 92663 a"41 a You are hereby notified that the above policy and subsequent restrictions and endorsements, if any, issued to you by the ..WESTERN. HERITAGE. INSURANCE. CO142ANY ........................ is hereby reinstated on the date noted above. In consideration of such reinstatement it is expressly stipulated that there shall be no coverage under this policy for all losses occurring between the cancellation date and the effective date of reinstatement. Fresno, CA Dated: ..NOVELIBE .13;:1991. ........ .. � .. .... t:.Y ::..w2v^ .._ ........ y ...VY�R ,CyC�%f .l• -- Authorized Repveseutative NAME AND ADDRESS OF ADDITIONAL INSURED CITY OF NEWPORT BEACH KEN DELANO, DEPUTY ASST MGR 3300 NEWPORT BEACH BLVD NEWPORT BEACH CA 92663 ■ , O�CJ® �J ISSUE DATE (MWDDNY) 2 -7 -91 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS -; Sed W1C)C James Of Washington, Inc. g g on, nc. O RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, 2101 Fourth Ave., Suite 1700 EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANIES AFFORDING COVERAGE Seattle, WA 98121 LAY A WESTERN WORLD INSURANCE COMPANY s LETTER - INSURED COMP C JOHN GIRAUDY P.O. BOX 2968 NEWPORT BEACH, CA 92663 COMPANY D COMPANY LETTER COVERAGES THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEOTO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONOI- TIONS OF SUCH POLICIES. CO TYPE OF INSURANCE POLICY NUMBER POUCY ERTCTNE POLICY DPRATLTN LIABILITY LIMITS IN THOUSANDS EACH OCCURRENCE AGGREGATE LTR DATE (MMMNY) DATE (MM,OD,NYI A GENERAL GLA309520 2 -2 -91 2 -2 -92 �' R, $ $ COMPREHENSIVE TOPM PREMISESMPERATIONS - - DAMAGEE — $ $ UNDERGROUND E7(PLDSIDN & CG.LAPSE HAZARD - - - PRDDUCISCOMPLETED OPERATIONS CONTRACTUAL - COMBINED $1,000 $1,000 e IMDEPENDENT CONTRACTORS - - BROAD FORM PROPERTY DAMAGE - - - PERSONAL INJURY . .. PERSONAL INJURY $ f AUTOMOBILE LIABILITY BMILY $ ANY AUTO - - PTWO ALL OWNED AUTOS (FRN. PATTS�I{�S.)N) - � - BDOLY ALL OWNED AUTOS- (PRNRPASS.) IMPAY PWBBlR $- HIRED AUTOS - NON-OWNED AUTOS - - DAMAGE $ GARAGE LIABILITY COMBINED CCOMB $ EXCESS LIABILITY UMBRELLA FORM � COMBINED $ $ OTHER THAN UMBRELLA FORM - WORKERS' COMPENSATION STATUTORY - $ (EACH ACGDENT) AND (WSEASEPOM LMm EMPLOYERS' LIABILITY - .. (DISEASE -EACH EMPLOYEE) OTHER 4. DESCRIPTION OF OPERATIONSILOCATKINSIVEHICLES /SPECIAL ITEMS Pier .trarfs tbti& via "Golf Cart" in Newport Beach, CA. Subject to exclusions and limitations. per ;,C0�any .form. $500.00 deductible applies. • • • CITY OF NEWPORT BEACH SHOULD AKY'OF tNEABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EX• PIRATI .DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO 3300 NEWPORT BLVD. �v MAIL DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE NEWPORT BEACH, CA 92663 LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS ENTS OR REPRESENTATIVES. AUTHO ENTA ATTN: DEPUTY ASSISTANT MANAGER -KEN D NO r i w EXHIBIT B Cleaning of Dirt/Sediment, Bacteria /Droppings, and Debris Restaurant staff will follow this maintenance procedure to clean the pier deck and railings that are within 80' of the end of the pier: Hand Sweeping. Staff will hand sweep the pier surface (within 80' of the pier, end only) once immediately before the restaurant opens Restaurant staff will use a dustpan to collect sweepings and deposit sweepings in a lined trash can (lined with a trash bag). If after sweeping up all trash and fishing debris, restaurant staff chooses to apply water to clean the pier surface, no water shall be allowed to flow over the edge of the pier (it must be vacuumed up with a wet-dry vac and placed in the sink or toilet inside the restaurant). • Trash Collection. On a routine but as needed basis (estimated to be from one to six times a day), restaurant staff shall walk around the 80' area collecting trash from the pier (cups, papers, etc.) and depositing the trash in the City's lined trash cans. • Emptying Full Trash Cans. The City's General Services Department will place and maintain an appropriate number of lined trash cans near the restaurant for use by persons visiting the pier or fishing. The City shall empty these daily. Restaurant staff, however, shall be responsible for tying off any full trash bags during the day and evening, placing a new liner in the can, and securing the full, tied, bag for pick -up the next morning by City crews. Maintenance of Fish Cleaning Debris and Fish Cleaning Stations The City will make its best efforts to direct all fish cleaning activities to two designated sinks along the sides of the pier. Each sink will have a sign prohibiting the use of soaps or cleaners. City staff will clean the screening device at the base of the sink as they pick up refuse. Protection of the Pier Wastewater System Restaurant staff shall adhere to these rules intended to protect the wastewater system on the pier: 1 -- No. paper materials except toilet paper shall enter the sewer lines. Restrooms shall be maintained in clean and sanitary condition and fully supplied with toilet paper. Trash cans shall be supplied and emptied frequently. 2— The restrooms' shall be re- equipped with hand -dryers or a single rolled cloth towel device (which does not dispense separate towels) instead of paper towels. Any paper towel dispensers or paper towels shall be removed by May 1, 2002. 3 -- Dishwashing staff, food preparation staff, and cleaning staff shall be familiarized with and follow these grease control rules: • Scrape all food and grease product off of plates, pans, cups, and cooking utensils into a lined trash can • Never dispose of oils, fats, or grease in the sink, dishwasher, or sewer connection. 4 -- The restaurant manager shall, not less than once every six months, hire a plumber to ensure that all wastewater lines between the restaurant and the grease interceptor are free from blockages. 5 -- The restaurant shall hire and maintain a contract with, at all times, a cleaning service that maintains the Grease Interceptor. The contractor shall fill out a maintenance log, which shall be posted in the restaurant manager's office, for the Interceptor. Interceptor cleaning firms include, but are not limited to: Triple A Services- (949) 855 -7836 . Baker Commodities- (800) 427 -0696 J.C. Grease Buyers- (909) 736 -1198 SMC Pumpers- (909) 278 -9190 • • CITY COUNCIL AGENDA ITEM NO. 13 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER MAY 23, 1994 TO: MAYOR AND CITY COUNCIL FROM: ASSISTANT CITY MANAGER SUBJECT: NEWPORT PIER CONCESSION ACTION: If desired, approve MOU assigning the rights, interests, obligations and responsibilities of the Concession Agreement to C. S. Park. BACKGROUND: In the late 1980's, the City granted a concession to HEG Enterprises which rebuilt the Newport Pier restaurant and opened it for business in 1989. Since its opening, the restaurant has failed to live up to its revenue projections and has been a financial drain on the operator. At approximately $65,000 per year, the rent to the City is about half of what was expected, and this is believed to result from the restaurant "missing the market ". That is, it is too upscale for the area. In contrast, Ruby's on the Balboa Pier pays more rent to the City yet is less than one third the size. The Newport Pier concessionaire has recognized this but has been reluctant to put additional funds into the restaurant because his current debt load is too high. Construction costs far exceeded estimates, and debt service precludes his ever making a profit. Accordingly, he has attempted to market the restaurant for quite sometime and has considered closing the restaurant during the winter to minimize his losses. A proposed buyer is willing to pay about 45% of the original construction cost which will reduce the debt service to a point where the facility can be profitable. The proposed buyer is C. S. Park, a businessman with large interests in self- storage and • clothing manufacturing and who successfully operates the Fish Net Restaurant in San Pedro under a sub -lease from the Port of Los Angeles. The proposed transaction while simple from the City's standpoint, is somewhat complicated between the other principals. Because HEG is extending some financing, they will remain as the concessionaire in case of a default by Park. Thus, the City is being asked to approve a sub - concession agreement that not only secures HEG's loan but also provides the City with a backup should Park not perform. 3 Page 2 ANALYSIS: Background checks on Mr. Park are favorable. His restaurant in San Pedro is a bit down scale but is reasonably priced, family oriented and very clean. Food is fresh and well prepared. The landlord reports good percentage rent and no delinquencies. Mr. Park has hired managers with good restaurant experience that have been training at HEG's other Fisherman's in San Clemente. Many of the current staff will be retained. Financial statements from his bank and accountant indicate high annual income, and he is investing $280,000 of his own money. A police background check did not disclose any problems or issues. He currently lives in La Canada - Flintridge, but plans, he says, to move to Newport Beach where he wants to retire. . A • A local experienced restaurant broker was retained by staff to analyze the escrow instructions and loan documents. Debt service, rent, fees, taxes, insurance and typical • cost for food and labor and liquor were included in the analysis which revealed that the current gross sales volume will allow the new business to return a reasonable profit. In personal conversation, Mr. Park appears knowledgeable and enthusiastic. He has completed an exhaustive and impressive study over the past six months, spending many hours on the pier, in the restaurant and in the area. He has visited dozens of restaurants in Newport Beach, analyzed their menus and reviewed their operations (particularly Ruby's). He has visited, photographed and analyzed every pier from Santa Barbara to San Diego. He understands customers and marketing and has a good grasp of both the problems and potentials of the pier restaurant. He plans to continue sit -down dining upstairs with counter take -out downstairs. DISCUSSION: Staff has long believed that the Newport Pier restaurant needs a more casual atmosphere and lower prices as well as hands on, day -to- day care. The proposed operator recognizes this and is willing to invest the necessary time and money. The current operator cannot be expected to continue operating at a loss; and, until • now his marketing efforts have been unsuccessful. Mr. Park appears to have not only the financial wherewithal to complete the transaction, but also the enthusiasm, entrepreneurship and personal pride to take on this project. 0 4 . Page 3 RECOMMENDATION: This transaction is beneficial for HEG and the City. Restaurant buyers are scarce and this transaction is an opportunity to inject some new life into this facility, increase its service to the public, and increase the City's revenue. Staff recommends approval of the attached MOU. KennAJDe o KJ D:mb • 0 CONSENT TO This agreement dated th identification, between the Enterprises, Inc., ( "HEG") ( "Newport Fish ") and Choon S4 to the following: L] e ISr of 1994 for purposes of City of Newport Beach ( "City "), HEG and Newport Beach Fish Company Inc., )o Park ( "Park ") is made with reference A. On or about November 14, 1985 the City and HEG entered into a Concession Agreement pursuant to which HEG was authorized to operate a restaurant at the end of the Newport Beach Pier (Concession Agreement). The Concession Agreement was effective on June 15, 1987 and was amended on May 10, 1990, July 30, 1990, January 30, 1991 and January 13, 1992. B. Pursuant to the Concession Agreement HEG has granted the right to operate a restaurant on the premise for an initial term of fifteen (15) years commencing June 15, 1987, with options to extend the term of the Concession Agreement for two (2) additional five (5) year periods. C. HEG, Newport Fish and Park have represented to the City that: (1) On or about January 1, 1993, HEG and Newport Fish (a wholly owned subsidiary of HEG) entered into a written agreement pursuant to which Newport Fish assumed the rights, interests, duties and liabilities of HEG pursuant to the Concession Agreement ( Subconcession Agreement). (2) HEG has agreed to sell Newport Fish to Choon Soo Park ( "Park "). Upon consummation of the sale, Park will be the owner of Newport Fish, Park would be entitled to operate the restaurant pursuant to the Subconcession Agreement, and HEG would remain the Concessionaire. (3) That these transactions fully comply with all applicable Federal, State and local laws. D. City has determined that Park is capable, financially and otherwise, of operating a restaurant on the Newport Pier pursuant to the Subconcession Agreement and that Parks operation of the restaurant will not result in reduced revenue to the City pursuant to the Concession Agreement. E. The parties intend to authorize Newport Fish to satisfy the obligations of the Concession Agreement through direct payment and performance of obligations pursuant to, authorize direct communication between the City and Newport Fish regarding matters relevant to, the Concession Agreement. L NOW, THEREFORE, the parties agree as follows: 1. City accepts Newport Fish and Park as the Subconcessionaire of the premises and the City will accept performance by Newport Fish of the terms and conditions of the Concession Agreement as performance by HEG. 2. To facilitate performance of the Concession Agreement by Newport Fish, representatives, employees or officers of the City and Newport Fish shall have the right to communicate and deal directly with one another without the involvement of HEG, provided, however, nothing in this Agreement shall affect the rights of HEG to notice and the right to cure any breach of the Concession Agreement. 3. Nothing in the Agreement shall reduce, diminish or affect the obligations and duties of HEG pursuant to the Concession Agreement. 4. This Agreement does not constitute, and shall not be construed as, any approval or disapproval of the terms or conditions of the Subconcession Agreement, the Agreement to sell Newport Fish to Park or any other transaction involving HEG, Newport Fish and /or Park. IT WITNESS WHEREOF, the parties have caused this consent to be executed the day and year first above written. eg \cowess.h" CITY OF NEWPORT BEACH, a municipal corporation By 17 C ty Ma a er HEG ENTERPRISES, INC., a California corporation By Hal Griffith Its NEWPORT BEACH FISH CO., INC., a California corporation By Choon Soo Park Its JUN -17 -1994 14:4? P•02 • 7'N ORB, the parties agree asallowa: 14 guy a©cepts Newport Dish and Park ar the 8ubconcessionairs of the promises end the City Will" performance bY.- Mewport Fish of the terms and conditions of the Condeeeion Agreement as perfortaanoe by MM. 8. To facilitate performance at the Concession Agreement by Newport risk, representatives, soployees or officers of the city and Newport Fish shall have the right to co�unioats and deal M raatly vith one another Without the involvement of MSG# provided, however, nothing in this Agreement shall srsect the rights of ss0 to notice and the right to cure any breach of the Conoaosion Agreement. ?. Nothing in the Agreement shall reduce, diminish or offset the obligations and duties of Bed pursuant to the comngsion Agrospent. 4. This Agreement does not vonstituta, and shall not be construed as, any approval or disapproval of the Clans or conditloru of the subconcessicn Agraement, the Agxeetgent to sell Newport Fish to Park or any other transaotion involving M, Newport Fish and/or Park. IT MITN339 VHBXMOF, the parties have vaused this consent to be exeauttd the day and year first above wnritten% A'i MBTI As To FORMS q \aeneN�.RN JUN -10 -1994 9953 CITY OF N=11OO" B$A"o a municipal corporation By p . y a or HRG gN IMPRISMSr INC. a california jdorporaticn By "WPORT B Fze" Co. , INC. , a California corporation By oen goo ` its g dent 98"i P _ 03 Tl1Tl11 D fA^l CITY OF NEWPORT BEACH Office of City Manager (714) 644 -3002 May 23, 1994 To Whom It May Concern: The City of Newport Beach is in support of Mr. Choon S. Park subleasing the restaurant currently known as the Fisherman's Restaurant and Bar located at the end of the Newport Beach Pier. The City of Newport Beach, nor any of its departments, oppose Mr. Choon S. Park in his application for liquor license from the State of California A.B.C. Sincerely, A a-�L Kenneth J. De o KJD:mb Assistant City Manager City Hall • 3300 Newport Boulevard • P.O. Box 1768 • Newport Beach, California 92659 -1768 • C is TO: FROM: 6 L City Council Agenda Item No F -Va) CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER FEBRUARY 249 1992 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER SUBJECT: NEWPORT PIER CONCESSION C — 1I01 BY THE CITY cwi...— CITY OF NEWPORT BEACH FEB ? 4 IQcl" ACTION: If desired, appwvz -. rental credit for Newport Pier Concessionaire for construction costs in the amount of $51,750 to be administered by the City Manager subject to execution of a General Release approved by the City Attorney. BACKGROUND: Under the terms of the Concession Agreement for the Newport pier restaurant, the Concessionaire was completely responsible for its construction, all utility lines and any pier improvements necessary to support the restaurant structure. The City is responsible for the maintenance and upkeep of the pier and its underpinnings. In some instances this delineation of responsibility was unclear, and this item seeks to reimburse the Concessionaire for his contributions to what otherwise would have been City costs. ANALYSIS: The recommended reimbursement consists of two items, $36,000 for pier pilings and $15,750 for fire hydrants. Regarding the pilings, during the design phase a problem arose relating to providing access below the restaurant for structural maintenance which is the responsibility of the City. To solve the problem, the Concessionaire agreed to an expenditure of $68,000 for new pilings and cross bracing which in effect would eliminate a $36,000 expenditure by the City to maintain pilings. Rather than halt construction to accommodate the City's budget schedule, the Concessionaire agreed to proceed with only a commitment from staff to support a recommendation to the City Council for a rental credit at a future date. (34F) Page 2 Staff emphasized in a letter to the Concessionaire that the Council was not bound by staffs recommendation. In . regard to the fire hydrants, the Concessionaire contended first in January 1990, again in February 1991, and yet again in December 1991 in letters to staff that extraordinary construction requirements imposed by the City unreasonably added to his construction costs. His second letter included, at the request of staff, a precise accounting and his rationale for seeking reimbursement for these additional costs. A total of $132,368.50 (in addition to the $36,000 for pilings) was requested by the Concessionaire for additional costs associated with engineering studies, electrical facilities, waterlines and sewage disposal. Each of the items was investigated by staff to determine if these additional facilities solely benefited the City and were not necessary for the operation of the restaurant. Of all the items listed by the Concessionaire, only the fire hydrants required by the Utility Department and installed . on the new waterline along the length of the pier solely benefit the City. In this case, the hydrants assist the City in its responsibilities to clean the pier and fight . fires. The Utility Department estimates the cost of the hydrants including installation at $1750 each. The cost of the nine hydrants amounts to $15,750. In staff's opinion this is a reasonable request and approval of this reimbursement is recommended. The Concessionaire has received a letter from staff detailing the reasons why his other requests were not recommended. Also, the long delay on this item is solely attributable to the Concessionaire's requests to provide more evidence to counter the staff recommendation. The Concessionaire has indicated verbally his acquiescence to this action. RECONMENDATION: If approved by the City Council, the rental credit will be administered by staff and be distributed over several months. Currently the Concessionaire pays between $4000 and $6000 per month and increases are expected. Also, because of the Concessionaire's repeated contentions regarding his construction costs, a General Release from any further claim is advisable prior to providing any credits. bid KJD:mb Kenneth Delino 4"A CITY OF NEWPORT BEACH Office of City Manager (714) 644 -3002 March 9, 1992 Mr. Hal E. Griffith HEG Enterprises 1301 Alaskan Way Seattle, WA 89101 Subject: Rental Credit Dear Mr. Griffith: The City Council at their meeting of February 25, 1992 approved a rental credit in the amount of $51,750 with the stipulation that you execute a general release from any further claim regarding construction costs approved by the City Attorney. Accordingly, please indicate on your monthly statements a credit for the amount of $51,750 and subtract the payments due each month from the credit until it is extinguished. Please indicate on each statement the remaining balance of the credit. Also, please execute the release appearing below and return to me. The rental credit is contingent on execution of the release. Call me if you have any questions. Sif 9erely /�K.R�✓vwy� Kenneth J. elino KJD:mb Deputy City Manager GENERAL RELEASE Concessionaire's signature below constitutes a full and final settlement of any and all claims against the City of Newport Beach and any employee arising from the construction or costs thereof for the restaurant on the Newport Pier. APPEICIVED AS TO FORM HEG EN ERPRISES City Attorne H I E. Griffith Date: Z' Date: 3" y 2— Q Z City Hall • 3300 Newport Boulevard • P.O. Box 1768 • Newport Beach, California 92659 -1768 • TO: FROM: SUBJECT: • ACTION: • 0 CITY COUNCIL AGENDA ITEM NO F -3(c) CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER JANUARY 13, 1992 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER NEWPORT PIER TRAM C — I%l (9s) If desired, approve Amendment to Concession Agreement. BACKGROUND: The City Council previously approved operation of a small tram to carry passengers on the Newport Pier. After one year of operation, the tram has been a success and no problems have been cited. However, the requirement that the tram be licensed by the California Department of Motor Vehicles has placed an unreasonable burden on the insurance requirements and the operator has requested that this requirement be lifted. RECOMMENDATION: Approval of the attached amendment will remove the necessity for DMV licensing but will still require period inspections by the Police Department. KJD:mb Attachment ! enn eth J. o r . - rt AMENDMENT TO CONCESSION AGREEMENT FOR NEWPORT PIER This Amendment to Concession Agreement, made and entered into this 13th day of January , 1992, by and between the CITY OF NEWPORT BEACH, a municipal corporation hereinafter referred to as "CITY ", and HEG ENTERPRISES, hereinafter referred to as "CONCESSIONAIRE ". . WITNESSETH: WHEREAS, the City is the owner, and is in possession and control of the Newport Pier, located in the City of Newport Beach, which extends into and over the water of the Pacific Ocean, at the extension of Mc Fadden Place (hereinafter "Pier "). The Pier is used by the general public for the purpose of fishing and sightseeing and houses a restaurant currently operated by Concessionaire; and WHEREAS, Concessionaire has successfully operated a small tram to carry patrons from the base of the Pier to the restaurant; and WHEREAS, Concessionaire has requested an amendment to the requirements for this tram. NOW, THEREFORE, the Parties agree as follows: Section 6 "Use of Premises ", paragraph I, Operation of Tram, sub- paragraph (5) is amended to read as follows: "The tram vehicle shall be inspected initially and every three (3) months thereafter by the City's Police Department. Any equipment or other violation noted by the Police Department shall be cause for immediate cessation of the operation of the tram until such violation has been corrected to the satisfaction of the Police Department. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. 401 1 AS TO FORM: ATTORNEY CITY OF NEWPORT BEACH A Municipal Corporation By: Phil Sansone, Mayor BEG ENTERPRISES By: dIE. Griffith. ConcesWiffire C \ TO: FROM: SUBJECT: • ACTION: • CITY COUNCIL AGENDA ITEM NO F -3(b) CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER JANUARY 28, 1991 MAYOR AND CITY COUNCIL DEPUTY CITY MANAGER E JAN 2 R 1991 APPROVED NEWPORT PIER PASSENGER TRAM C— /9G/ If desired, approve amendment to Concession Agreement for Newport Pier to permit the operation of a small passenger tram. BACKGROUND: The Concessionaire who operates the Fisherman's Restaurant on the Newport Pier has requested approval to operate a small tram to carry passengers from the base of the pier to the restaurant. The intent is to increase patronage of the restaurant by those persons unable or unwilling to walk the 1000 foot length of the pier. The proposed tram will include a wheelchair rack. A small fee would be charged for this service. ANALYSIS: A photo of the proposed vehicle is attached. It is 118" long, 45" wide and weighs 1280 lbs. It is gasoline powered with a top speed of 10 miles per hour and is a fully licensed vehicle requiring a licensed driver. The proposed Amendment to the Concession Agreement would limit speed on the pier to 5 miles per hour, would require a fully licensed driver, would require periodic safety checks by the Police Department and would limit the size of the vehicle to that proposed. The tram would be subject to all of the requirements and restrictions contained in the full Concession Agreement including those related to insurance and liability. Page 2 ® The Police Department and the Public Works Department have reviewed this proposal and have no concerns or objections. The City of Seal Beach has operated a much larger tram on its pier for many years. It is operated by City personnel and there have been a few minor liability claims. The smaller tram proposed here together with the liability waivers associated with private operation should eliminate any such problems on the Newport Pier. Approval of this amendment is recommended to enhance the visitor serving capability of the pier and to promote increased patronage to the restaurant which will increase revenues to the City. tfJ�,x'i'Lt9 KennetAJelino ® KJD:mb E U 14 • C -/96)/ AMENDMENT TO CONCESSION AGREEMENT FOR NEWPORT PIER This Amendment to Concession Agreement, made and entered into this _ day of 1991, by and between the CITY OF NEWPORT WEACH, a municipal corporation hereinafter referred to as "CITY ", and HEG ENTERPRISES, hereinafter referred to as "CONCESSIONAIRE." WITNESSETH: WHEREAS, the CITY is the owner, and is in possession and control of the Newport Pier, located in the City of Newport Beach, which extends into and over the water of the Pacific Ocean, at the extension of Mc Fadden Place (hereinafter "Pier "). The Pier is used by the general public for the purpose of fishing and sightseeing and houses a restaurant currently operated by Concessionaire; and WHEREAS, Concessionaire has requested to operate a small tram to carry patrons from the base of the Pier to the restaurant; and WHEREAS, the City Council finds that a tram will extend opportunities for sightseeing and enjoying of the Pier to handicapped and infirm persons. NOW, THEREFORE, the Parties agree as follows: Section 6 "Use of Premises" of the Concession Agreement is amended to add the following paragraph: 1 I. Operation of Tram (1) Concessionaire shall have the right to operate one (1) tram on the Pier and on City land at the base of the Pier for the purpose of transporting passengers and restaurant supplies to and from the base of the Pier and the restaurant. (2) Concessionaire may charge a fee to passengers. Such fees shall be included in the Gross Sales as defined by Section 7.13 (1) of this agreement. (3) The tram vehicle shall not exceed one thousand five hundred (1,500) pounds in weight, one hundred twenty (120) inches in length, and forty -eight (48) inches in width. (4) The tram vehicle may display advertising for the restaurant that shall not exceed twelve (12) square feet in area. (5) The tram vehicle shall be registered with the California Division of Motor Vehicles and shall be inspected initially and every three (3) months thereafter by the City's Police Department. Any equipment or other violation noted by the Police Department shall be cause for immediate cessation of the operation of the tram until such violation has been corrected to the satisfaction of the Police Department. (6) The speed of the tram vehicle when operating on the Pier or other City property not a public roadway shall not exceed five (5) miles per hour. (7) All provisions of this agreement, including particularly the insurance provisions contained in Section 12 and the hold harmless provisions contained in Section 16, shall extend in their entirety to the operation of the tram vehicle and to the employment of the operator(s). (8) The City Council shall have the unilateral right to rescind this paragraph and cause the operation of the tram to cease whenever in its opinion such operation is unsafe or detrimental to the enjoyment of the Pier by the general public. 2 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. CITY OF NEWPORT BEACH A Municipal Corporation By: Phil Sansone, Mayor ATTEST: 3 • • COUNCIL AGENDA, ITEM NO. LL-3 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER JUNE 25, 1990 TO: MAYOR AND CITY COUNCIL FROM: EXECUTIVE ASSISTANT SUBJECT: AMENDMENT TO CONCESSION AGREEMENT FOR NEWPORT PIER ACTION: If desired, approve amendment deleting ambiguous language regarding ownership of improvements. BACKGROUND: This is a housekeeping item to remove language in the Concession Agreement which makes it unclear as to who actually owns the improvements on the Pier. Throughout the Concession Agreement it is clear that the City owns the building and that the Concessionaire is allowed to make improvements. However, in the section dealing with fixtures and equipment (i.e. items that are attached to the building) there is a statement which reads as follows: "The improvements made to the structure on the Premises by Concessionaires shall immediately become property of the City upon termination or expiration of this Agreement." rat (3s) r Page 2 While this statement refers to the equipment and furnishings, the Alcoholic and Beverage Control in its review of the full liquor license approved by the City Council believes this creates some ambiguity regarding ownership of the building. Removal of this passage will solve the problem. The attached Amendment includes a revised section excluding the above language. KJD:mb Attachment AMENDMENT TO CONCESSION AGREEMENT FOR NEWPORT PIER This Amendment to Concession Agreement, made and entered into this C day of 1990, by and between the CITY OF NEWPORT BEAC10a municipal corporation hereinafter referred to as "CITY ", and HEG ENTERPRISES, hereinafter referred to as "CONCESSIONAIRE." WITNESSETH: WHEREAS, the CITY and CONCESSIONAIRE entered into a Concession Agreement dated November 19, 1985, whereby CONCESSIONAIRE was given certain rights to operate a restaurant at the end of the Newport Pier; and WHEREAS, the restaurant structure at the Pier is the property of the City of Newport Beach; and WHEREAS, an ambiguity has been discovered in the language of the Concession Agreement regarding such ownership; and WHEREAS, CONCESSIONAIRE and CITY desire to remove this ambiguity. NOW, THEREFORE, the Parties agree as follows: Section 10 "EQUIPMENT AND FURNISHINGS" of the Concession Agreement is amended to read as follows: 1 All trade fixtures, equipment and signs installed by Concessionaires shall be and remain the property of Concessionaire and shall be removeable at any time during the term of this Agreement or immediately upon the termination or expiration of this Agreement so long as Concessionaires shall not be in default under the terms hereof. The removal of any such fixtures, equipment and signs shall be at Concessionaires' sole expense and Concessionaires shall repair any damage or injury to the Premises to any building or structure located thereon occasioned by the installation or removal thereof. In the event Concessionaires fail to remove any fixture or equipment within sixty (60) days from the date on which this Agreement terminates or expires, such fixtures or equipment shall be deemed abandoned, shall become the property of the City and the City shall have the full power and authority to control, use or dispose of same. In the event Concessionaires fail, all equipment and materials remaining shall be deemed abandoned and shall become the property of City, with full power and authority to control, use or dispose of same. The removal of any such fixtures, equipment and signs shall be at Concessionaires' sole expense and Concessionaires shall repair any damage or injury to the Premises or any building or structure occasioned by the installation or removal thereof. Upon expiration of this Agreement or any extension thereof, or upon earlier termination, Concessionaires shall surrender the Premises in good condition and repair, reasonable wear and use excepted. 2 0 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. ATTEST: AS TO FORM: ATTORNEY CITY OF NEWPORT BEACH A Municipal Corporation By' kj!3rn!= Nk&6444W� Ruthelyn Olummer, Mayor BEG ENTERPRISES mi ii! 3 TO: FROM: • CITY COUNCIL AGENDA ITEM NO. F — 9 (R.) CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER JUNE 25, 1990 MAYOR AND CITY COUNCIL EXECUTIVE ASSISTANT BY THE CITY COUNCIL CITY OF NEWPORT BEACH JUN 2 5 M SUBJECT: SIGNAGE FOR THE FISHERMAN'S RESTAURANT NEWPORT PIER ACTION: If desired, approve sign. BACKGROUND: The concessionaire on the Newport Pier has applied to the Planning Department for a sign permit as indicated by the attached memo from the Planning Department. Normally such a permit does not require Council approval but this is a City -owned structure and in the past the City Council has approved its design. As indicated on the attached illustration, the signage consists of the words "The Fisherman's" in 18" high red neon, the words "Restaurant and Bar" in 12" high blue neon, a logo of approximately 34 square feet in red and blue neon, and two white neon strips on the front and both sides of the building. As indicated in the attached memo from the Planning Department, such signage complies with the Sign Code and the Cannery Village /McFadden Square Specific Area Plan. KJD:mb Attachments kennetelino oev v 0 - MEMO - PLANNING DEPARTMENT CTTY OF NEWPORT BEACH 9 DATE: June 4, 1990 TO: Ken Delino, Executive Assistant FROM: William R. Laycock, Current Planning Manager SUBJECT: Signage for The Fisherman's Restaurant One Newport Pier The applicant, Robert Novello, has submitted the attached plans for signs on the subject restaurant facility. The proposed signage consists of two signs to be located on the front (pier) side of the building. A 24t sq.ft. wall sign and a 93± sq.ft. wall sign (to be installed on a proposed parapet wall) are proposed, for a total area of 117t sq.ft. If the building were located in a commercial district in the Cannery Village /McFadden Square Specific Area Plan, Section 20.63.045, I of the Municipal Code would permit a maximum of three wall signs on the building. The area of a wall sign or wall signs on any frontage of a building could not exceed an area of 200 sq.ft. The proposed signs, therefore, meet the requirements of the Sign Code for buildings on commercial property. Although the Sign Code makes no reference to neon strips of light, the Council should be made aware of the proposed development. The plans indicate that a 12 inch wide neon strip of illumination is proposed along the front (pier) side of the building as an extension of one of the wall signs. In addition, said neon strips will also be located along 26 feet 7 inches of the northerly side of the building and 35 feet 5± inches along the southerly side of the structure. VA�l Gr William R. Laycock WRL:ll Attachments: Plot Plan, Elevation 3 FF �� .� � - -- . � . � � f)) \� \2 � % § #f ■I�2 TO: i • CITY COUNCIL AGENDA ITEM NO. -EZ3L -}— J'-L CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER APR 9 W I 1 MARCH 269 1990 oQGa7�c�u- m2.�Gi CITY C NCIL 03) FROM: EXECUTIVE ASSISTANT SUBJECT: NEWPORT PIER - FISHERMAN'S RESTAURANT ACTION: If desired, approve and authorize Mayor and City Clerk to execute an amendment to the Concession Agreement to allow: (a) Assignment from HEG Enterprises and the Mertigs to HEG Enterprises only. (b) A full liquor license (with conditions). BACKGROUND: In November 1985, the City Council approved a new Concession Agreement between the existing concessionaires, Wolfgang and Erika Mertig, and HEG Enterprises. The Concession Agreement became effective on June 15, 1987 after all con- struction permits had been obtained. The Fisherman's Restaurant opened in August 1989 and is now fully functioning. The volume of business has not yet fulfilled expectations but is expected to increase during the spring and summer season. The concessionaire has requested modifications to the Agreement regarding assignment and a full liquor license. DISCUSSION: Regarding the assignment of interest, the previous concessionaires, Wolfgang and Erika Mertig, initially joined with HEG Enterprises to extend their existing agreement. The Mertigs have now assigned their interest to HEG and the City's approval for such an assignment is required under the current Concession Agreement. The Mertigs are no longer involved in the operation and the recommended approval will formalize the existing arrangement. Page 2 Regarding the liquor license, the concessionaire argues that the restaurant is an "upscale dinner house" where some patrons desire cocktails and after - dinner drinks. He maintains that he needs a full license to compete successfully against other establishments which do. In the past, the City Council had concerns regarding alcohol sales on the pier and disorderly conduct. Staff is persuaded by the concessionaire's arguments regarding competitiveness, and the current beer and wine sales provide ample opportunity but no evidence of drunk and disorderly behavior. On the contrary, since the opening of the restaurant the pier is. much cleaner and more orderly to the delight of the many fisher- man there. The Police Department has not objected to the full license. Staff recommends approval subject to revocation if alcohol related incidents occur as stated in the attached amendment. KJD:mb Attachment PU Kenneth Delino MART 29`9© THU 1 7 22 GW P -HEG 'P. 02.02 p COUNCIL AGENDA NO. -:)--- z ti. E.G. Enterprises, Inc. 9 ° San Clemente Municipal Pier, 611 Avenida Victoria, San Clemente CA 92672 (714) 498.6390 General Oflice / Miners' Landing, 130.1 Alaskan Way, Seattie, Washington 98101 206/623.8600 March 29, 2990 CITY OF NEWPORT BE Ruthelyn Plummer Mayor of Newport Beach APR 910 3300 Newport Blvd Newport Beach, California 92658 Dear Mayor: As you know, the Fisherman's Restaurant's request forea full service liquor license was scheduled for your last Council sleeting. It was my intention to be there to answer any questions or to'respond to any concerns that members of the Council may have. unfortunately, I was told that the Council meeting would start at 7:30 PH and because this was early on the agenda I should be there no later than 7:30 PH. I did arrive at 7:25 and was suprised to find the Council convened. After sitting in Council Chambers for 40 minutes, not knowing that my item had already been discussed and rejected, I was shocked to find the Council meeting had started at 7:00 PH The issue of the Fisherman's Restaurant's need for a full service liquor license obviously needed my support and explanation. Therefore, I would, like. to request :reconsiderati-on°?` wd°!r*"b' rescheduled at your next 'Council, 'meeting; whlch..I,:- believe_.to -=bee April the 9th, which I would plan to attend and be available to respond to any questions and concerns. Your positive consideration to this _ reques>s would be -dge }Y apprecia.ted:'r ;:•:: Sincer' :A -t . ... H 1 E. Griffith HEG /lh' 77777.,6 4. I • i c -��o� P TO CONCESSION 2 FOR NEWPORT PIER This Amendment to Concession Agreement, made and entered into this /D�day of 1990, by and between the CITY OF NEWPORT BEACH, a unicipal corporation hereinafter referred to as "CITY ", and HEG ENTERPRISES, hereinafter referred to as "CONCESSIONAIRE." WITNESSETH: WHEREAS, the CITY and CONCESSIONAIRE entered into a Concession Agreement dated November 19, 1985, whereby CONCESSIONAIRE was given certain rights to operate a restaurant at the end of the Newport Pier; and WHEREAS, the effective date of the Concession Agreement is June 15, 1987; and WHEREAS, CONCESSIONAIRE has asked City to approve an assignment of the Concession Agreement from Wolfgang and Erika Mertig and HEG Enterprises to HEG Enterprises as sole proprietor; and WHEREAS, CONCESSIONAIRE has asked the City to amend the Concession Agreement to allow CONCESSIONAIRE to apply for a full liquor license. NOW, THEREFORE, the Parties agree as follows: 1. CITY hereby approves an assignment of the Concession Agreement from Wolfgang and Erika Mertig and HEG Enterprises to HEG Enterprises as the sole concessionaire. A copy of the assignment is attached to this amendment as Exhibit A. 1 • 0 The Concession Agreement is amended to insert the term "Concessionaire" wherever the term "Concessionaires" appear. Paragraph 6(G) of the Concession Agreement is amended to read as follows: G. Alcoholic Beverages i. Concessionaires shall have the right to seek a license from the Alcoholic Beverage Control Board granting the right to sell all types of alcoholic beverages on Premises. In the event that Concessionaires obtain such a license, Concessionaires shall be entitled to sell alcoholic beverages only within the confines of the restaurant. Concessionaires shall comply with all of the rules and regulations of the Alcoholic Beverage Control Board and comply with all of the terms and conditions of any license granted by that Board. Concessionaires shall take all steps necessary to ensure that no alcoholic beverages leave the Premises or are dispensed through any take -out window. Concessionaires shall strictly supervise all sale of alcoholic beverages to ensure that there is no excessive consumption of alcohol on Premises. ii. In the event City becomes aware, or receives information, that Concessionaire has materially breached the duties specified in sub - paragraph (i) (such as a repeated failure to take reasonable steps to ensure alcoholic beverages do not leave the premises or prevent excessive consumption of alcohol on the premises) , the City shall give Concessionaire written notice of its intention to prohibit the sale of alcoholic beverages. Within ten days after written notice of the intention to prohibit the sale of alcoholic beverages, Concessionaire shall discontinue the sale or request a hearing. In the event Concessionaire requests a hearing, the City Council shall appoint a hearing officer to take evidence and submit proposed findings and recommendations. The City shall have the burden of proving a material breach. The hearing shall be conducted within thirty days after Concessionaire's request for a hearing, the hearing officer shall submit proposed findings and recommendations within twenty days after the hearing, and the Council shall render its decision within twenty days after the hearing officer has filed proposed findings and recommendations. iii. Concessionaire expressly acknowledges the right of the City to prohibit the sale of alcoholic beverages from the premises upon finding a material breach as specified in sub- paragraphs (i) and (ii). In consideration of City's agreement to permit the sale of alcoholic beverages, Concessionaire waives and gives up any right to contend the right to sell alcoholic beverages is under the exclusive jurisdiction and control of the Alcoholic Beverage Control Board, or other state agency, and Concessionaire shall not make such claim or contention in any administrative or legal proceeding arising out of, or in any way related, to the sale of alcohol or the provisions of this Agreement. Concessionaire expressly agree to refrain from selling alcoholic beverages in the event the decision of the City becomes final pursuant to lapse of time or the conclusion of litigation and Concessionaire agrees to take any action consistent with such a decision, including, without limitation, the surrender of licenses or permits issued by the Alcoholic Beverage Control Board. • • IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation By: &Lv� Ruthelyr4Plummer, Mayor HEG ENTERPRI ES � By: Hal E. Griffith oncessionaire 3 ASSIGNMENT OF CONCESSION AGREEMENT THIS ASSIGNMENT by and between WOLFGANG and ERIKA MERTING, Assignor, and HEG ENTERPRISES, INC., Assignee, provides as follows: Recitals Wolfgang and Erika Merting desire to assign to HEG Enterprises, Inc., all of their right, title and interest in and to that November 19, 1985, Concession Agreement between the City of Newport:Beach ( "City ") and Wolfgang and Erika Merting and HEG Enterprises, Inc. ( "Concessionaires "). HEG Enterprises, Inc., desires to receive said assignment. NOW, THEREFORE, for and in consideration of the mutual covenants and promises stated herein, the parties agree as follows: 1. All right, title and interest of Wolfgang and Erika: Merting in the above - described Concession Agreement is hereby assigned to HEG Enterprises, Inc., and HEG Enterprises, Inc., hereby accepts said assignment and agrees to fulfill and be bound by all the terms and conditions of the above- described Concession Agreement. 2. Except as provided in ADDENDUM TO BUSINESS OPPORTUNITY- Earnest Money Receipt and Agreement, as signed between the parties in 1986. PARTIES agree to abide to terms and conditions contained therein. IN WITNESS WHEREOF, the parties have executed this Assignment on this 23rd day of July, 1987. ASSIGNOR: Wolfgai4g rferting Erika Merting ) ASSIGNEE: HEG ENTERPRISES, INC. By Hal'E. Griffith, sident u CITY OF NEWPORT BEACH FO Office of City Manager (714) 644 -3002 June 28, 1990 Mr. Hal E. Griffith Hal Griffith & Associates 1301 Alaskan Way Seattle, WA 89101 Subject: Assignment Dear Hal: Please transmit to this office a copy of the assignment from HEG Enterprises and Wolfgang and Erika Mertig to HEG Enterprises for our records. KJD:mb Sincerely, Kenneth 4JD e 'n o City Hall • 3300 Newport Boulevard • P.O. Box 1768 • Newport Beach, California 92658 -8915 aEW ART CITY OF NEWPORT BEACH z �9c FoaN�r Office of City Manager (714) 644 -3000 June 12, 1987 Hal E. Griffith HEG Enterprises Miners Landing 1301 Alaskan Way Seattle, WA 98101 Wolfgang and Erika Merting 2900 East So. Greenville Santa Ana, CA 92704 Dear Sirs: SUBJECT: Newport Pier Concession Agreement Certification of Effective Date In accordance with Section 3.A of the Concession Agreement dated November 19, 1985 between the City of Newport Beach and yourselves, I have received and reviewed the following: 1. A valid Building Permit issued by the City's Building Department for the required improvements described in Section 4.A of the Concession Agreement. (Copy attached.) 2. A letter from the Public Works Department of the City approving the plans, specifications, and conditions contained in the Building Permit. (Copy attached.) 3. A Coastal Development Permit issued by the California Coastal Commission for the required improvements. (Copy attached.) City Hall • 3300 Newport Boulevard, Newport Beach, California 92663 0 0 -2- 4. A letter from the Health Care Agency of the County of Orange approving plans for the food establishment. (Copy attached.) 5. A letter of unconditional commitment from a local institutional lender to fund $350,000 of estimated costs of construction for the required improvements. (Copy attached.) 6. Information from the City Building Director indi- cating that $350,000 is sufficient to fund the required, improvements. 7. An insurance binder naming City as additional insured for coverages and amounts as required by Section 12 of the Concession Agreement. (Copy attached.) Therefore, in accordance with Section 3 of the Concession Agreement, I hereby certify: (1) that all necessary permits allowing construction of the renovations and improvements described in Section 4 of the Concession Agreement ( "required improvements ") have been received by Concessionaires; (2) that all permits necessary to the operation of the premises as. contemplated by the.Concession Agreement have been obtained by Concessionaires; and -3- 0 (3) that Concessionaires have acquired sufficient funds. to pay for all required improvements. Concessionaires have demonstrated acquisition of sufficient funds to pay for required improvements by submitting an uncondi- tional written commitment by a local institutional lender to fund all estimated costs of the required improvements. The initial term of the Concession Agreement shall commence on this 15th day of June, 1987 and shall continue as specified in Section 3.B. of the Concession Agreement. App ved as to Form ) J � OAQ city- torney Attest: RLW:oh attachments Robert L. Wynn City Manager I �.Y • uwwllly L,U�G1 w1m 1. F.O. Box 1768 zf %Lu W m Z J 0 MIA f BUILDING J W m S rn W H' 3 Y a M IL- CONST. a 'Ww V! a U) c N W J a 1c a LOT SIZE STRUCT. CL Ric V TEL �J �} OWNE G /��JLJ10. A^ J� CL [C-0 a 0 F .- ,rw co W .Z 0 y v('a AI+ U NiI L: <I-: P-1. 1 17 GL OLC 0 U r iY /r NO. 0 a L/VLL�LI,LM \N . �LL..L- B- 2317 Newport Beach, CA 92658.89W A P P L I UA I I U N_ PLAN CI�C O. Phone: (714) 644 -3288 YOAJ D BUILDING LOCALITY (CROSS STJ D�T / ADDRESS C�j(J iI (l STAT. AREA -IP( p TYPE PR 3 LOT NO. BLOCK TRACT IL- CONST. USE OF ACANT SITE LOT SIZE STRUCT. GRADING APPROVAL REQUIRED C YES O NO ❑ YES ❑ NO TEL �J �} OWNE G /��JLJ10. A^ J� USE ZONE, PARXIN ES ,1 r` r SPRE {z'r - - m,N' ADDRESS[ 8 UEN /G7LJeif+ coi+o3fL{" OefOPAAJTs = 132 - L-MOI.LTIDA) p� CITY !4/YJ y// E71J l ZIP N R"LY F�.t oT `io nIFmt ✓= .It..i'-i+W CONTRACTOR ) AI+ U NiI L: <I-: P-1. 1 17 GL TEL. ADDRESS NO. s•`o�i P..P,- CITY ZIP YARDS: REA R.S. L.3. LICENSE STATE NEWPORT ZONING n AI R SHARE $ CLASS L.C. NO. LIC. NO. APPROVA !. C ARCHITECT '�" �`, ) OR ENGR. J�F N L1.i `.! /�/IJ OL•(JtP/ Y� GG AIPPROVAL EXCISE TAX $ L /� ADORES O6 Lf� • /.� �II g� ZIP ,f/2] 2- GR AGING APPROVAL SAN, DISTRICT NO. ZONE $ CITY / / NOe /2 / 7O BY CNK SJMTC $ DESCRIPTION OF WORK OTHER $ NEW ADO ALTER REPAIR Q DEMOLISH ❑ APPROVAL TOISSUE 4'l TOTAL $ * .LP F' WOR S' COMPENSATION DECLARATION V JA3 /4a .O AJ 1aIJ!'/TN�/� CERTIFICATEFIOF WORKERS L.LUAX.IATIONE INSURANCE, ON A CERTIFIED COPY MUCy M I. 9a00. LAB.u. POLICY NO. COMPANY Cl CERTIFIED COPV IB HERESY FURNISXED. ❑ CERTIFIED COPY IS FILED WIT. TXE BUILDING DEPARTMENT. E$77{TJ 90 3 c PPS /� �Op IC LP• U0 B�� &v SIGNATURE OF APPLICANT DATE wPPLICANT LICENSED CONTRACTORS DECLARATION CERTIFICATE OF EXEMPTION FROM WORKERS' HEREBY AFFIRM THAT I AM LICENSED UNDER PROVI610N6 OF CXAl.. B - COMPENSATION INSURANCE ILOMMENCIMG WITH SECTION ]0001 OF DIVISION a OF THE BUSINESS AND (THIS SECTION NEED NOT BE COMPLETED IF THE PERMIT IS M. ONE HUNDRED PROFESSIONS CODE. AND MY LICENSE IS IN FULL FORCE AND EFFECT. DOLLP" I".., OR LES3.1 1 CERTIFY THAT IN THE PERFORMANCE OF 'HE WORK FOR WHICH THIS PERMIT IS LICENSE CLASS U.. NO. ISSUED. 1 SNAIL NOT EMPLOY ANY PERSON IN ANY HAMMER SO A6 TO fLCDMH SUBJECT TO THE WORKERS' L.MPENSAn.. LAWS OF CALIFORNIA CONTRACTOR DATE DATE APPLICANT OWNER - BUILDER DECLARATION NOTICE TO APPLICANT: AFTER YOU THIS CERTIFICATE OF CYII.C.5 OP TXL T WORKS 1 SXDVLO LLLOME SUBJECT TO TXE WORKERS' CONPEN PROMS I NCRCBY AFFIRM THAT I AM EXEMPT FROM THE CONTRACTORS LICENSE LAW M. THE ONS OR THIS V'HOR CODE. YOU MUST FOPTNWITX COMPLY WITH SUCH PROVISIONS OR "XIS RRNR C FOLLOWING REASON (EEL. TOG1.6. BUSINESS AND PROFESSIONS CODE: ANY CITY OR SMALL 8C DEEMED REVOKED. COUNTY WHICH REQUIRES A PERMIT TD CONSTRUCT. ALTER. IMPROVE, DEMOLISH, OR REPAIR ANY STRUCTURE. PRIOR TO 19 ISSUINCE. ALSO REQUIRES THE APPLICANT CONSTRUCTION LENDING AGENCY FOR SUCH PERMIT TO FILE A SIGNED STATEMENT THAT HE IB LICENSED PURSUANT TO 1 HEREBY AFFIRM THAT THERE I6 A CONSTRUCTION LCNOINO AGENCY FOR THE THE PROVISIONS OF THE CONTRACTORS LICENSE LAW ICHAPTER S ICOMMCNCING PERFORMANCE OF THE WORK FOR M.G. THIS PERMIT 19 ISSUED (BEC. SOS], CPP.CA WITH SECTI.H TDDDI DF DIVISION a OF T.E BUSINESS AND PRDFE85ION8...I OR TXAT HE IS EXEMPT TXCRCPRON AND THE BA616 FOR THE ALLEGED EYEMPf10N. ANY LENDER'S NANO VIOLATION OF SECTION 7081.8 BY ANY APPLICANT FOR A PERMIT SUBJECTS THE APPLICANT TO A CIVIL PENALTY OF NOT MORE THAN FIVE.....ED DOLLARS (S600).Y. 1[11.111.6 ADDRESS I CERTIFY THAT 1 HAVE READ THIS APPLICATION AND STATE THAT TNC ABOVE Cl I. AS OWNER OF THE PROPERTY. OR MY EMPLOYEES WITH WAGES AD THEIR ROLE COMPENSATION. WILL DO THE WORK, AND THE STRUCTURE I6 NOT INTENDED OR THE INFORMPTION IS CORRECT.I AGREE TO COMPLY WITH ALL CITY AND COUNT RD1Nw CS AMC B TE LAWS RELATING TO BUILDING CON.111U. I.N. AND XEREBY OFFERED FOR SALE ISEC. 1066. BUSINESS AN. PROFESSIONS CODE( O 2E PEP LNTATIVf6 OF THIS COUNTY TO ENTER UPON THE CONTRACTOR'S LICENSE lAW DOSS NOT APPLY TO AN OWNER OF PROPERTY WNO BVILD6 OR IMPROVED THEREON. AND WHO DOES 6UCX WORK HIMSELF OR THROUGH V C' ENT N6 ER HIS. OWN EMPLOYEES. PROVIDED THAT SUCH IMPROVEMENTS ARE NOT INTENDED OR OFFERED MR SALE. IF. HOWEVER. THE BUILDING OR IMPROVEMENT IS SOLD WITHIN .ME YEAR OF COMPLETION. THE OWNCR'RUIL.ER WILL HAVE THE BURDEN OF PROVING ='Us' C A;, THAI HE .I. NOT BV11D OR IMPROVE FOR THE PURPOSE OF SALILL J �/� 0.. AS W.ER OF THE PROPERTY. AMH %CW81V6LY COUiRACT1HG WITH LICEN BED ryT PHRNITI'[H OATL CONTRACTORS TO CONSTRUCT THE PROJECT SEC. ]DAl BUSINESS AHD UO FEES $ PRO PE6610H6 CODE; THE CONTRACTOR'S LICENSE LAW DOES NOT APPLY TO AN CONTRACTS OWNER OF PROPER" WAG BUILDS OR IMPROVES THEREON. AND WHO FOR SUCH PROJECTS WITH A CONTRALTOMBI L! EMBED PURSUANT TD THC CONTRACTOR'S LICENSE LAWJ EW VGI $ I� Other 1PC�F �D P/C FOR $ Permit Fee $ ❑ I AM EXEMPT UNDER SEC. .HAP. P R 16 R M Fine Vat $ V Adj. NC Fee $ DAT own C8D $ TOW FBBH a y R 0 W Ma W Z 1 .. I. ` 0 • May 18, 1987 TO: BUILDING DIRECTOR FROM: Public Works Department SUBJECT: (PC 390 -86) FISHERMAN'S REST ROOM, NEWPORT PIER Representatives for the proposed development, Mr. Jean Fraley and Mr. Hal Griffith, have responded to the comments noted in the Public Works Department (PWD) memorandum dated April 10, 1987. Public Works Department approval of the plans is now granted with the following conditions: 1. Ten (10) new dual- treated timber piles will be installed beneath the new restaurant, per attached PWD specifications. 2. A letter from John L. Meek Construction is required confirming that adequate access remains around the new restaurant to replace existing pile with 15 ton crane. 3. Fra..tey /Holsman Architects letter dated April 29, 1987 with enclosures (attached). a. 4" concrete deck does not exist beneath present building and is not required under new restaurant. b. The ramp and railing on North side and East side of building will be removable to provide for maintenance access. C. Full set of calculations submitted which show that wind and wave loads govern. d. Letters from Moffatt & Nichol Engineers and MacDonald McLaren Engineers verifying coordination and review of pier and restaurant work. e. Proposed improvements do not anticipate affecting existing pier railing or fixture. City has installed railings at end of Pier. 4. Fraley /Holsman letter dated May 11, 1987. a. Piling access holes in restaurant to be 3' x 31. b. Access and equipment loading on Pier (15 ton crane with padding from pile cap to pile cap). Page 2 To: Building Department From: Public Works Department May 18, 1987 5. Meeting of May 12, 1987 (Jean Fraley, Hal Griffith, Ken Delano, and John Wolter). a. Ten new dual - treated pilings to be installed with construction of building to minimize future pile replacement through building. b. Proposed Utility Plan (water, sewer, electric, and gas) sewer to pump directly into manhole. Final Utility Plan to be submitted by building contractor. thn Wolter Cooperative Project Engineer JW /bjm cc: Kart DeIino Enclosures: 1. Jean Fraley & Associates letter, 01/09/87 City of Newport Beach letter, 11/24/86 Moffatt & Nichol, Engineers letter, 11/06/86 Moffatt & Nichol, Engineers letter, 11/03/86 Macdonald McLaren Associates (Revisions, dated 1/5/86) 15 pages 2. Public Works Memo to Building Director, dated 4/14/97 3. City of Newport Beach letter to Fraley Architects, dated 4/20/87 4. Fraley /Holsman letter to CNB, dated 4/29/87 5. Macdonald McLaren Associates letter to Fraley Holsman, dated 4/24/87 6. Fraley Holsman Architects Letter of Transmittal, dated 4/29/87 7. Moffatt & Nichol letter to Jean Fraley, dated 4/27/87 8. Macdonald McLaren Associates (Revisions A, dated 1/5/86) 15 pages 9. Macdonald McLaren Associates (Revisions B, dated 12/86) 14 pages 10. Macdonald McLaren Hammond, Inc. (Revisions C, dated 1/15/86 through 1/22/86) 22 pages 11. Macdonald McLaren Hammond, Inc. (Structural Calculations D, dated 12/4/86 through 1- 22 -86) 12. Fraley /Holsman letter to John Wolter, dated 5/11/87 13. John L. Meek Construction letter to Fraley /Holsman, dated 5/11/87 JL • STATE OF CALIFORNIA —THE RESOURCES AGENCY GEORGE DEUKMEIIAN, Goroinor CALIFORNIA COASTAL COMMISSION PG: wr SOUTH COAST AREA - 245 WEST BROADWAY, SUITE 380 LONG BEACH, CA 90802 (213) 590-5071 COASTAL DEVELOPMENT PERMIT No. 5 -86 -91 Page 1 of 2 14, 1986 tie California Coastal Commission R granted to this permit for the development described below, Standard and Special conditions. a Demolition of the.existing and construction of a 4,200 sq.ft. Fish Bait/ Restaurant with approximately 2125 sq.ft. customer service area and take out food facilities. The city proposes to charge in -lieu parking fee equivalent to 80 parking spaces. Site: The end of the Newport Pier., Newport Beach Issued on behalf of the California Coastal Commission by. PETER DOUGLAS Executive Director Title: Staff Analyst ACKNOWLEDGEMENT The undersigned permittee acknowledges receipt of this permit and agrees to abide by all terms and conditions- thereof. Date IMDO?TANT: THIS PERMIT IS NOT VALID. UNLESS AND UNTIL A COPY OF THE PERMIT WITH THE SIGNED ACKNO"ILEDGEMENT HAS BEEN RETURNED TO THE COMMISSION OFFICE. COASTAL DEVELOPMENT PERMIT. Page 2 of Application No. 5 -86 -91 STANDARD CONDITIONS: 1. Notice of Receipt and Acknowledgement The permit is not valid and construction shalt not commence until a copy of the permit, signed by the permittee or authorized agent, acknowledging receipt of the permit and acceptance of the terms and conditions, is returned to the Commission office. 2. Expiration. If construction has not commenced, the permit will expire two years from the date on which the Commission voted on the application. Construction shall be pursued in a diligent manner and completed in a reasonable period of time. Application for extension of the permit must be made prior to the.expiration date. 3. Compliance. All construction must occur in strict compliance with the ' proposal as set forth in the.application for permit, subject to any special conditions set forth below. Any deviation from the approved plans must be reviewed and approved by the staff and may require Commission approval. 4. Interpretation. Any questions of intent or interpretation of any condition will be resolved by the Executive Director or the Commission. 5. Inspections. The Commission staff shall be allowed to inspect the site and the development during construction, subject to 24 -hour advance notice. 6. Assignment. The permit may be assigned to any qualified person, provided assignee files with the Commission an affidavit accepting all terms and conditions of the permit. 7. ..Terms and Conditions Run with the "Land. These terms and .conditions shall be perpetual, and it i, the intention of the Commission and the permittee to bind all future owners and possessors of the subject property to the terms and conditions. SPECIAL CONDITIONS: Prior to transmittal of this permit, the City shall submit a signed document which shall indemnify and hold harmless the California Coastal Commission, its officers; agents, and employees against any and all claims, demands, damages, costs, expenses of liability arising out of the acquisition, design, construction, operation, maintenance, existence, or failure of the permitted project. •_ -� 0 11 0 OUNTYOF RANGE s" s HEALTH CARE AGENCY PUBLIC HEALTH ENVIRONMENTAL HEALTH February 6, 1987 Hal Griffith 611 Avenida Victoria San Clemente, CA 92672 I Lim UHAM DIRECTOR L. REX EHLING. M.D. HEALTH OFFICER 1726 WEST 17TH STREET SANTA ANA, CA 92706 TELEPHONE: 716 /6 96.7601 MAILING ADDRESS: P.O. SOA 955 SANTA ANA: CA 52702 RE: Plan #87 -023, Fisherman's Gallery, Newport Pier, Newport Beach, CA Dear Mr. Griffith: Your plans have been reviewed for the above food establishment. The plans are now approved, subject to the following conditions: 1. All constructio%,qust conform with these approved plans. Alterations or changes to these- plans.must -have prior approval by the Plan Check Section of Environmental,Health. 2:- It is`the res'ponsibiT ty ofgthe health permit appl'i'cant to call fora fins l inspection and receive approval from this Agency prior to opening. Make ar -: rangements at least two working days in advance. A Health Permit must be issued oor -•to opening. 3. See attached correction sheets for additional requirements. 4. Provide.* dry food storeroom or area with a minimum of 32 linear feet of wall space laored with 4approved storage shelving at least 3 tiers high acid 18 inches deep. 5. Provide'at least 16 linear feet of liquor storage shelving. 6. Provide a clothing change /storage room or rooms where food service personnel may change and store their outer garments. Twenty square feet of floor space is the minimum for small operations: Provide a shelf and pole or lockers, adequate lighting and sufficient ventilation., This room must be separate , from restrooms and may not be used as an.office. No telephone or computer jacks will be allowed in the-room. 7. See item #2f, in the attached correction sheet, regarding approved floors. This includes an area 30 "wide along the counter of the waitresses' station. 8. Walls in the kitchen /food preparation areas and dishwashing areas shall be smooth and nonabsorbent, with a light colored, ,easily cleanable finish. (NOTE: Brick, concrete block, rough concrete'or plaster re not acceptable.) Materials other than smooth plaster or putty coat plaster, drywall with sealed joints require submission of samples. All surfaces shall be sealed with a high -gloss or semi -gloss enamel, epoxy, varnish or other approved sealer. N a man's Galley uary 6, 1987 ge 2 9. Submit samples of floor quarry tile and quarry tile coved bases for review p_rior to installation. 10. Floor drains are required where approved abrasive quarry tile is installed. Abrasive quarry tile may only he installed in traffic areas. Abrasive quarry tiles may not be installed below equipment or on coved 'bases. 11. Painted surfaces must be finished with a gloss enamel paint, of light color. 12. A wall -hung lavatory sink shall be provided in the food preparation area. Soap and towels shall be provided in approved permanently installed single- service dispensers at the handwasM ng sink. 13. ''!here mulituse kitchen utensils (pots and pans) are washed by hand, there shall be provided at least a two- compartment sink with drain boards of all metal con- struction. The minimum DA rtmentsiza shall be at least 16" by 18" by 12" deep with minimwo 18" iiraiq eoards; however, the sink must otherwise be capable of holding the largest utensils used and the drain boards shall be as larqe as the largest sink compartment that is over 18 inches. . 14. All floor sinks must be at least half - exposed or be in line with the front face of elevated freestanding equipment, and within 15 feet of the condensate produ- cing equipment. Provide easily removable (without the use of tools) safety grates on expased floor sinks. Drain lines must be at least 6 inches off the floor and 1 /2•inch away from walls. A protective enclosure will be required around the backside of half - exposed floor sinks if equipment is installed on curbs or under a sealed base such as a produce showcase. 15. The water heater shall have a recovery rate of at least 110 gallons per hour. Install the water heater on 6 inch high, round, metal leas or on a 4 inch hiqh, coved base platform. 16. Provide a 12" high splashguards around the handsinks in the kitchen. 17. All equipWnt, including shelving, must be supported by 6 inch high, round, metal leg 9; commercial castors, or completely sealed in position on a 4 inch high coved base or concrete curb to facilitate ease of cleaning. This includes a beer coolers at the bar. 18. A door - activated air curtain that delivers an air velocity of at least 750 feet per minute measured 36 inches above the delivery door. The curtain of air shall covgr the entire width of the door. 19. All outside doors must be self - closing. All openable windows must be provided with screens not less than #16 mesh. 20. No grease traps are required by this Aqency. If installed, nowever, they must open outside this food facility. 3al1ey 1987 21. A minimum clearance of 30 ", must be maintained in all walkways. 22. Provide adequate ventilation and lighting for the changeroom. 23. The lines from the.syrup tanks, to the drink dispenser head must be enclosed in a chase. 24. Install a dunnage rack tw store the beverage dispenser syrup tanks. 25. Provide cup dispensers at the soft drink machine if single -use drinking utensils are used. 26. All exposed conduit, plumbtnq, etc., must he installed at least 6 inches off the floor and 1/2 inch away.from walls. All exposed flex conduit is to be seal -tight or equivalent. 27. See attached memo regarding pass- through windows. If I can be of assistan(ie to you, please call (714) R34 -6944, between 8:00 a.m., to 9:00 a.m., weekdays. Very.truly yours, \I v ..4p.a Jorge Ghersi,. S., Environmental lth Sanitarian Plan Check & Construction Unit Environmental Health JG /nn Attachments s 0 CITIZENS BANK 4?%= 1u June 4, 1987 Mr. Kenneth J. Delino Assistant City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, Ca 92663 Dear Mr. Delino, In response to your requirement to obtain a written commitment from a local institutional lender to provide assurance of available funds to complete construction of a restaurant on the Newport Pier, I am providing you with the following: Terms of Commitment to Finance Improvements To Proposed Fishermans Restaurant on Newport Pier Amount: All costs of construction to a maximum funding of $350,000. Terms: Draws for construction must begin by 10 -1 -87. Commitment will expire 4 -1 -88 at which time outstanding balance will be converted to a term loan.. A condition of our loan arrangement with H.E.G. Enterprises,Inc. is that they assign, with the City of Newport Beach's acknowledgement, the rights to the Concessionaire Agreement as collateral for our loan. It is my understanding from reading the Concessionaire's Agreement that our rights as an assigned party will allow us to receive value from the transfer of the concession to a subsequent operator should H.E.G. depart for any reason. If this is contrary to your understanding, please notify me immediately. Sincerely, tcae'IH. lullarly Senior Vice President /Manager MHM:sg 2970 Harbor Blvd. Costa Mesa, CA 92626 -3994 714/979.4200 FAX: 714/432 -8540 0 Jarms * FRED S. JAMES & CO. OF WASHINGTON 1700 Fourth & Blanchard Building, Seattle, WA 98121 206 441 -5900 Telex 4740037 May 28, 1987 Mr. Ken Delino City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: H.E.G. Enterprises Dear Mr. Delino, Enclosed please find a Certificate of Insurance on the General Liability and Property coverages for the above captioned Insured. In addition to the coverages presently written, we are prepared to bind Course of Construction coverage on the building commencing approximately September 1, 1987 at the Newport Beach Pier, The Course of Construction coverage will be in the amount of $350,000 (or the completed value determined at time of binding). Coverage will be on an all risks basis. Upon completion, the permanent insurance will be added to their present property policy. If you have any questions please let us know. Very ruly�yours, Kathy arisoC�EGn��` -- cc: Mr. Hal Griffith H.E.G. Enterprises Mr. 'Mn. H. Scates, Jr. Insurance Brokers Since 1858 RECEIVED JUN 01 1967 ► Mayor City of fewpoA f i FRED S. JAMES & CO. OF WA 1700 Fourth & Blanchard Bldg. Seattle., WA 98121 INSURED H.E.G. ENTERPRISES, INC., ETAL 1301 Alaskan Way Seattle, WA 98101 5/28/87 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. I COMPANIES AFFORDING COVERAGE LETT LPER Y A HARTFORD ACCIDENT &INDEMNITY CO. COMPANY B INDUSTRIAL INDEMNITY COMPANY COMP LETTER C . COMPANY p LETTER COMPANY L,. LETTER THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUEOTO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWTHSTANDHIG ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, Tiff INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONDI- TIONS OF SUCH POLICIES. CO TR TYPE OF INSURANCE POLICY NUMBER � I LIABILITY LIMITS IN THOUSANDS FACII AGGREGATE OCCURRE A GENERAL LIABILITY COMPREHENSIVE FOM7 PREMISE&fOPEMTIONs UNDEFKMND EXPLOSION A COUAPSE HAZARD PRODWTSCOWLETED OPERATIOplS CONTRACNAL BA)FAENDENf CONTRACTORS BROAD FORM PPMMY DAMAGE PERSONAL INJURY 52UENZE7357 10/30/86 10/30/87 . ' BOINLY INJURY $ $ PROPERTY DAMAGE $ $ COMBINED $ 1,000, $ 1,000, PERSONAL INJURY .. $ 1 , 000 AUTOMOBILE LIABILITY AN Y AUTO ALL OWNED AUTOS (PFIVV.. PASS.) ALL OWNED AUTOS' (PRN.RPA�SS. ) WRED AUTOS NON-OWNEO AUTOS GARAGE LIABILITY .. .. MY 0 PIMA VUrt1 PM l DAMAGE BI COMWNrD $ $ . $ $ EXCESS LIABILITY UMBRELLA RNBI OTHER THAN UMBRELLA. FORM COMBINED $ $ WORKERS' COMPENSATION AND EMPLOYERS' LU181lJTY CN8815075 - 12/8/86 12/8/87 ' STATUTORY $ VZH ALCOBNT) toLSEASEaoucr uMm $ (DISEASE -EACH EMPLOYEE). OTHER DESCRIPTION OF OPERATONGILOCATIONSNEHNxES !SPECIAL ITEMS LOCATION: NEWPORT BEACH PIER NEWPORT BEACH, CA CITY OF NEWPORT BEACH 3300 Newport Blvd. Newport Beach, CA 92663 Delino SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EX- PIRATISp AIL_...3,__ DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MDAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAX. SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF AN L,MND UPON THE COMP Y, ITS AGENTS OR REPRESENTATIVES. P+ James Certificate of Insurance FRED. S. JAMES & CO. OF WASHINGTON 1700 Fourth & Blanchard Bldg., Seattle, WA 98121 206 623 -5900 THIS IS TO CERTIFY that such insurance policies as are indicated hereunder have been issued and are in full force and effect on the effective date of this Certificate. INSURED: GREAT WESTERN PACIFIC & H.E.G. ENTERPRISES, INC., ET AL ADDRESS: 1301 Alaskan Way Seattle WA 98107. Mortgage or Loss Payee covering DESCRIPTION AND LOCATION OF PROPERTY AND /OR OPERATIONS: .. ,against the risk of loss KIND OF • nf dirprt physical loss . . ,• flood _., PArthqjinkp, , • fprms, •,. •. end Pxclillginng nf the palirjE in the amount of limits of AMOUNT OR LIMITS: 250,000 Loss Limit Per Occurrence commencing on the 3Uth dayof Uctober, 11;tbu at 1t:vi a. M, PST and ending on the 30th day of October, 1987 at 12:01 a. M, PST NUMBER NAME OF INSURER F8300464 LEXINGTON INSURANCE COMPANY This certificate is issued as a matter of information only and, as such, neither affords any insurance nor confers any rights upon the holder. It neither affirmatively nor negatively amends, extends or alters the coverage afforded by the policy identified above. CITY OF NEWPORT BEACH ISSUED TO ADDRESS 3300 Newport Blvd., Newport Beach, CA 92663 Attn: Ken Delino This policy shall not be cancelled nor reduced in coverage until after 30 days written notice of such cancellation or reduction in coverage shall have been mailed to this certificate holder. Certified this 28th day of May t9 1987FRE . JAME & CO. O ASHINGTON. By {lld� L. F.S.J. -2M A PRODUCER Fred S. James & Co. of WA . 2121 Fourth Ave., Suite 1700 Seattle, WA 98121 CODE SUB-CODE INSURED Great Western Pacific, Inc. H.E.G. Enterprises, Inc. ETAL 1301 Alaskan Way Seattle, WA 98101 ISSUE DATE (MM /DD /YY) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW COMPANIES AFFORDING COVERAGE LETTERRY A Fireman's Fund Insurance Company COMPANY B LETTER COMPANY `. LETTER __._.. ...... ....... .. .... .... COMPANY D LETTER COMPANY E LETTER THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE = POLICY EXPIRATION; ALL LIMITS IN THOUSANDS DATE (MM1DDNY) _ DATE (MM /DD1VY) GENERAL LIABILITY A X COMMERCIAL GENERAL LIABILITY MXC80191417 +. CLAIMS MADE X OCCUR.; E OWNER'S & CONTRACTOR'S PROT. MOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NOWOWNED AUTOS GARAGE LIABILITY LIABILITY OTHER THAN UMBRELLA FC WORKER'S COMPENSATION AND EMPLOYERS' LIABILITY OTHER _..... .............. ........ ......... — _.__ _..___._..._._._.. DESCRIPTION OF OPERATIONS /LOCATIONSIVEHICLESMESTRIC MNS /SPECIAL ITEMS Location: Newport Beach Pier Newport Beach, CA City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 ATTN: Ken Delino GENERAL AGGREGATE $ 10/30/89 10/30/90 PRODUCTSCOMPtOPS AGGREGATE $ PERSONAL S ADVERTISING INJURY ; $I EACH OCCURRENCE _....__..._..._.... __. _ $ f FIRE DAMAGE (Any one fire) _ MEDICAL EXPENSE (Any one person) _$ _ $ COMBINED ' SINGLE r j LIMIT — —` yBODILY INJURY -. $1 _(Per person) BODILY -_ INJURY 3 $ _ (Per accident) PROPERTY i $ DAMAGE EACH AGGF = `OCCURRENCE: _ $ $ I STATUTORY -. .., SHOULD ANY Or THE ABOVE. DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THEN ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE Td THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH 14%4CE,SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE COIJ7PANY, ITS AGENTS OR REPRFRFNTATIVES. a �Y pi ISSUE DATE(MM/00/YY) 10/31!88 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS PRODUCER NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, FRED S. JAMES & CO. OF WA. EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 1700 FOURTH & BLANCHARD BLDG. SEATTLE, WA 98121 COMPANIES AFFORDING COVERAGE LETTERNY A FIREMAN'S FUND INSURflNCE COMPANIES COMPANY s LETTER INSURED GREAT WESTERN PACIFIC, INC., H.E.G. ENTERPRISES, INC., ETAL COMPANY `. LETTER COMPANY LETTER 1301 ALASKAN WAY SEATTLE, WA 98101 COMPANY E LETTER - - THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONDI- TIONS OF SUCH POLICIES. 00 LT TYPE OF INSURANCE POLICY NUMBER DATE ( MDDfVE DATEY EFFECTIVE POLICY EXPIRATION DATE (MI IRATIO # ALL LIMITS IN THOUSANDS GENERAL LIABILITY - GENERAL AGGREGATE $Z, vvv, A COMMERCIAL GENERAL LIABILITY CLAIMS MADE FIOCCURRENCE MXC80144115 10J30 /813 I0J30J X PRODUCTS- COMPIDPS AGGREGATE $.Z,UUV, x+ PERSONAL & ADVERTISING INJURY $ } vvtj } X OWNER'S & CONTRACTORS PROTECTIVE EACH OCCURRENCE $ } Quo , FIRE DAMAGE (ANY ONE FIRE) $ , MEDICAL EXPENSE ZANY ONE PERSON) $ , AUTOMOBILE LIABILITY ANY AUTO CSL $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (PER PERSON) $ BODILY INJURY ACCIDENT) $ HIRED AUTOS NON-OWNED AUTOS .PROPERTY DAMAGE $ GARAGE LIABILITY A EXCESS LIABILITY X UMRELLA XLK1838021 10/30/88 10/30/89 EACH AGGREGATE $1�Fi �E $ 1,000, OTHER THAN UMBRELLA FORM WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY 7$$ (EACH ACCIDENT) (DISEASE POLICY LIMIT) (DISEASE EACH EMPLOYEE) OTHER DESCRIPTION OF OPERATIONS/ LOCATIONS /VEHICLES) RESTRICTIONS/ SPECIAL ITEMS LOCATION: NEWPORT BEACH PIER NEWPORT BEACH,,,CA SHOULD ANY VE DESCRIBED POLICIES BE CANCELLED BEFORE THE EX• PIRATION DOF, THE ISSUING COMPANY WILL ENDEAVOR TO CITY OF NEWPORT BEACH MAIL 30 DN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE 3300 NEWPORT BLVD. LEFT, BUT FAIL S CH NOTICE SHALL IMPOSE NO OBLIGATION OR ZNN NEWPORT BEACH, CA 92663 LIA LITY OF DU ON T E COMPANY, ITS AGENTS OR REPRESENTATIVES. AUT RIZED ATTN: KEN DELINO • �i ^' \ 4 �b� �$� 3 7 �. �, .. 1 aa3` .,� -. Ikkill J1 "lei ISSUE DATE (MM /DDIYY) 10/30/87 PRODUCER THIS CERTIFICATE ISSUED MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE E HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Fred S. James & Co. of WA 1700 Fourth &Blanchard Bldg- COMPANIES AFFORDING COVERAGE Seattle, WA 98121 COMPANY A LETTER Hartford Accident & IndemnitV Co. COMPANY S LETTER INSURED COMPANY C LETTER H.E.G. Enterprises, Inc., ETAL 1301 Alaskan Way Seattle, WA 98101 COMPANY D LETTER COMPANY E LETTER THIS IS TO CERTIFY THAT POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS, AND CONDI- TIONS OF SUCH POLICIES. DO LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MWDDN)r)) POLICY EXPIRATION DATE (MMMDM) ALL LIMITS IN THOUSANDS GENERAL LIABILITY GENERAL AGGREGATE $1 000 A COMMERCIAL GENERAL LIABILITY CLAIMS MADE ®OCCURRENCE 52UENZE7357 10/30/87 10/30/88 PRODUCTS COMNOPS AGGREGATE $1.000. X PERSONAL & ADVERTISING INJURY $ 0 OWNER'S & CONTRACTORS PROTECTIVE EACH OCCURRENCE $ FIRE DAMAGE (ANY ONE FIRE) $ 50 MEDICAL EXPENSE (ANY ONE PERSON) $ AUTOMOBILE LIABILITY ANY AUTO CSL $ ALL OWNED AUTOS SCHEDULED AUTOS DMILY INJURY (PER PERSON $ HIRED AUTOS NON -OWNED AUTOS BODILY INJURY ACC NENn $ PROPERTY DAMAGE $ GARAGE LIABILITY EXCESS LIABILITY ROTHER EACH AGGREGATE Q. OCWRRENCE $ $ THAN UMBRELLA FORM WORKERS' COMPENSATION STATUTORY Is )EACH ACCIDENT) AND $ (DISEASE - POLICY LIMIT) EMPLOYERS' LIABILITY $ (DISEASE EACH EMPLOYEE) OTHER DESCRIPTION OF OPERATIONS /LOCATIONS /VEHICLES I RESTRICTIONS /SPECIAL ITEMS LOCATION: Newport Beach Pier Newport Beach, CA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EX- City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 PIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTHRCATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL UAPOSE NO OBLIGATION OR ATTN: Ken Delino LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE 7e) CITY OF NEWPORT BEACH • OFFICE OF THE CITY MANAGER June 24, 1985 TO: MAYOR AND CITY COUNCIL COUNCIL AGENDA ITEM N0. J -1 BY THE CITY COUNCIL CITY OF NEWPORT BEACH FROM: Executive Assistant • JUN 24 1 0,85 SUBJECT: NEWPORT PIER CONCESSION C -i9el APPROVED ACTION: If desired, approve the conditional Concession Agreement with Wolfgang Merting and HEG Enterprises for the reconstruction of the Newport Pier Concession and authorize the Mayor and City Clerk to execute the Agreement. Background: The existing concession on the Newport Pier consists • of a sit -down restaurant serving fish and chips, hamburgers, etc.; a take -out window; an ice cream only take -out window; a T -shirt shop; and a tackle and bait shop. The current concessionaire's William and Erika Merting together with Hal E. Griffith have pro- posed to the City a complete renovation of the existing building. Mr. Griffith has a similar operation near the San Clemente pier and comes highly recommended from that City. An overview of the proposal was presented to the City Council at the Study Session of October 9, 1984, and a more precise proposal was presented at the February 25th Study Session. Summary of Proposal: A Concession Agreement and plans and specifi- cations are attached. A summary of the major provisions and responses to previous City Council inquiries follows: 1) The concession would include a sit -down casual restaurant with a take -out window and bait sales. The concession building would be modeled similar to the building located at the • base of the San Clemente Pier. The size of the structure has been scaled down from previous submittals. If the Council desires further reductions, the 7 -foot cantilevered overhang provides a convenient opportunity to reduce net public area. The overhang contains approxi- mately 1050 square feet of net public area. TO: MAYOR AND CITY COUNCIL - Page 2 2) The term of the agreement would begin • only after necessary permits have been issued and the concessionaires have demonstrated financial responsibility. The existing agreement would remain in effect until then. The agreement therefore is conditional and will not be effective until all conditions are met. The length of the term would be 15 years, with two five -year option periods for a total of 25 years. 3) The concessionaires, at their sole cost and expense, would completely renovate the existing building. This will probably include complete demolition and reconstruction. The concessionaires, at their sole cost and expense, would reinforce and /or reconstruct the pier . as required by the Public Works Department to support the additional weight of the reno- vated structure.. The concessionaires would be required to construct a handrail around the end of the pier where the deck widens and along • 50 feet of the pier where the deck is narrow. The agreement will not be effective unless the Public Works Department approves all struc- tural plans. 4) The concessionaires, at their sole cost and expense, would provide all utility trans- . mission lines to the new building. A sanitary sewer line will be installed. 5) The renovated building would immediately become property.of the City. 6) Only beer and wine sales will be permitted, and only within the restaurant. The conditions imposed are similiar to those imposed on RUBY'S on the Balboa Pier including a sixty(60) day review period and continued monitoring. If any alcohol - related problems are detected, the City may revoke its permission for beer and wine sales. RUBY'S has served beer and wine without incident since July 1, 1983. I . It t TO: MAYOR AND CITY COUNCIL Page 3 7) Parking would not be allowed on the pier • and no additional parking spaces would be pro- vided. According to analysis conducted by the Planning Department, the existing building, with 1070 square feet of net public area, would re- quire 23 parking spaces. The proposed building, with 3150 square feet of net public area, would require 79 parking spaces. While not obligated to provide spaces, the City could designate that the $1,000 per month fixed fee (see #11 below) be placed in an in lieu parking fund to be used . for tidelands parking improvements. RUBY'S contains approximately 1736 square feet of net public area and would require 39 parking spaces. Delivery vehicles would be allowed on the pier as they are now. Vehicle gross weight is limited'to 10,000 pounds per axle. No problems have been evident with the frequency of deliveries interfering with use of either pier. 8) The concessionaire would have first rights of • refusal to any.new commercial development in an exclusive area within a 100 foot radius of the pier. The concessionaires are aware of and interested in.the proposals for a restaurant at the base of the pier. This provision provides the concessionaires with some protection from competition and helps insure their sizable in- vestment. 9) Concessionaires would be responsible for all maintenance and repairs on the renovated building. 10) The City would be responsible for maintaining the pier structure including any reinforcements required of concessionaires by the Public Works Department. 11) The concessionaires would be responsible for cleaning the end of the pier where the deck widens. • 12) Compensation to the City would'be $1,000 per month plus 5% of gross revenues. It is estimated that payments to the City will be $125,000 per year. The current concession returns approximately $20,000 per year to the City at a rate of 5.5% of the gross, plus $1,500 for each of the three summer months. RUBY'S has returned approximately $63,000 during the past year at a rate of 5.5% of the gross, plus $1,000 for each of the three summer months. Recent correspondence from the RUBY'S owner indicates expected gross revenues of $1.4 million for 1985, yielding $80,000 to the City. T 0 TO: MAYOR AND CITY COUNCIL - Page 4 • 13) Concessionaires would hold the City harmless from all liability and, should the pier.be destroyed, the City would have no further obligation to concessionaires. 14) Concessionaires would maintain sufficient insurance for fire, destruction, and other liability. RECOMMENDATION: This proposal presents the City with an opportunity to rebuild the concession on the Newport Pier with no cost or risk to the City. It is recommended that the City Council review, modify as desired, and approve a new concession agreement to renovate and upgrade the structure and the service to the public on the Newport Pier. KJD ; mm attachments • KENNETH 4 DELINO lu i • MW C3 . . . . . . . . . . O z oa* Er w Ld gi 0 • ; • I Im ExHiBrT s • II z Pi 3 U � 1 a°. LL 0 FFO Wia mYI z rn Lij fill, fla-H11,11 0 FFO Wia mYI z rn Lij 7 EXHIBIT C PAGE I j 9 T ...... t .... 1M yt. ................... 7 EXHIBIT C PAGE I j tni I" L pq L-A EXHIBIT C PAGE 2 z A 3. SO RI fyy b. EXHIBIT C PAGE 2 z A 3. SO yyN fyy b. V rra EXHIBIT C PAGE 2 z A 3. P-, s 1 w_ -_� Ala V rra EXHIBIT C PAGE 2 z A 3. f �j 9 0 EXHIBIT C - PAGE 4 �l dos z m Yi 0 0 1� u I iy 1 z EXHiBIT_( - PAGE 3 m W m. }:m �y �3 W w cc O LL 4 Z 2 O U W mp 6 3 Z W J J N 2 ga4 W S N 4 W.Merting 2900 s.Greenville St. Santa Ana,Ca 92704 Concessionaire,Newport Pier. Mr.Kenneth Delino Executive Assistant City of Newport Beach Dear Mr.Delino, i3 December 3,1985 Ir I. please be advised that the Newport Pier Concession Building will be closed FRCK December 9 TO 25,as we are taking our vacation. 1985 r Should there be any need to enter the building, Mr.Stanley Bonillas has a key and is authorized to do so. Mr. Bonillas telephone IT is: (714) 673 5167. His address is: 211 B 34 St. Newport Beach,Ca Please forward a copy of this letter to the Newport Beach Police Department xyFerely , W. Merting Concessionaire Newport Pier e r ' BETWEEN THE CITY OF NEWPORT BEACH AND WOLFGANG AND ERIKA MBRTING M4 BEG ENTERPRISES L i t i TABLE OF CONTENTS CONCESSION AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH, WOLFGANG AND ERIKA MERTING AND BEG ENTERPRISES Section Headings Page RECITALS........................... 1 Section 1. CONCESSION.... ................. 1 Section 2. LOCATION /PREMISES .................. 1 Section 3. TERM.. .. ............ ......... ...... 2 Section 4. RENOVATION OF PREMISES ............. 3 Section 5. UTILITIES.. ................. 5 Section 6. USE OF THE PREMISES ................ 5 Section 7. COMPENSATION TO CITY ............... 8 Section 8. MAINTENANCE AND REPAIR ............. 11 Section 9. PROHIBITION AGAINST TRANSFER....... 12 Section 10. EQUIPMENT AND FURNISHINGS.......... 13 Section 11. TAXES .............................. 13 Section 12. INSURANCE.. 14 Section 13. SAFETY REQUIREMENTS ................ 16 Section 14. COMPLIANCES.... .............. 16 Section 15. PERMITS AND LICENSES ............... 16 Section 16. HOLD HARMLESS.. .... .. .......... .... 16 Section 17. DAMAGE OR DESTRUCTION TO PIER OR PREMISES ........................... 17 Section 18. SUBORDINATION ...................... 19 Section 19. DEFAULTS ...................... 20 Section 20. DEFAULT BY CITY .................... 20 Section 21. CONDEMNATION ....................... 20 Section 22. NOTICES.. .... .. .... ....... . ...... 21 Section 23. PRODUCTION OF STATEMENT, RECORDS AND AUDIT.. .. .. ....... ......... ... 22 Section 24. INTEREST ON PAST -DUE OBLIGATIONS... 23 Section 25. WAIVERS ............................ 23 Section 26. RECORDING.. ................ 23 Section 27. CUMULATIVE REMEDIES ................ 23 Section 28. SECURITY MEASURES .................. 23 Section 29. HOLDOVER.. .. ............... 23 Section 30. COSTS OF LITIGATION.. ....... 23 Section 31. ADMINISTRATION OF AGREEMENT........ 24 Section 32. CAPTIONS FOR CONVENIENCE........... 24 Section 33. GOVERNING LAW.. .... ............ 24 Section 34. MERGER OF NEGOTIATIONS.............. 24 Signatures .... ............................... 24 CONCESSION AGREEMENT This Concession Agreement, entered into this % day of � 1985 by and between the CITY OF NEWPORT BEACH, a mu cipal corporation (hereinafter "City ") and WOLFGANG and ERIKA MERTING, husband and wife, and HEG ENTERPRISES, a Cali- fornia Corporation, a Joint Venture, (hereinafter collectively "Concessionaires "), is made with reference to the following: R E C I T A L S: A. The City is the owner, and is in possession and con- trol of the Newport Pier, located in the City of Newport Beach, which extends into and over the water of the Pacific Ocean, at the extension of McFadden Place (hereinafter "Pier "). The Pier is used by the general public for the purpose of fishing and sightseeing and houses a restaurant currently operated by Wolfgang and Erika Merting ( "Merting "). B. The City Council finds that it is in the interest of the citizens of Newport Beach that the concession on said Pier be continued, and upgraded, for the use and convenience of all persons using the Pier for fishing and recreational purposes. C. The City Council finds that the restaurant concession should continue to sell bait for the convenience of those using the Pier for fishing. D. The City by agreement dated May 31, 1977, granted to Wolfgang and Erika Merting, husband and wife, a concession on the Pier which concession expires on January 1, 1988 (hereinafter "Old Concession Agreement "). The Concessionaires jointly have made a proposal to the City to upgrade and reconstruct the concession on the Pier. E. The proposed agreement is consistent with the provi- sions of the public trust imposed upon tidelands and all ordi- nances, plans and policies of the City of Newport Beach related to the operation of concessions upon publicly -owned property. F. The proposed arrangement is mutually agreeable to the City and Concessionaires upon the terms and conditions herein. NOW, THEREFORE, the undersigned parties do hereby mutually agree as follows: 1. CONCESSION. City hereby grants to Concessionaires the exclusive right, privilege and concession to construct, operate, and main- tain a full service restaurant, a take out restaurant and bait sales on the Newport Pier for the purpose of providing sitdown, casual, food service, takeout food service and sale of bait for the convenience of persons using the Pier. 2. LOCATION /PREMISES. The location of the Newport Pier is depicted on the Districting Map of the City of Newport Beach attached to this Agreement as Exhibit "A" and incorporated herein by this refer- ence. The Concession granted by this Agreement shall be operated on the southerly end of the Pier where the deck widens, and as more specifically depicted on the plans attached to this Agreement as Exhibits "B and C" and incorporated herein by this reference (hereinafter "Premises "). -1- 3. TERM. A. Effective Date. The term of this Agreement shall commence (hereinafter "Effective Date ") upon written certification by the City Manager: (1) that all necessary permits allowing construction of the renovations and improvements described in Section 4 of this Agreement ( "required improvements ") have been received by Concessionaires; (2) that all permits necessary to the operation of the premises as contemplated by this Agreement have been obtained by Concessionaires; and (3) that Concessionaires have acquired sufficient funds to pay for all required improvements. Concesssionaires may demonstrate acquisition of sufficient funds to pay for required improvements by submitting, to the City Manager, one or more of the following: (a) An unconditional written commitment by a local institutional lender to fund all estimated costs of the re- quired improvements. (b) Evidence that Concessionaires have funds on account in certificates of deposit or otherwise at a bank located in the County of Orange, State of California, which are pledged solely for the purpose of constructing the required improvements. (c) Delivery of performance, labor and ma- terials and payment bonds, naming City as insured issued by a bonding company in an amount sufficient to cover all estimated costs for such improvements., (d) Other evidence acceptable to the City. City shall review and, in its reasonable discretion, ap- prove such evidence within thirty (30) days of receipt. If City fails to object to the evidence presented by Concessionaires within thirty (30) days, the condition shall be deemed satisfied. Concessionaires shall use required permits, approvals and ble. Concessionaires are solely sary permits and approvals. their best efforts to obtain all cetifications as soon as possi- responsible for obtaining neces- In the event that all necessary permits, approvals and certifications are not received on or before July 1, 1987, this Agreement shall be deemed terminated. B. Initial Term. The term of this Agreement shall commence on the Effective Date (but not later than July 1, 1987) and shall continue for an initial term of fifteen (15) years subject to earlier termination as specified in Section 19. C. Extended Term. Concessionaires may, at their option, extend the term of this Agreement for two (2) additional periods of five years each provided that Concessionaires notify the City in writing of their election to extend at least six months prior to expiration of the term, or any extension of the term, of the Agreement -2- r �f�r ( "Extended Term "). If Concessionaires are in default of their obligation under this Agreement on the date the Notice to Extend is given or the date the Extended Term is to commence, the Extended Term shall not commence and this Agreement shall expire at the end of the last term in effect. D. Upon expiration or termination of any Term or in the event of early termination, Concessionaires shall immediately surrender possession of the Premises to Lessor. 4. RENOVATION OF PREMISES. A. Required Improvements. Concessionaires shall, at their sole cost and expense, construct, or cause to be constructed the following ( "required improvements "): (1) Certain exterior and interior improvements to the structure now located on the Premises all in substantial conformance with the Plans and Specifications attached as Exhibits "B" and "C." It is understood that construction of the required improvements may necessitate substantial or complete demolition of the existing structure on the Premises; (2) Such improvements as the Public Works Director and /or the Building Department may require to improve or rein- force the Pier and related structure including piles, pile caps, cross bracing, stringers, railings and deck (hereinafter "Pier ") to accommodate loads imposed by construction on the Premises; provided, however, Concessionaires shall not be required to make any improvements necessary to correct any current deficiency in the condition of the .Pier, and, further, that improvements required of Concessionaires shall assume the Pier is in. good condition and repair. Such improvement or reinforcement of the Pier shall also be designed to minimize the need for future maintenance and /or replacement of piles and other elements of the Pier and to make practical such maintenance or replacement when necessary. The design of required improvements and the structure on the Premises shall also take into account the need for periodic maintenance of the Pier under and adjacent to Premises. Concessionaires shall retain a qualified consultant, experienced in marine construction, to prepare an analysis and recommendations for the above improvements and reinforcements to the Pier. The Public Works Director shall approve the consultant to be utilized for this work prior to retention. All costs for the structural analysis, design and construction shall be borne by Concessionaires. (3) Handrail and Fixtures. A handrail shall be constructed around the southerly end of the Pier where the deck widens and along both sides of the southerly 50 feet of the Pier where the deck is narrow. City may elect to construct this portion of the handrail and, in such event, Concessionaires agree to reimburse City for the cost thereof. Concessionaires agree to reimburse City for the cost of construction in an amount not to exceed Three Thousand Dollars ($3,000.00). Design and construction of the handrail shall be approved in advance by the Public Works Department. B. Time. Concessionaires shall commence construction of required improvements within sixty (60) days of the Effective Date, and shall complete same within one hundred eighty (180) days of the effective date. An extension of time may be granted by the City, in writing, upon receipt of a written request for an extension from Concessionaires. Concessionaires shall open the -3- �J concession for business within three hundred (300) days of the Effective Date of this Agreement unless a written extension of time has been granted by the City Manager. Concessionaires may close off, and prevent public access to, the southerly end of the Pier where the deck widens during construction of required improvements. It is the intent of the City and Concessionaires to minimize the time during which the Premises is closed to the public. C. Required Approvals. Concessionaires shall, in the construction of required improvements, or additional alterations, use only first class material and complete construction in a good and workmanlike manner. The Building Director and the Public Works Director shall approve all required improvements and additional alterations if constructed in conformance with applicable ordinances, codes, rules or regulations and in conformance with the recommendations of any consultant retained pursuant to this Agreement. If, during the term of this Agreement, any alteration, addition or change to the Premises, or any portion thereof, is required by the change in any ordinance, policy, regulation or rule, adopted subsequent to the effective date of this Agreement, the same shall be made by Concessionaires at their sole cost and expense. D. Additional Alterations. Concessionaires may, during the course of constructing required improvements and /or renovating or reconstructing the structure on the Premises, replace and relocate the fish cleaning sinks, with the prior approval of the Public Works Director, and replace or provide new lighting fixtures with the prior approval of the Public Works Director and Utilities Director. Subject to obtaining all required governmental permits and authorizations, Concessionaires shall have the right to make nonstructural alterations to the interior of any building located upon the Premises, provided that the same, when complete, are of a character so as not to adversely affect the value of the improvements or the Premises. Concessionaires shall not make or permit any structural or exterior alterations, additions, improvement or signage to be made to or upon the Premises without first obtaining the written consent of City which shall not unreasonably be withheld. Any alterations, additions or improvements made by Concessionaires shall be diligently constructed, at no cost or expense to City, in a good and workmanlike manner according to and in conformity with any laws, rules and regulations of all governmental bodies and agencies, and in compliance with the requirements applicable to the original renovation of the Premises. At least twenty (20) days prior to Concessionaires placing any materials upon the Premises or causing any labor or work on, or construction of, any alterations, additions, improvements or repairs having a cost in excess of TWENTY THOUSAND DOLLARS ($20,000.00) to be performed, Concessionaires shall deliver to City notification thereof specifying the nature and location of the intended work and the expected date of commencement thereof. All construction performed by, or on behalf of, Concessionaires shall be at their sole cost and expense. -4- �i I E. Mechanics' Liens. Concessionaires agree that they will pay, or cause to be paid, all costs and expenses in any way related to the construction of required improvements or other work done on the Premises and Concessionaires will keep the Premises free and clear of all mechanic's liens or other liens on account of work done by or for Concessionaires. City and its representatives shall have the right to post, and keep posted on the Premises, such notices as City may deem necessary for the protection of its interest in the Premises. 5. UTILITIES A. Water Service. City water is available to the buildings on the Pier. Concessionaires shall be entitled to water service under the same terms as any other water user of the City and shall pay the same fees, rate or rates as any other user. If, as a result of the construction of required improvements or other work done to the Premises, water transmission facilities need to be improved Concessionaires may request City to make such improve- ments at the Concessionaires' expense. B. Sewer Service. Sewer service is presently not available to the Pier. Concessionaires, as part of the construction of required improvements or renovation of the Premises, and at their expense, shall obtain Public Works Department approval of, and construct, sewer service and facilities for the Premises. Concessionaires shall provide, and maintain at their sole cost and expense, any appurtenant equipment for sewage disposal required by the Orange County Health Department. C. Refuse Service. City will provide garbage and refuse service to the Pier. Concessionaire shall provide, maintain, and utilize trash compactors in the operation of the Concession. Conces- sionaires shall provide a refuse storage bin of sufficient size to accommodate the needs of the Concession and the refuse pickup schedule of the City. D. Gas Service. No commercial gas is available on the Pier. Concessionaires may use bottled gas or may request the City to have a gas line constructed on the Pier at the Concessionaires' expense. E. Miscellaneous. Concessionaires shall make arrangements for such other utility services as are necessary for the operation of the Concession and shall promptly pay all charges for utilities when due. 6. USE OF THE PREMISES. A. General. Lessee shall not use any part of the Premises or Pier that is not specifically depicted in Exhibits B and C with- out the prior written consent of the City. -5- ' t Concessionaires. understand that the volume of business and the quantity of food, beverages and service to be sold to the public are subject to fluctuation and depend upon the season, the weather and other factors beyond the control of City or Concessionaires. Concessionaires agree to supply the demand as it arises and to maintain adequate labor, food, beverages and equipment to do so. Concessionaires further agree to use their best effort to upgrade and encourage business and public use of the Pier. All operations and activities of Concessionaires, as well as the operations and activities of its agents, em- ployees, or representatives, shall be conducted in compliance with all governmental statutes, ordinances, orders, laws, rules and regulations, and requirements applicable to the Premises or to the use of the Premises. B. Hours of Operation. Concessionaires shall be open for business from 10:00 A.M. to 6:00 P.M., or longer: (1) each day. during the period from June 15th to September 30th; (2) each day during those periods specified as school vacation by the Governing Board of the Newport -Mesa Unified School District; and (3) each day during legal holidays as determined by federal, state or local governments. Different dates and hours may be fixed by Concessionaires with the prior approval of the City. Concessionaires shall use their best efforts to remain open, weather and other conditions permitting, consistent with their obligation to supply demand for food service and bait sales. City reserves the right to restrict nighttime hours of operation in the event Concessionaires' use of the Premises adversely affects the nearby residential neighborhood. C. Prohibitions. City reserves the right display, sale or rental of any machine, i finds objectionable or beyond the scope necessary by City for proper service includes, but is not limited to, the prohibit vending machines of all kinds music or any other noise or sound. products sold shall be of high quality, quality deemed satisfactory by City shall this Agreement. to prohibit the use, tem or article which it of merchandise deemed to the public. This right to restrict or and machines producing All food and beverage and failure to maintain be a material breach of Concessionaires shall not do anything, or permit anything to be done, in or about the Premises, nor bring or keep anything in or around the Premises, which will in any way obstruct or interfere with the rights of visitors to the Pier, or injure or annoy them., or use the Premises or allow it to be used, for any unlawful purpose, nor shall Concessionaires cause, maintain or permit any nuisance in, on or about the Premises. D. Parking and Deliveries. Concessionaires shall not be allowed to park any vehicle on the Pier. Vendors serving the concession may drive vehicles on the Pier. The City will not provide parking spaces for the Concessionaires or their employees. Blue stickers for preferred parking in the City- operated parking lots are available to the Concessionaires and their employees at the standard cost. Vehicles operating on the Pier shall be limited to a maximum gross weight of 10,000 pounds and a maximum axle weight of 8,000 pounds. If construction materials delivery vehicles exceed Concessionaires shall be responsible permanent reinforcing to the Pier su loads without damage to the Pier. responsible for repair of any damage the Premises. E. Rates and Signs. equipment or construction this weight limitation, for providing temporary or fficient to accommodate the Concessionaires shall be caused by vehicles serving Concessionaires shall post rates and prices on the Pier at such places as may be designated by City. Concession- aires shall not place or allow any signs, placards, or advertis- ing matter to be placed or maintained on, or attached to, the buildings or elsewhere on said Pier without the prior written consent of City, which shall not be unreasonably withheld. Such business signs shall be placed, maintained and attached in such manner as City prescribes prior to placement. Concessionaires 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. Concessionaires shall indemnify, defend 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. F. Independent Contractor City shall have no interest in the operation of the restaurant, takeout or bait concessions. It is understood and agreed that Concessionaires operate the restaurant, take -out restaurant, and bait concessions as independent contractors. G. Alcoholic Beverages Concessionaires shall have ther right to seek a license from the Alcoholic Beverage Control Board granting the right to sell beer and wine on Premises. In the event that Concessionaires obtain such a license, Concessionaires shall be entitled to sell beer and wine only within the confines of the restaurant. Concessionaires shall comply with all of the rules and regulations of the Alcoholic Beverage Control Board and comply with all of the terms and conditions of any license granted by that Board. Concessionaires shall take all steps necessary to ensure that no alcoholic beverages leave the Premises or are dispensed through any take -out window. Conces- sionaires shall strictly supervise all sale of beer and wine to ensure that there is no excessive consumption of alcohol on Premises. In the event the City determines Concessionaires have failed to comply with the provisions of this subparagraph or determines that there is evidence of a substantial and continual increase in alcohol - related criminal incidents in and around the Pier that result directly from the sale of alcoholic beverages by Concessionaires, then, for each of the first three of such failure to comply and /or an increase in alcohol - related criminal incidents, Concessionaires shall, upon ten days' written notice from City, cease to sell alcoholic beverages for a period of thirty (30) days from the date specified in the notice. Upon the fourth incidence of Concessionaires' failure to comply with the provisions of this subparagraph and /or a determination of a substantial and continual increase in alcohol- related criminal incidents, City shall give written notice to Concessionaires of its intention to amend the terms of this Agreement to prohibit the sale of alcoholic beverages. At -7- the conclusion of the ten (10) day period this Agreement shall be deemed amended such that the sale of alcoholic beverages by Concessionaires is prohibited. Concessionaires understand and agree that the City is empowered, pursuant to this Agreement, to prohibit Concessionaires from selling or dispensing alcoholic beverages, notwithstanding the fact that Concessionaires may have a license or permit issued by the Alcoholic Beverage Control Board which permits the sale of beer and wine. Concessionaires waive, and give up, any right they may have to contend that the sale of alcoholic beverages is under the exclusive jurisdiction and control of the Alcoholic Beverage Control Board, or other state agency, and Concessionaires shall not make such claim or contention in any administrative or legal proceeding arising out of, or in any way related, to the provisions of this subsection 6(G). Prior to exercising its right to prohibit sales of alcoholic beverages, the City shall afford the Concessionaires a hearing before the City Council to allow Concessionaires to present evidence defending their desire to serve alcoholic bever- ages. The decision of the City Council shall be final. H. Right of First Refusal. City agrees, for the benefit of Concessionaires, not to enter .into a lease or concession agreement for the use of public property owned by City and located within a one hundred (100) foot radius of the boundaries of the Pier, for restaurant purposes or the service of food and beverages, unless City has first notified Concessionaires of the proposed restaurant use and Concessionaires have failed to agree within 30 days of written notice to operate the proposed restaurant on the same terms as those proposed. 7, COMPENSATION TO CITY. As partial consideration for City, Concessionaires shall pay monthly provided in this Section. The obligation to pay ren sixtieth day after the concession is paragraph 4B. Rent shall be due on the each and every month. A. Monthly Rent. the rights granted by and percentage rent as t shall commence on the open as provided in twentieth (20th) day of Concessionaires shall pay monthly rent which shall be computed as follows: (1) The fixed monthly rent shall be $1,000.00 per month subject to adjustment as provided below. (2) The monthly rent shall be subject to adjust- ment, as of July 1, of the year following the Effective Date and again on July 1st of every fourth year during the initial and any extended term of this Agreement. In no case shall the adjusted monthly payment be less than the current monthly payment. The adjustment shall be in accordance with the cumulative monthly percentage increase, if any, in the consumer price index (all urban consumers all items) for the Los. Angeles, Long Beach, Anaheim, California area published and released by the Department of Labor, Bureau of Labor Statistics ( "CPI ") for the preceeding four years, except for the initial adjustment which will be based upon the increase from the date on which this agreement is signed. WE r In the event no such index is issued or published within one year previous to an adjustment date or the bureau ceases to publish index figures, then any similar index published by any other branch or department of the U. S. government shall be used. If none is published, then another index. generally recognized as authoritative shall be substituted by agreement. (3) Monthly Rent month between the commencement first full calendar month within paid by Concessionaires to City of monthly rent due hereunder. for any fractional part of any date and the first date of the the Term shall be prorated, and along with the first full month (4) City shall place all funds received as Monthly Rent in an In Lieu Parking Fund Account to be used, at its discretion, to provide automobile parking. B. Percentage Rent. In addition to the Monthly Rent specified above, Concessionaire shall pay to City a sum equal to five percent (5 %) of Concessionaires' Gross Sales during each month after the obligation to pay rent commences ( "Percentage Rent "). (1) Gross Sales. The term "Gross Sales" as used in this Agreement shall be construed to mean: ( i ) the entire amount of the actual sales price, whether wholesale or retail, and whether wholly or partly for cash or on credit or in exchange for any other product, com- modity, service, commercial paper or forbearance, of all sales of merchandise and all charges made by Concessionaires or its employees or others acting on its behalf for the rendition of services of any kind whatsoever, made from or upon the Premises; (ii) all other receipts of all business conducted in, at or from the Premises, including all deposits not refunded to purchasers, proceeds, receipts or any revenue derived whatsoever from the use of Premises by or for any television, radio, movie, studio, photograph promoter or any other such acti- vity; (iii) orders taken in or from the Premises although said orders may be filled elsewhere, and sales by any sublessee in or from the Premises, and all without credit to Lessee for uncollected or uncollectible credit accounts; (iv) gross receipts of all coin - operated devices which may be placed in the Premises by Lessee or under any rent concession, percentage or other arrangement including, without limitation, such devices as pinball machines, vending machines, video games and similar devices (but excluding revenue from telephone that is collected by a public utility), except that nothing herein shall be construed as City's consent to the use of same in the Premises; and (v) all other revenues or receipts generated by or arising from the use of the Premises. All sales originally made in, at or for the Premises shall be considered as made and completed therein, even though the payment of the account may be transferred to some other office of Lessee for collection, or although delivery of merchandise sold in, at or from the Premises may be made from a place other than the Premises. -9- 6 (2) Exclusion from Gross Sales. There shall be excluded from Gross Sales: (i) any sums collected and paid out for any sales tax or tax based upon the sale or sales of merchandise and required by law, whether now or hereafter in force, to be paid by Concessionaires or collected from its customers, to the extent that such taxes have been added to exchange of merchandise and included in the Gross Sales price; (ii) the transfer or exchange of merchandise between the stores or businesses of Concessionaires, if any, where such transfers or exchanges of merchandise are made solely for the convenient operation of a business owned and operated by Concessionaires or any member of Concessionaire's family and not for the purpose of consummating a prior sale made in, at or from the Premises or for the purpose of depriving City of the benefit of a sale which otherwise would be made in, at or from the Premises; (iii) the amount of returns to shippers or manufacturers; and (iv) the amount of any cash or credit refund made upon any sale where the merchandise sold or some part there- of is thereafter returned by the purchaser. Each sale upon installment or credit shall be treated as a sale for the full price in the month during which such sale shall be made, irrespe- ctive of the time when Concessionaires shall receive payment (whether in full or partial) from its customers. (3) Method of Payment. On or before the twentieth day of each calendar month after the date on which the obligation to pay rent commences, Lessee shall submit an itemized statement of Lessee's Gross Sales for the preceding calendar month and the computation of Percentage Rent due City. Percentage rent based upon gross sales made during the first fractional month, after the date on which the obligation to pay rent commences, shall be added to and paid with the first full month's rent. Notwithstanding the above, the Percentage Rent due City for the last calendar month of the term, or fraction thereof, shall be due and paid on the date the term expires or terminates. (4) Sales and Charges. All sales and charges shall be recorded by means of cash registers which display to the customers the amount of the transactions certifying the amounts recorded. The register shall be equipped with devices which log -in daily sales totals, and which shall record on tapes the transaction numbers and sales details. At the end of each day the tape will record the total sales for that day and Concessionaires will verify the total gross sales each day by signing his or her name to the tape. C. Yearly Reconciliation of Rent. Within fifteen (15) days of the end of each calendar year during the Term of this Agreement, Concessionaires shall submit to City an itemized statement of Gross Sales, Monthly Payment and Percentage Payment due City during the preceding year that has been certified to be correct by an accountant and an itemization and computation of the Monthly Payment and Percentage Payment actually paid to City during the -10- preceding year. Within thirty (30) days after receipt of Conces- sionaires' certified yearly statement, City shall furnish to Concessionaires a written statement ( "Reconciliation ") reconciling the amount of Monthly Payment and Percentage Payment paid by Concessionaires for each quarter during the prior Lease Year with the yearly rent due therefor. In the event that the Reconciliation shows that additional Percentage Payment is due from Concessionaires, Concessionaires shall pay the amount due within ten (10) days of the receipt of the Reconciliation. In the event that the Reconciliation shows that a credit is due Concessionaires, such amount shall be credited against the next sums becoming due from Concessionaires hereunder or in the event of expiration or termination of the Term, the amount due shall be promptly returned to Concessionaires. D. Late Charges. Concessionaires hereby acknowledge that late payment by Concessionaires to City of rent, or other sums due, will cause City to incur costs not contemplated by this Agreement, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on City by terms of any obligations covering the Premises. Accordingly, if any installment of rent or any other sum due from Concessionaires is not received by City or City's designee within ten (10) days after such amount is due, then, without any requirement for notice to Concessionaires, Concessionaires shall pay to City a late charge equal to 7% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs City will incur by reason of any late payment. Acceptance of any late payment or late charge by City shall in no event constitute a waiver of Concessionaires' default with respect to such payment, nor prevent City from exercising any of the other rights and remedies granted hereunder. 8. MAINTENANCE AND REPAIR. A. City to Maintain Pier. Except as otherwise provided in Section 17, of Agreement, City shall maintain, in good condition and repair, and at City's expense, the piles, caps and related support members of the Pier on which the Premises are located and the walkway and public area located immediately adjacent to the Premises. City reserves the right to enter upon the Premises if necessary for the performance of its obligations hereunder. City agrees that any such entry shall, when feasible, be in a manner designed to minimize interference with Concessionaires' business. City shall not be responsible or liable to Concessionaires for interruption or reduction of Concessionaires' business in any way related to City's performance of its obligations hereunder. City shall have no responsibility or obligation of any nature to repair, maintain or improve any other portion of the Premises or surrounding property. B. Concessionaires to Maintain Premises. Concessionaires shall maintain in good condition and repair, at Concessionaires' expense, all portions of the Premises and all .improvements erected, installed or otherwise made by Concessionaires. Concessionaires shall make any and all necessary repairs to, or replace if necessary, any equipment, -11- structures or other physical improvements on the Premises in order to comply with any regulations, laws or ordinances of the State of California, County of Orange, the City or other govern- mental body. Concessionaires hereby expressly waive any and all right or privilege under statute or otherwise to require that repairs to the Premises be performed by City, or at City's expense. Concessionaires shall keep the southerly 80 feet of the Pier (the area where the deck widens), including all benches and areas set aside for fish cleaning, and the interior /exterior of the Premises, clean and sanitary and free from rubbish, debris and garbage of any kind at all times. If any exterior or interior painting or repair is required and Concessionaires fail or refuse to so paint or repair after thirty days' prior written notice specifying items of maintenance or the painting or repair required, City shall cause the painting or repair to be done at the expense of Concessionaires. Concessionaires shall reimburse City for all costs and expense incurred within thirty (30) days after being billed therefor by the City. In the event of an emergency, City may immediately enter the Premises to remedy an unsafe, unclean, unwholesome or unsanitary condition and charge the cost to Concessionaires. City shall be notified by Concesssionaires of such emergency as soon as reasonably possible. 9. PROHIBITION AGAINST TRANSFER. This Agreement shall not be sold, assigned, trans- ferred, mortgaged, pledged or hypothecated by Concessionaires without the prior written consent of City, nor shall Concession - aires 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; provided, however, the City shall permit Concessionaires to encumber their interest in the Premises for financing purposes provided no interests of the City in the Premises is in any way subject to, or affected by, any such lien or encumbrance. Any attempted assignment, transfer, mortgage, encumbrance or subletting without such consent shall be void and constitute a breach of this Agreement. In the event Concessionaires desire to assign or sublet their interest in this Agreement to a person or entity, Concessionaires shall submit in writing to City (1) the name of the proposed subtenant or assignee; (ii) the nature of the pro- posed assignee's or subtenant's business and experience with same; (iii) the proposed sublease or assignment; and (iv) such financial and other information as City may reasonably request concerning the proposed subtenant or assignee. City agrees not to unreasonably withhold its consent to an assignment or sub- letting provided that the proposed assignee or subtenant has suitable financial strength, experience and character for opera- tion and control of the Premises. If an entity succeeding to Concessionaires' interest hereunder is deemed a public corporation under the then current guidelines of the California Corporations Commissioner or is an -12- Concessionaires' obligation to maintain includes, but is not limited to, the exterior walls and roof, interior partitions of the building, window frames, doors, interior and exterior painting, and repair and replacement of windows in the building. The exterior color scheme and signs on or about the Premises shall be subject to the prior approval of the City Manager. If any exterior or interior painting or repair is required and Concessionaires fail or refuse to so paint or repair after thirty days' prior written notice specifying items of maintenance or the painting or repair required, City shall cause the painting or repair to be done at the expense of Concessionaires. Concessionaires shall reimburse City for all costs and expense incurred within thirty (30) days after being billed therefor by the City. In the event of an emergency, City may immediately enter the Premises to remedy an unsafe, unclean, unwholesome or unsanitary condition and charge the cost to Concessionaires. City shall be notified by Concesssionaires of such emergency as soon as reasonably possible. 9. PROHIBITION AGAINST TRANSFER. This Agreement shall not be sold, assigned, trans- ferred, mortgaged, pledged or hypothecated by Concessionaires without the prior written consent of City, nor shall Concession - aires 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; provided, however, the City shall permit Concessionaires to encumber their interest in the Premises for financing purposes provided no interests of the City in the Premises is in any way subject to, or affected by, any such lien or encumbrance. Any attempted assignment, transfer, mortgage, encumbrance or subletting without such consent shall be void and constitute a breach of this Agreement. In the event Concessionaires desire to assign or sublet their interest in this Agreement to a person or entity, Concessionaires shall submit in writing to City (1) the name of the proposed subtenant or assignee; (ii) the nature of the pro- posed assignee's or subtenant's business and experience with same; (iii) the proposed sublease or assignment; and (iv) such financial and other information as City may reasonably request concerning the proposed subtenant or assignee. City agrees not to unreasonably withhold its consent to an assignment or sub- letting provided that the proposed assignee or subtenant has suitable financial strength, experience and character for opera- tion and control of the Premises. If an entity succeeding to Concessionaires' interest hereunder is deemed a public corporation under the then current guidelines of the California Corporations Commissioner or is an -12- r unincorporated association or partnership, the transfer, assign- ment or hypothecation of any stock or interest in such corpo- ration, association or partnership in the aggregate of more than fifty percent (50 %) shall be deemed an assignment within the meaning of provisions of this Section. City's consent to assignment shall not relieve Concessionaires from their obligations or liabilities under this Agreement nor act as a waiver of the requirement that such consent be obtained to any subsequent assignment or sublease. In the event Concessionaires request the consent of City, or City's consent is required for a proposed assignment or subletting of the Premises, then Concessionaires shall pay City's reasonable attorneys' fees incurred in connection therewith, such attorneys' fees not to exceed FIVE HUNDRED DOLLARS ($500.00) for each such request. 10. EQUIPMENT AND FURNISHINGS. . The improvements made to the structure on the Premises by Concessionaires shall immediately become property of the City upon termination or expiration of this Agreement. Notwithstanding the foregoing, all trade fixtures, equipment and signs installed by Concessionaires shall be and remain the property of Concessionaires and shall be removeable at any time during the term of this Agreement or immediately upon the termination or expiration of this Agreement so long as Concessionaires shall not be in default under the terms hereof. The removal of any such fixtures, equipment and signs shall be at Concessionaires' sole expense and Concessionaires shall repair any damage or injury to the Premises to any building or structure located thereon occasioned by the installation or removal thereof. In the event Concessionaires fail to remove any fixture or equipment within sixty (60) days from the date on which this Agreement terminates or expires, such fixtures or equipment shall be deemed abandoned, shall become the property of the City and the City shall have the full power and authority to control, use or dispose of same. In the event Concessionaires fail, all equipment and materials remaining shall be deemed abandoned and shall become the property of City, with full power and authority to control, use or dispose of same. The removal of any such fixtures, equipment and signs shall be at Concessionaires' sole expense and Concessionaires shall repair any damage or injury to the Premises or any building or structure occasioned by the installation or removal thereof. Upon expiration of this Agreement or any extension thereof, or upon earlier termination, Concessionaires shall surrender, the Premises in good condition and repair, reasonable wear and use excepted. 11. TAXES. Concessionaire shall pay all wages or salaries and all federal, state, and local taxes or contributions imposed or required under the Unemployment Insurance, Social Security, Income Tax, and Worker's Compensation laws, or under other laws respecting Concessionaires' employees engaged in the performance of Concessionaires' obligations hereunder, and shall indemnify, defend and hold City harmless with respect to any such obligation. -13- This Agreement may create a possessory interest in public property which is subject to taxation. In the event such interest is created, Concessionaire shall pay any and all taxes levied on such interest. Concessionaire shall pay any and all taxes upon per- sonal property and improvements belonging to Concessionaire based, in any way, upon Concessionaires' use of the Premises. 12. INSURANCE. It is agreed that Concessionaires shall maintain in force at all times subsequent to the effective date of this Agreement all policies of insurance required' by this Agreement, and that said policies shall be secured from a good and responsi- ble company or companies, acceptable to City, and authorized as an insurance carrier in the State of California. Concessionaires shall maintain the following insurance coverage: A. Liability Insurance. The general liability coverage shall provide the following minimum limits: Bodily Injury $250,000 each person $500,000 each occurrence $500,000 aggregate Property Damage $100,000 each occurrence $250,000 aggregate A combined single limit policy with aggregate limits in the amount of $1,000,000 will be considered equivalent to the required minimum limits. The policy shall provide liability coverage for all occurrences on the Premises, including the sale of food, beverage or other product or merchandise. B. Worker's Compensation. All employees of the Concessionaires must be included under such policy in an amount and with coverage sufficient to meet all requirements of the California Labor Code. C. Property Insurance. Concessionaires shall obtain and keep in force during the term of this Agreement a policy or policies of insur- ance covering loss or damage to the Premises, and covering loss or damage to Concessionaires' fixtures, equipment, improvements and personal property ( "Personal Property ") in the amount of at least 100% of the full replacement value thereof, as the same may exist from time to time, against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief. Each year during the term of this Agreement, Concessionaires shall provide City with appropriate amended insurance endorsement which reflects the current full replacement value of the Premises and the full replacement value of Concessionaires' Personal Property. D. Builder's Risk Insurance. Before commencement of any construction or demolition, Concessionaires shall procure and shall keep in force -14- 0 0 until completion and acceptance of work, "all risks" builder's risk insurance including vandalism and malicious mischief, covering improvements in place and all material and equipment at the jobsite furnished under contract, but excluding contractor's, subcontractor's and construction manager's tools and equipment and property owned by contractor's or subcontractor's employees, with limits in accordance with project value. E. Boiler Unusual Hazards and Other_ Insurance. Concessionaires shall procure and keep in force, in coverage satisfactory to City: (1) Boiler and machinery insurance if at any time from time to time such equipment is located on the Premises. (2) If Concessionaires cormtit, permit or cause the conduct of any activity or the bringing or operation of any equipment on or about the Premises creating unusual hazards, Concessionaires shall, promptly on demand from City, procure and maintain in force, during such activity or operation, insurance sufficient to cover the risks represented thereby. City's demand for unusual hazard insurance shall not constitute a waiver of City's right, to demand the removal, cessation or abatement of such activity or operation. F. Business Interruption Insurance. Concessionaire shall provide and keep in force during the term of this Agreement, business interruption insurance insuring that monthly rent, and all insurance premiums and taxes, shall be paid for a period of at least six (6) months. G. Subroeation Waiver. Concessionaires and City all rights of recovery against the employees, agents and representatives or damage to such waiving party or its of others under its control, where such under any insurance policy, whether Agreement, in force at the time of such H. Failure to Secure. each hereby waive any and other, or against the of the other, for loss of property or the property loss or damage is insured or not required by this loss or damage. If Concessionaires should fail to secure or maintain the foregoing insurance, City shall, after ten (10) days' notice to do so, be permitted to obtain such insurance in the Concessionaires' name or as an agent of the Concessionaires. Concessionaires shall pay all costs of the insurance premiums to City within ten days of notice specifying the sums due. Concessionaires shall pay City interest on paid insurance premiums at the maximum rate permitted by law computed from the date premiums are paid. Additional Insured. City, its City Council, boards and officers, agents, servants, and employees shall be additional insured under the policies of insurance this Agreement. Any other insurance held by City required to contribute towa.rd any loss or expense c4 insurance provided by this policy. -15- commissions, named as an required by shall not be )vered by the 7 J. Notice of Cancellation. All policies of insurance required by this Para- graph shall contain a provision which obligates the carrier to give City at least thirty (30) days' written notice prior to cancellation or amendment of the policy. 13. SAFETY REQUIREMENTS. All work performed under this Agreement shall be per- formed in a manner which maximizes public safety and meets or exceeds, state and /or local safety rules or regulations. Concessionaires shall maintain hazards to persons and /or property resulting 14. COMPLIANCES. Concessionaires shall conduct all dance with all laws and comply with all fec laws, ordinances, rules and regulations business, in effect or hereinafter adopted. 15. PERMITS AND LICENSES. Premises free of from its operations. operations in accor- leral, state or local applicable to such Concessionaires shall obtain, and maintain during the term of this Agreement, all appropriate licenses, permits and certificates that may be required in connection with the operation of its facility and for the provision of services here- under and such licenses, permits, and such certificates shall be obtained at the sole cost of Concessionaires. 16. HOLD HARMLESS. Concessionaires shall indemnify, and hold harmless, City, and its officers, employees, agents and representatives, from any and all claims, liabilities, loss, damage or expenses which arise out of, or in any way related to, the following: (a) the use of the premises by Concessionaires; (b) any act or omission of Concessionaires, or their officers, agents, employees, representatives or contractors; and (c) any work or services performed on or to the premises or any material, equipment or supplies furnished to the premises by Concessionaires or their officers, employees, agents, representatives or contractors. The duty of Concessionaires to indemnify, defend and hold harmless pursuant to this Section shall include, without limitation, claims, liability, losses, damages or expenses arising out of the death of, or injury to, any person or persons including Concessionaires, or their officers, employees, agents, representatives or contractors, and any damage to, or destruction of, any property, including that owned by Concessionaires or their officers, employees, agents, representatives or contractors. The duty of Concessionaires to indemnify, defend and hold harmless pursuant to this paragraph shall not extend to any claim, liability, loss, damage or expense that results from the death or injury of any person, or the damage or destruction of any property, that is caused by the negligent act or omission, intentional act, or fraudulent act of City, or any of its officers, employees, agents or representatives. Except as provided in Paragraph 17, and except as to claims filed by Concessionaires, or their employees, -16- representatives or agents, the City shall indemnify and hold Concessionaires harmless from any claim, liability, loss or expense proximately caused by the negligent act or omission of the City or its employees, officers or agents. 17. DAMAGE OR DESTRUCTION TO PIER OR PREMISES. An overriding consideration for City's approval of this Agreement is the commitment by Concessionaires that City shall not be liable for any loss of income, trade, business, goodwill or property damage that is in any way related to the destruction of, damage to, structural instability of, or closure of the Pier, and further, that City shall not be required to make any repairs to, or reconstruct any portion of, the Pier in the event of damage, destruction or unstability which requires closure. This commitment is significant because, given the investment by Concessionaires and the potential success of the restaurant operation, the liability of the City could, in the event of such damage, destruction or closure, exceed the revenue derived from this Agreement and, further, that the cost of repair or reconstruction may be significant. Concessionaires, given the significant investment required by this Agreement, the potential success of the restaurant operation, and the significant rent required by this Agreement, have a substantial interest in acquiring the right to make repairs,to the Pier in the event of a closure caused by damage, destruction or instability, and in the event City is unwilling or unable to make such repairs. Concessionaires also has a significant interest in obtaining the right to promptly terminate its obligation to pay rent in the event the Pier is closed due to damage, destruction or instability and Concessionaire is unable or unwilling to make necessary repairs. The provisions of this Section shall be interpreted and construed in a manner which is consistent with the interests of the parties as expressed above. A. Damage or Destruction to Pier Structure. (1) City reserves the right to close the Pier, or any portion thereof, at any time during the term of this Agreement if, in the opinion of the Public Works Director, the Pier is unsafe for use due to damage, destruction, instability, weather conditions, or other reason. In the event of such closure, City may grant Concessionaires access to said Premises, for the limited purposes of moving material or securing Premises and upon such condition as may fully protect the City from any liability for death, personal injury or property damage stemming from Concessionaires' activities. (2) If City closes the Pier, or any portion thereof, for any reason, or any structure or improvement thereon, or property of Concessionaires is damaged or destroyed as a result of damage to, or the destruction or instability of the Pier, City shall not be liable to pay, and Concessionaires shall not be entitled to receive, from the City, compensation for any loss or damage sustained by Concessionaires that is in any way related to the closure of the Pier or the damage or destruction or instability of the Pier, including, without limitation, any loss of income, trade, business, goodwill or damage to Premises or fixtures or equipment located therein. (3) In the event City closes the Pier, or some portion thereof, pursuant to the rights reserved in this paragraph, city shall not be obligated to reopen the Pier, nor -17- 0 9 shall City be obligated to repair, reconstruct or rebuild the Pier or any portion thereof. In the event of damage to the premises or property of Concessionaires caused by damage to, or destruction or instability of, the Pier, City shall not be obligated to repair or reconstruct the Premises or any structure or improvement thereon, nor shall City be obligated to repair or replace any property or equipment of Concessionaires. (4) In the event City closes the Pier pursuant to this section, Concessionaires shall have the right to make repairs to the Pier, at their sole cost and expense, if: (a) Concessionaires have received written permission from City to make such repairs; and (b) Concessionaires have submitted, to the Public Works Director, a report from a qualified consultant or consultants, experienced in marine construction, describing the repairs necessary to make the Pier safe for public use, together with plans and specifications to be used in making the repairs; and (c) The Public Works Director has approved the report, plans and specifications submitted by Concessionaires; and (d) All repairs are made in conformance with the report, plans and specifications submitted by Concession- aires. (5) In the event the Pier is closed for a period of ninety (90) consecutive days, or longer, during the term of this Agreement, Concessionaires may terminate this Agreement upon thirty (30) days' written notice of their election to terminate. (6) In the event Concessionaires elect to terminate this Agreement due to closure of the Pier for ninety or more consecutive days, and the Pier is made safe for public use within five years from the date of termination, City shall, prior to offering use of the Premises to another party, extend to Concessionaires the right to use the Premises on the same terms and conditions as exist in this Agreement, provided, however, monthly rent shall be adjusted to reflect any increase in the CPI between the date of termination and the date on which the offer is extended, Concessionaires shall have no duty to make required improvements, and Concessionaires shall provide all necessary policies of insurance, obtain all necessary permits and approvals, and commence operation within one hundred fifty (150) days from the date on which Concessionaires accept City's offer. Concessionaires shall have thirty (30) days within wh.ich to accept the offer of a new Concession Agreement. (7) In the event the Pier is closed pursuant to this section or if the Premises are rendered unusable owing to damage or destruction beyond the control of the Concessionaires, Concessionaires shall not be obligated to pay Monthly Rent for such period. B. Damake Near End of Term. If at any time during the last twelve (12) months of the Term or extended term of this Agreement, there is damage to the Premises to the extent that the cost of repair is fifty (50%) percent or more of the full insur- able value of the Premises and the repairing and rebuilding of the Premises would exceed ninety (90) days, Concessionaires may terminate this Agreement as of the date of occurrence of such damage by giving written notice to City of Concessionaires' elec- tion to do so within thirty (30) days after the date of occurrence of such damage. -18- C. Damage or Destruction to Premises. (1) In the event of damage or destruction to the Premises, other than that caused by City as provided in subsection (2), Concessionaires shall commence repairs within thirty (30) days and thereafter proceed with due diligence to complete repairs. All repair work shall be done at the sole cost and expense of Concessionaires. Concessionaires shall be responsible for obtaining all necessary permits prior to proceeding with required repairs. (2) In the event of damage to, or destruction of, the Premises resulting from the acts or omissions of City, or its employees, officers, agents, representatives, or contractors, which occur in the course of maintaining the Pier, the Premises shall be repaired or restored by City, and at its expense. City shall obtain all necessary permits and approvals, shall commence repair or restoration within thirty (30) days from the date of damage, and shall diligently pursue repairs to completion. Monthly rent shall be abated in the proportion that the untenantable portion of the Premises bears to the entire Premise. Except for the abatement in rent, Concessionaires shall not be entitled to receive any form of compensation or consideration for any loss or damage caused, or alleged to be caused, by the damage to, or destruction of the Premises, including, without limitation, loss of income, loss of business, loss of goodwill, or damage to fixtures or equipment. (3) If, at any time during the last twelve (12) months of the term, or any extended term, of this Agreement, •the Premises are damaged to the extent that the cost to repair is fifty (50 %) percent or more of the full replacement value of the Premises, or repair of the Premises would exceed ninety (90) days, Concessionaires may terminate this Agreement as of the date of the occurrence by giving written to City of their election to do so within thirty (30) days after the occurrence. Notwithstanding the provisions of subsection 16C.(2) if, during the last twelve (12) months of the term of any extended term of this Lease, there is damage to the Premises to the extent that the cost of repair is fifty percent (50%) or more of the full replacement value of the Premises, and the damages caused or alleged to be caused, by the act or omission of the City or its officers, employees, agents, representatives or contractors, City shall have no duty to repair or rebuild the Premises, but rather Concessionaires may elect to repair or rebuild the Premises or. terminate this Agreement as of the date of damage by giving written notice to the City of their election to do so within thirty (30) days from the date of damage. 18. SUBORDINATION, This Agreement is and shall be subordinate to any encumbrance now of record or recorded by City after the date of this Agreement affecting the Premises. Such subordination is effective without any further act of Concessionaires. Concessionaires shall from time to time on request from City execute and deliver any documents or instru- ments that may be required by a lender to effectuate any subordination. If Concessionaires fail to execute and deliver any such documents, or instruments, Concessionares irrevocably constitute and appoint City as Concessionaires' special attorney - in -fact to execute and deliver any such documents or instruments. -19- • • 19. DEFAULTS. The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by Concessionaires: A. The vacating or abandonment of the Premises by Concessionaires. B. The failure by Concessionaires to make any payment required by this Agreement, as and when due, when such failure shall continue for a period of three (3) business days after written notice thereof from City to Concessionaires. C. Except as specified in subsection B, the failure by Concessionaires to observe or perform any of the covenants, conditions or provisions of this Agreement to be observed or performed by Concessionaires where such failure shall continue for a period of ten (10) days after written notice thereof from City to Concessionaires; provided, however, that if the nature of Concessionaires' default is such that more than ten (10) days are reasonably. required for its cure, then Concessionaires shall not be deemed to be in default if Concessionaires commenced such cure within said ten (10) day period and thereafter diligently prose- cutes such cure to completion. D. The making by Concessionaires of any general arrangement or assignment for the benefit of creditors. E. Concessionaires become a "debtor" as defined in 11 U.S.C. Section 101 or any successor statute thereto (unless, in the case of a petition filed against Concessionaires, the same is dismissed within 60 days). F. The appointment of a trustee or receiver to take possession of substantially all of Concessionaires' assets located at the Premises or of Concessionaires' interest in this Agreement, where such seizure is not discharged within thirty (30) days. G. The attachment, execution or the judicial seizure of substantially all of Concessionaires' assets located at the Premises or of Concessionaires' interest in this Agreement, where such seizure is not discharged within thirty (30) days. H. The discovery by City that any financial statement given to City by Concessionaires was materially false. 20. DEFAULT BY CITY. City shall not be in default unless City fails to perform obligations required of City within a reasonable time, but in no event later than thirty (30) days after written notice by Concessionaires to City specifying the nature of the alleged failure to perform such obligations. If the nature of City's obligation is such that more than thirty (30) days are required for performance then City shall not be in default if City commences performance within such thirty (30) day period and thereafter diligently prosecutes the same to completion. 21. CONDEMNATI A. In the event proceedings are taken pursuant to an exercise of the power of eminent domain by any lawful authority to condemn or otherwise acquire in excess of ten percent (10%) of the floor area within the Premises and in the further event that -20- 0 the Premises will no longer be suitable for the permitted uses hereunder as a result of such taking, Concessionaires shall have the option, by written notice to City at any time prior to the date of the taking by the condemning authority, to terminate this Agreement effective as of the date of possession. In the event of such termination, rent shall be prorated to the date of termination and any unearned rent shall be refunded to Conces- sionaires. Concessionaires shall not grant a right of entry to any condemnor without the written consent of City. B. Should Concessionaires not elect to so terminate this Agreement, or should any such taking not be sufficient to allow such option to terminate, this Agreement shall terminate as to the portion of the Premises taken upon the date which posses- sion of said portion is taken, but this Agreement shall continue in force and effect as to the remainder of the Premises and Concessionaires, at its own cost and expense, shall promptly restore the remaining portions of the improvements as nearly comparable as practicable to the unit existing just prior to such taking. Concessionaires shall, in the event of a taking of any portion of the Premises, be entitled to a reduction in the Monthly Payment payable pursuant to Section 7A above thereafter required to be paid, such that the reduced Monthly Payment will be in the same proportion to the Monthly Payment theretofore required to be paid that the fair rental value of the Premises following such a taking and restoration and repair by City bears to the fair market value of the Premises immediately prior to such taking. C. In the event that an award is made for an entire or partial taking or for damage to the Premises or any interest therein in any action in direct or inverse condemnation or in the event of a taking under the power of eminent domain, the parties hereto agree that their respective rights to the award or compensation paid shall be as follows: (1) City shall be entitled to that portion of the award received for the taking of the real property within the Premises, including all buildings and other improvements to which City is entitled on expiration or termination of the Agreement. (2) Concessionaires shall be entitled to any award that may be made for the taking of or injury to Concessionaires' business and profits or on account of any cost of loss Concessionaires or its subtenants may sustain in the removal of its or their merchandise, fixtures, equipment and furnishings from the Premises. (3) Any severance damages and interest payable on the total award shall be divided between City and Concessionaires in the same ratio as are the awards granted to them pursuant to the other provisions of this paragraph. (4) Concessionaires shall not be entitled to any portion of the award on the basis that Concessionaires' interest in this Agreement has a bonus value (i.e., that the fair rental value of the Premises for all or any portion of the remainder of the term hereof exceeds the rental reserved under this Agreement for such period). 22. NOTICES. All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and shall be deemed served when delivered personally, or seventy -two (72) hours after the deposit thereof in the United States mail, -21- postage prepaid, registered or certified, addressed as herein- after provided. All notices, demands, requests or approvals from Concessionaires to City shall be addressed to: City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Attention: City Manager All notices, demands, requests or approvals from the City to Concessionaires shall be addressed to: with copies to: HEG Enterprises Miners Landing 1301 Alaskan Way Seattle, WA 98101 Wolfgang and Erika Merting 2900 East So. Greenville Santa Ana, California 92704 23. PRODUCPION OF STATEMENT, RECORDS AND AUDIT. Concessionaires agree to make available for inspection by City at the Premises a full, permanent, and accurate set of books and records of all sales of merchandise and revenue derived from the conduct of business in, at or from the Premises from which Gross Sales can be determined and all supporting records, including all federal, state and local tax .returns. Concession- aires agree to furnish to City copies of its quarterly California sales and use tax returns at the time that each is filed with the State of California. City shall approve the method, manner and procedure for preparation and maintenance of the financial records pertaining to the Premises. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. Concessionaires further agree that it will keep, retain, and preserve for at least three (3) years all records, books, bankbooks, or duplicate deposit books, and other evidence of Gross Sales for such year. Concessionaires agree to install in the Premises a cash register, or registers, approved by City, equipped with a cumulative total, and sealed and maintained in a manner approved by City. Concessionaires agree to register, or cause to be registered upon such cash register, or registers, all amounts required to be included in Gross Sales. City shall have the right, upon reasonable notice and at City's expense, to inspect and audit Concessionaires' books and records and to make transcripts therefrom to verify the payment due City. Such audit may be made at any time during normal business hours without prior notice by City. If City's audit discloses an error of five percent (DO or more in Gross Sales as reported by Concessionaires which results in an underpayment in the percentage rent owed by Concessionaires, and City's audit is correct, Concessionaires shall pay the cost of City's audit computed on the basis of the direct payroll of the -22- audit staff completing the audit and audit report. Concessionaires shall immediately pay all deficiencies to City. City shall keep any information gained from such statements, inspection, or audit confidential and shall not dis- close it other than to carry out the purposes of this Agreement, except that City shall be permitted to divulge the contents of any statements in connection with any financing arrangements or sale of City's interest in the Premises. 24. INTEREST ON PAST -DUE OBLIGATIONS. Except as expressly herein provided, any amount due to City not paid when due shall bear interest at the maximum rate then allowable by law from the date due. Payment of such interest shall not excuse or cure any default by Concessionaires under this Agreement, provided, however, that interest shall not be payable on late charges incurred by Concessionaires or on any amounts upon which late charges are paid by Concessionaires. 25. WAIVERS. No waiver by City of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Concessionaires of the same or any other provision. City's consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of City's consent to or approval of any subsequent act by Concessionaires. The acceptance of rent hereunder by City shall not be a waiver of any preceding breach by Concessionaires of any provision hereof, other than the failure of Concessionaires to pay the particular rent so accepted, regardless of City's knowledge of such preceding breach at the time of acceptance of such rent. 26. RECORDING. Either City or Concessionaires shall, upon request of the other, execute, acknowledge and deliver to the other a "short form" memorandum of this Agreement for recording purposes. 27..CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed exclu- sive, but shall, wherever possible, be cumulative with all other remedies at law or in equity. 28. SECURITY MEASURES. Concessionaires hereby acknowledge that the rental payable to City hereunder does not include the cost of guard service or other security measures and that City shall have no obligation whatsoever to provide same. Concessionaires assume all responsibility for the protection of Concessionaires, its employees and agents,.invitees, customers, and property from acts of third parties. 29. HOLDOVER. Any holding over by Concessionaires after the expira- tion or any termination of this Agreement shall not constitute a renewal or extension of the term of this Agreement. 30. COSTS OF LITIGATION. If any legal action is necessary to enforce any provi- sion hereof or for damages by reason of an alleged breach of any -23- provisions of this Agreement, t h entitled to reasonable costs and fees, in such action or proceeding. e prevailing party shall be expenses, including attorneys' 31. ADMINISTRATION OF AGREEMENT. For the purpose of the administration of this Agree- ment by City, "City" shall mean the City Manager and any officer and employee of the City authorized by him to administer to con- tract. If Concessionaires are dissatisfied with any action or decision of the City Manager, Concessionaires may take the matter to the City Council for review. The decision by the City Council shall be final. 32. CAPTIONS FOR CONVENIENCE. The captions herein are for convenience and reference only and are not a part of this Agreement and do not in any way limit, define, or amplify the terms and provisions hereof. 33. GOVERNING LAW. This Agreement has been made and shall be construed and interpreted in accordance with the laws of the State of Cali- fornia. 34. MERGER OF NEGOTIATIONS. This Agreement represents the full and complete under- standing of every kind and 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 hereof. In the event this Concession Agreement does not become effective on or before January 1, 1987, the Old Concession Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written. AP VE A4 Q t.0 2 ' ity Attorn WOLF G f q ART I NG q�r -i..pp A tuja_ x,Mk ERIKA MERTING -24- CONCESSIONAIRES: HEG ENTERPRISES, a Califo is corporation By yl � J"�rF. "".'.. 1 § - c}. l r. v.:.. • . �, .. M' ... r '.... ' �.'aCi..M.�.'i��L.�t- _F»!.�Y�+� _ 'M17�� ?lT+e ^.� *a'P., +'Ma r � 'd vw" j 'C All i ` t i I I i 4 _ S EXHIBIT A _ / O :r i r iJ II Qi Q t I ' :.� it .�z ease ° • ¢0 m Cyr L ti It '�- S v _ S EXHIBIT A _ V ~ Z U a u r m , W S S v' 0 o -iL w i,l :17 ,I i :r i $ iJ II Qi Q t I :.� it ¢0 m Cyr L ie W � S V ~ Z U a u r m , W S S v' 0 o -iL w i,l :17 ,I i :r i •Y iJ II :.� it S t 17r —1V J 1 J fir: � .• � � pp V I a �I. Y hghg V EXHIBIT 3 0 U U W m r }s:: n 0 Hr0 V �e W W Z QIr W� �aa r� 0 J IH< 10tl1 - tc; LU n. `•;. W d Ld cc 0 U U W m n 0 l Z W Z cc Li r� .- _0. M.M, .., .rnyy gyFa.. ^,9«: ^�+4'. wr^a. ^..... ....+ .: ... -.:. .: ...:, - a .,q.::w,nr ygiyyogq IFOM r. A W tZqr ! W• a of M . +� N 3 3Xj Z f~ qpF �wM w F E cc H UGC° W � x w Ir x w � lil -- ... +�! m � 1 i S� S •f I 4 � �' t i� � ti �'" � � �� r y �.! r��rC•�' fan � r tiia a1' # Z Jw 1 fry i l.:. �� ": Mt"'r _• J Vl [ r • 1 f ? � j F • cc .21 0 0 • \y . i lMl- f I.• .. .. O E r� 0 co Y � L,1 y Y 4 I i 3 L co U w s E N Cq H Ga x W d W s i 3 L U s QUQ W m k a s i • I m W l r 3 O r .or, I W al Ul b I ra 0 r- ��� a N h `2• • t �Oy O 3 W ui z W ,140 r E H W H U r 3 O r .or, I W al Ul b I ra 0 r- ��� a N h `2• • t �Oy O 3 W ui z W ,140 J ' a v cc CO) LU C W E H W H U x x w ul 2 d O Q U. 2 W m H O a z J ' a v cc CO) LU C W NOTICE OF NEGATIVE NOTICE IS HEREBY GIVEN that a.Negative Declaration has been prepared by the City of Newport Beach in connection with the NEWPOIC PIER CONCESSION. The Negative Declaration states that the subject developnent will not result in a significant effect on the environment. It is the present intention of the City to accept the Negative Declaration and supporting documents. The City.encourages maters of the General Public to review and cammt on this. docaTentation. Copies of the Negative Declaration and supporting documents are available for public review and inspection at the City Manager's Office, City of Newport Beach, 3300 Newport Boulevard, Newport Beach, CA 92663, Phone (714)644 -3002. city nim- piste ution• LC,�i AN fiille U :. gapt. ins,:: � Du.plj - irz dV Bulietiin Board on NOTICE OF PUBLIC HEARING i- s hereby given that the Planning Commission of the City of Newport Beach will hold a c hear#fg\on the application of /� to a AMENDMENT PERMIT TENTATIVE TRACT G795-0ic7 J un r the require rats of the California Envif-onmental Quay • het. OTICE IS HEREBY P� GIVEN that a N! ativ Decla �tion has been /plrepared by the City of Newport Beach in connection with the yeve.� /The .Negative Declaration states that, the subject development will not result in a significant effect on the environment. It is the present intention of the City to accept the Negative Declaration and supporting documents. ^F — The City encourages members of the general public to review and comment on this documentation. Copies of the Negative a tion an4 ��upporting documents are available for public review and inspection at the �a'a���' ^ity of Newport Beach, 3300 Newport Boulevard, Newport Beach,,California, 92658 -8915 (714) 644 - TILE IS HEREBY FURR GIVEN that an iro tal Impact rt as been pr red in con ection with the apps' cation noted ove. It i the pr ent in ten 'on of the to accep the Environmental act ort and suppor 'n ocuments. The City encour es members of the general public t review and comment this documentation. Co ie of th Environme tal Impact Re rt supporting docume s ar available for li r ew and inspection at the P Depar nt, City o Newport Beach, 3300 Ne t Boule rd, Newport Beac Cal' , 92658-8915-4,7,14) 643225. TICE IS HEREB FURTHER GIVEN th all 'g�ificant environme teal erns for the proposed pr 'ect have ee addressed in rev'ousl fled enviro a ument, and that the City of N po Be ch tend us sal doc ant abo oted pr 'ect, and further that re a e no dditio 1 e onable altern tive it' ati measures at should be o de d i con unc on ith said project. Copi of the previou prepar environme tal ocum are av 'lable for ub rev' w ai inspection at th Pla ing Department, Cit Newport Bea 3300 Ne rt oulevard,\\�ewport Beach, Ca ornia, 92658 -8915 ( 4) - 3200. KNewpBouleva eby urther given t^eh hearing will be hel n the day hour 7:30 p.m. iambers of the Newp t Be City Hall, 3300 rd, ort Beacht which time an ace ny and all per s y appear d be hear information c l; /(7 4 -3200. er, Secretary, 1 ping Commission, ty of wpor t Beach NOTE: The es2Rense of this,,4otic�& is paid from a fi7�<g fee collected fro> the,,applicant. 9 0 Authorized to Publish AdverbsemenlS Of all kinds including public notices by Decree of me Superior Court of Orange County, California, Number A -6214, dated 29 September. 1961. and A- 24631. dated 11 June. 1963. STATE OF CALIFORNIA County of Orange o�a.a Yauu aavar+,r.q <ma.aa or iwa aaaaw,i ,a an �n r pam .nm is pca cowmn ,ram I am a Citizen of the United States and a resident of the County aforesaid; I am over the age of eighteen years. and not a party to or interested in the below entitled matter. I am a principal clerk of the Orange Coast DAILY PILOT, with which is combined the NEWS - PRESS, a newspaper of general circulation, printed and published In the City of Costa Mesa. County of Orange, State of California, and that a Notice of ! of which copy attached hereto Is a true and complete copy, was printed and published in the Costa Mesa, Newport Beach, Huntington Beach, Fountain Valley, Irvine, the South Coast communities and Laguna Beach Issues of said newspaper for ' time consecutive weeks to wit the issue(s) of 198 - 198 198_ 198 198_ I declare, under penalty of perjury, that the foregoing is true and correct. Executed on I _ r 14 198 _' at Costa M sa,� alifornia. Signature PUBLIC NOTICE NOTICE OF NEGATIVE DECLARATION NOTICE IS HEREBY GIVEN that a Negelive Dec - IarallOn has been prepared by the City of Newport Beach In connection with tiro NEWPORT PIER CON- CESSION, The Negative Declaration states that the Subject development will not result In a significant effect on the environment. It la the pre9ent intention of the City la accept the Negative Dec- documents. The City en. courages members of the General Public to review and comment on this documen. tation. Copies of the Negative Declaration and supporting documents are available for public review and Inspection at the City Manager's Office, City of Ken pollen, Eaacutive Assistant. City of tlawport Sash Published Orange Go", Deily Pilot November 8. 1985 F -514 i RIWT AND COMMERCIAL PROPEI& AGENDA -* BY THE CITY COUNCIL v CITY OF NEWPORT BEACH, CITY OF NEWPORT BEACH b CALIF. 9 June 12, 1985 JUN 1719 S� _ JUN 24 1 °85 RECENf� ITY Bob Wynn Ty CITY CLERK �ity Manager APPROVVIn 30Newport Blvd. !; N Newport Beach, CA 92663 RE: 19ewport Beach Concession Dear Mr. Wynn, It has come to my attention that the lease for the Newport Beach Pier Concession becomes available on December 31, 1987. I am extremely sincere in wanting to aquire this lease when it becomes available. It has been a desire of mine for many years to see the end of the pier developed. Rubys, on the Balboa Pier, is close to the same lease and concept I will be proposing to the city. Whatever I need to do to aquire this lease, be it bonds, permits or whatever it may be, please inform me of what I need to do. Also, any information regarding hearings or meetings, please notify my office. Any questions, feel free to call me at 673 -9500. Sincerely, Rick Lawren e The Lawrence Company cc, City Council rl /jl 2104 W. OCEAN FRONT NEWPORT BEACH, CA 92663 714- 645 -6511 In. consideration, of. the ;renewaI premium stated below -:and the policy fee (fully earned, per location), it understood and agreed that this policy, incorporating any changes listed below, is,extended fora peri year: RIC1'26C1 7 1 u1 i.'a ;Pt E At" MEIVT -, [" �'it; x t.Ar7.7 n1D,bP, S =�iftT. ,iS :HERFLIY 12 CON it- NTS iS "N± , y, f j4,A N > To, 5,i 01-1 ,r ' . SECTION I — PROPERTY COVERAGE LIMITS OF LIABILITY COINSURANCE PERCENTAGE ' ITEM NO. DESCRIPTION OF COVERAGE LOCATION NO. LOCATION NO. $ L . $ 90x/0 -.'1'. ' On Buildings and Structures on Premises.. v QUO" 90% 2. On Personal Property on Premises NIL 3. On Loss of Earnings -25% 6 L A N r E T — 4. On Exterior Glass— Maximum $50 per panel$250 per loss - - IL — 5. On Outdoor Signs it T L 100% 6. On Accounts Receivables ,NIL _ - 7, On Food Spoilage n — 2 i6Lt9 9. ., :' r; r T o Kilt�. 10. .. SECTION it — LIABILITY COVERAGE LIMIT OF LIABILITY Cov. C - Bodily Injury and Property Damage Liability $ ` i r'',t': each occurance $ O,7; fj` '_7 ' - aggregate Cov:�D — Premises Medical Payments : $ - l: each person $ 100 "C' , � each. accident Add .(:ov. (Specify):. `J: f' { i!_ $ i .. i, L' . $ )I . . .. 1N3 U': INK Kipley & Associates Insurance Services, Inc,. P.O.Box 1130 Yorha Linda, Ca., 92686 DECLARATIONS NAMjft!dUfiEED MMAILBWAADDRESS ng s erman s txal.Ley ZqUIU reenv' e E an a AnS, Ea. NAMED INSURED IS: & Individual ❑ Partnership ❑ Corporation 01 ❑ INS U RAN C PANY OF NORTH AMERICA ❑ PACIFIC EMERS INSURANCE COMPANY ❑ INA UNDERWRITERS INSURANCE COMPANY Orange 304867 POLICY NUMBER RWPDO 5654 44 0 RENEWED OR IN PLACE OF COVERED LOCATION 01 Newport Pier Newport Beac POLICY PERIOD: When coverage begins .6 -14 -83 When coverage ends 6 -14-84 ❑ Mortgagee ❑ Loss payee Premium j payment plan Annual Total premium due hen coverage begins$'•' COVERAGES COVERAGE LIMITS A. REAL PROPERTY ❑ Basic ❑ Comprehensive $ COINSURANCE % 0 AGREED VALUE B. PERSONAL PROPERTY ❑ Basic KI Comprehensive $ 85,000 COINSURANCCflj(]Xi 0 AGREED VALUE I� REPLACEMENT COST C. LOSS OF INCOME ❑ Basic Comprehensive Full Year D. EXTRA EXPENSE ❑ Basic KI Comprehensive $ 50_000 E. PERSONAL PROPERTY OFF YOUR PREMISES $1001)00 OPTION I. SUPPLEMENTARY VALUABLE PAPERS &RECORDS $ '5 000 OPTION 2. SUPPLEMENTARY ACCOUNTS RECEIVABLE. Highest Monthly Amount $ Monthly Average $ $ 5,0120 . OPTION 3. MONEY AND SECURITIES S z0buo On Premises $ Z r Off Premises OPTION 4. PERSONAL PROPERTY' —CRIME Included COMPREHENSIVE CRIME ENDORSEMENT EMPLOYEE DISHONESTY (Commercial Blanket Coverage only) $ COMPREHENSIVE GLASS ENDORSEMENT) All Building Glass ❑ Not Covered ❑ See Description of Building Glass SUPPLEMENTAL EXTERIOR SIGNS ENDORSEMENT S '+ PROPERTY DEDUCTIBLE ❑ $100 13 $250 ❑. $500 ❑ $ SECTION ll. LIABILITY - - $ 500,000 Each Occurrence $5013r000 Aggregate MEDICAL COVERAGE B 1 000 Each Person $5()01,0013 Each Accident MISCELLANEOUS LIABILITY COVERAGE - ❑ Board of Governors ❑ Liquor Law $ $ ADDITIONAL INSURED— LIABILITY City of Newpar Newport schilCe. Beach, 300 Newport Blvd.. 92663 ENDORSEMENTS: Policy forms and endorsements attached when coverage begins (if any) KK-51-14, KK- 6L23,KK -6L19, KK -5L95, KK -51-72, KK- 51-160 KK -51-31 Countersigned at Bre.s, Ca. Authorized Aifent K K -61-23 JAN 2fi1991 By tha 4.;10 COUNVi IL CITY OF NEWPORT BEACH TO: FROM:' SUBJECT: Background CITY OF NEWPORT BEACH — Ii D' OFFICE OF THE CITY MANAGER January 26, 1981 MAYOR AND CITY COUNCIL CITY COUNCIL AGENDA NO,H -8(c) Assistant to the City Manager PROPOSED MODIFICATION OF THE NEWPORT PIER CONCESSION BUILDING In May, 1977 the City Council approved an Agreement with.W. Merting relative to the operation of a food, live bait and tackle concession on the Newport Pier. The Agreement is in effect until December 31, 1987. Proposed Modification Mr. Merting, in an effort to improve the concession building and enhance service to the public, is proposing to construct a small "gift shop" area as an addition to the facility. The dimensions of the proposed addition and its relationship to the building are shown on the attached sketch. Mr. Merting proposes to sell items such as suntan lotion, sunglasses and postcards from the shop. These types of items are permitted for sale under the terms of the contract. Additionally, of course, the City in accordance with the contract terms, would receive a percentage of the gross receipts from sales made. Construction of the addition would also, according to Mr. Merting, remove a current attractive nuisance situation which is created by a.sheltered.open space between the outside stairwell and the exterior wall of the con- cession building (see sketch). Mr. Merting is not requesting any City funding participation in this project, wh ch will cost a total of approximately $3,000.. Conclusion This matter has been placed on the agenda for Council information. Should there be no questions or comments, Mr. Merting shall be advised that he may proceed, subject to receiving appropriate review and approvals from the Planning and Building Departments. TO: MAYOR AND CITY COUNCIL - Page Two C;E ' J p As tan to The City Manager GJB /jmb Attachmen : Diagram xc: City Manager . 1Pe19oS`wc,� =t�i�f' S�oprt _' !K/ I +r..�_ X1`3 � .{ � I - ..�) � I I Y 7� 'i•.i- r.. 11 ' y _ - -. _ - Ali M, 9 ILI u I . � r 25 • ..h, . 1 hwA'n+•.m'..•^N AN.�NFhN.•�..., y.n.�i.•MncM1tNYr`n�..(h. nl:l f 9 ENDORSEMEOT ' ATTACHED TO AND FORMING PART OF —� ENDORSEMENT DATE - EFFECTIVE AS OF O 12:01 AM STANDARD TIME POLICY NUMBER ENDORSEMENT NO. 0 12:00 NOON STANDARD TIME aggregate Cov. D— Premises Medical Payments o RPB 30045 2 NAMED INSURED ADDITIONAL PREMIUM RETURN PREMIUM r GALLEY 41 NffANNU P $ Is Policy Expiration Date: 6 -12 -81 MEMORANDUM OF INSURANCE THIS IS TO CERTIFY that the insurance hereinafter described has been effected as follows: SECTION N— LIABILITY COVERAGE LIMIT OF LIABILITY Cov. C— Bodily Injury and Property Damage Liability $ 5000000, each occurrence aggregate Cov. D— Premises Medical Payments $ 500, each person $ each accident Addl. Cov. (Specify) IM OWNED F11I1L1 $500,000. PERSCW INJURY $ 500,000, FIRE LEGAL $ 25,000. , (Includes Premises — Products and Parking Area Liability) ADDITIONAL INSURED ENDORSEMENT (Designated Premises Only) Name of Additional Insured CTW OR NB7P= BEACH C/O CITY MMJMR NEWPOFU BEACH, Interest in Premises Location of Premises #1 PIER, =M=F' 17A It is agreed that the "Persons Insured" provision is amended to include as an insured the person or organization designated above, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises designated above leased to the named insured, and subject to the following additional exclusions: The insurance does not apply: 1. to any occurrence which takes place after the named insured ceases to be a tenant in said premises; 2. to structural alterations, newconstruction or demolition operations performed by or on behalf of the person or organization - designated above. In the event of cancelation of such policy or policies, the Company agrees to make every effort to notify the party to whom this certificate is addressed, 10 days prior to such cancelation. Notice in writing mailed to or delivered at the address of such party as herein stated shall be sufficient notice. Failure on the part of the Company to give such notice shall not, however, impose any liability on its part. COMPANY FRE 7T`7CEWITY CO. Countersigned Authorized Representative RIC 110 (Rev, 8/75) R.I.C. INS'.' CQ7ERAL AGENCY of i 7 -16 -80 vs �. ro CITY OF NEWPORT BEACH OFFICE OF THE CITY 14ANAGER (714) 640 -2153 June 6, 1980 Mr. Wolfgang Merting 2900 -E South.Greenville Santa Ana, CA 92704 Dear Mr. Merting: RE: NEWPORT PIER CONCESSION INSURANCE COVERAGE According to our official records, your Certificate of Insurance for the Newport Pier Concession is due to expire on June 12, 1980. Please insure that appropriate documentation updating your coverage is filed promptly with the City Clerk's Office, 3300 Newport Boulevard, Newport Beach. Your prompt attention to this matter is greatly appreciated. If you have any questions concerning this matter, please do not hesitate to contact me. SAicerely. _ the City Manager CAty Clerk City Hall • 3300 Newport Boulevard, Newport Beach, California 92663 ocmv .. oe w.m cw.+nunw, Lnurunraa tSUSINtSS,AU%Akit YULIUY _.. �.. � Pdo m8Ea - RPR- 30045 t: Names leseradaad P.O.. Add raas reaslner.TO Cg V.sswl hem I IB INDIVIDUAL 0PAR.TNERSHIP - ax.wdxw,oe. B7xd. OR'TING, DMA: FISHERMANa S GALLEY O CORPORATION 0 JOINT VENTIlHE #1 NEWPORT PIER OTHER NEWPORT BEACH, CA.' Item 2. Poiiey Period- 1201 A.M. Standard Time at location of designated Premises From 6 -12 -79 '. Ta 6-12 -80 I Rem 4. Daig�gtd prsaifasa: Ohw-awlr+m. ftawaabwo �Pe^aY ar Premises Nat OUT TAM RE No. z .. - . .. - . ` - CLASS IA No. 3 ?mil GERERAL AGENCY: PRwJCER: ECONOMY INSURANCE AGENCY #4247 R.I.C. lams. g8>nyl. agency 1617 E. 17TH ST., STE -18- 747 W. KATELLA "E. CITY OF ORANGE, CA 92887 SANTA ANA, CAL 92701 hem 5: CS Ispraided with resmaltodes" ledpremises and with respectso two Coverages VWkr�ofpmpeny for which aspeolk Ink of53wyissliom, suW to aO o191e urns of this policy including trams and endorsement made a part h veof. ' SECiIUNL— PABPERncD I UMITB OF LIABILITY CO-INSURANCE REM FDRME ATFACR� LOCATION N& LOGTION ND. PBNSURA C N0. DESCMPTIBN OF COVERAGE TO AND FORANNB ATTS� $NIL $ 90% t. On Bruldnxi and Sauehaes on Premises. SEE INOE% END 30,000 90% 2 On Pwww Property on Premises Y.IC 275 (3/78 4$000 NIL & On Lass of Earnings — 25% .NP 100A(7/ 77) COVERED — 4. On Esmda Glass — Maximum $50 per Pane ww per loss RIC 222 (8171 NIL — & On Morey d Sevolbes (Umtieol Form) ' RIC 223 (8/71 NIL 100% On On Ouww Signs Acwwrts Race vabfes -RIC 110 (8/751 NIL L91o6 NIL & IM Food Spoilage - SEE ENDT. #3L. NnL a . NIL 19. NII. 11. 11MON 11— LIABILITY COVERAGE LIMIT OF MAGA TY Cov . C— Bodily byuy and Property Damage Liebi9ty S _50010-00 each Om S 500 000 a99 ie Cov. D— Premises Memcal Paymems $ 250 each Faison $ 1.01000 each academ Addl. Cos (SpeciW NON —OWNED AUTO SPERSONAL INJ. _ $ FIRE LEGAL $5003,000 r 5002000 100000 kem & Aterlpgae VAMP. TNgIIRRn - INameandAddress) fNmT.Seclionl_LossDsdu"v$ 100. AppTleswbban aggregate aebnxwronesoiS 100. [SnEnderaeeenlila. Ric. 6030 tIC11 75) Item &TbsTobilAdaaaPradtmllsrtweissowr PLUS $40. FULLY EARNED POLICY FEE TOTAL $649.00 $609. and is payable $ 609.00 at hrception, and S, N/A at each anrdrersary. 0 NOT APPLICABLE UNLESS INDICATED BY AN X IN THE BOX AS "NOT APPLICABLE", THE PREMIUM FOR INSTALLMENTS SUBSEQUENT TO THE 11 ITIAL INSTALLMENT SHALL BE SUBJECT TO ADJUSTMENT ON THE BASIS OF THE RATES IN EFFECT AT EACH ANNIVERSAE GATE. Counlersignawe Date 6- 29 -79 —Tg Agency at ORANGE,CA. ed Represauaave IN CONSIDERATION OF THE PREMIUM, INSURANCE IS PROVIDED THE NAMED INSURED WITH RESPECT TO THE DESIGNATED PREMISES SHOWN IN ITEM 4 ABOVE h WITH RESPECT TO THOSE COVERAGES AND HINDS OF PROPERTY FOR WHICH A SPECIFIC LIMIT OF LIABILITY IS SHOWN, SUBJECT TO ALL OF THE TERMS OF It POLICY INCLUDING FORMS AND ENDORSEMENTS MADE A PART HEREOF. PCU 79 911-78) rremonz maemnE it om an HOME OFFICE — THE FREMONT B ILDING — LOS ANGELES, CALIFORNIA lit 1. M' I lts"ad and P.O. Address iNa svaai. Town• C.*. W" BILL HEATING, DBA: FISHERMANIS GALLEY 1#1 NEWPORT PIER NEWPORT BEACH, CA. DECLARATIONS - BUSINEWA.CKAGE POLICY POL ER-RM - 30045 Rem 3. IX INDIVIDUAL ❑ PARTNERSHIP ❑ CORPORATION ❑ JOINT VENTURE OTHER Item 2. Policy Period: 12:01 A.M. Standard Time at location of designated premises From 6 -12 -79 To 6 -12 -80 Rem 4. Designated premises: tEnw •sama-euma,Wxm u aowel Occupancy of Premises No.1 SAME TAKE OUT No.2 CLASS 1A No.3 NEW .... aenawN W %Mm GENERAL AGENCY: R.I.C. Ins, genel. agency PRODUCER: ECONOMY INSURANCE AGENCY #4247 1617 E. 17TH ST., STE -18 747 W. KATELLA AVE. CITY OF ORANGE, CA 92667 SANTA ANA, CA, 92701 Item 5: Insurance is provided with respect to designated premises and with respect to those coverages and kinds of property for which a specific limit of liability is shown, subject to all of the terms of this policy including forms . and endorsements made a pad hereof. SECTION I— PROPEW COVERAGE FORMS ATTACKED TO AND FORMING LIMITS OF LIABILITY CO- INSURANCE PERCENTAGE REM N0.' DESCRIPTION OF COVERAGE LOCATION NO. LOCATION NO. $NIL $ 90% 1. On Buildings and Structures on Promises PART OF TINS POLICY AT TIME OF ISSUE SEE INDEX END 30, OOO 90% 2. On Personal Property on Premises RIC 275 (3/78 ) 4;000 NIL 3. On Loss of Earnings — 25% MP 10OA(7/77) COVERED — 4. On Exterior Glass — Maximum $50 per pane /$250 per loss RIC 222 (8/71 NIL — S. On Money 8 Securities (limited Form) RIC 223 (8/71 Nita t00% 6. On Outdoor Signs RIC 110 (8/75 NIL — 7. On Accounts Receivables L9106 NIL — 8. On Food Spoilage SEE ENDT. #1. NIL 9. NIL 10. NIL 11. SECTION II — UABILFIY COVERAGE LIMIT OF LIABILITY Coy. C— Bodily Injury and Property Damage Liability $500,000 each occurrence $ 500,000 aggregate Gov. D— Promises Medical Payments $ 250 each person $ 10,000 each accident Addl. Cov. (Specify) NON —OWNED AUTO $PERSONAL INJ. $ FIRE LEGAL $500,000 500,000 109000 Item 6. Mortgagee _ _.. NAME TNSITRPD . (Name and Address) Item 7. Section l_ Less Dethtetibi4S 100. A feswithan 100. RIC 603(3(/75) ppi aggregate nth occurrence fSee EndarsesteM No. Aftbe I Item B. The Total Advance Preelamis.ENTEeBELOW, PLUS $40. FULLY EARNED POLICY FEE TOTAL $649.00 $609. and is payable $ &9.00 at inception, and $ N/A at each anniversary. ❑ NOT APPLICAB E UNLESS INDICATED BY AN X IN THE BOX AS "NOT APPLICABLE ", THE PREMIUM FOR INSTALLMENTS SUBSEQUENT TO THE IN- ITIAL INSTALLMENT SHALL BE SUBJECT TO ADJUSTMENT ON THE BASIS OF THE RATES IN EFFECT AT EACH ANNIVERSARY DATE. Countersignature Date6- 29 -79 —rg Agency at ORANGE,CA. zed Representative IN CONSIDERATION OF THE PREMIUM, INSURANCE IS PROVIDED THE NAMED INSURED WITH RESPECT TO THE DESIGNATED PREMISES SHOWN IN ITEM 4 ABOVE AND WITH RESPECT TO THOSE COVERAGES AND KINDS OF PROPERTY FOR WHICH A SPECIFIC LIMIT OF LIABILITY IS SHOWN, SUBJECT TO ALL OF THE TERMS OF THIS POLICY INCLUDING FORMS AND ENDORSEMENTS MADE A PART HEREOF. PCU 79 (11 -78) k��WpORr °$ CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER �[7FORN`A (714), 640 -2153 February 27, .1980 Mr. Wolfgang Merting 2900 East So. Greenville Santa Ana, CA 92704 . Dear Mr. Merting: SUBJECT: 'Lapse of Insurance - Newport Pier Concession. The City Clerk informs me that according to her records, your Certificate of Insurance associated with the above- referenced lease has lapsed. Please insure renewal of appropriate coverage and submit I a Certificate to the City Clerk, 3300 Newport Boulevard, Newport Beach, CA 92663. Thank you for attending to this request. cerely, GE BOLINT As sta t to the City Manager GJB /jmb CST Ci y Clerk City Half • 3300 Newport Boulevard, Newport Beach, California 92663 CERTIFICATE .URANCE ISSUED BY OR ALF OF g nsmia,I: Insurance Co. of the West INSURANCE COMPANY Wolfgang Mertin�& DBA: 'Fishermans 17th St. Pier Newport Beach, Erika Merting Galley Ca. RLLIAM ROBINSON & COMPANY INSURANCgg BROKERS 1401 Sou Oak Knoll Pasadena, California 91109 F1101116 4"70 Name and address for whom Certificate of Insurance is issued: - City of Newport Beach c/o City Manager 3300 Newport Blvd. Newport Beach, Ca. 92663 This is to certify that the Company designated above has issued to the Insured named herein the policies listed below and such policies apply with respect to the hazards and for the coverages and limits of liabil- ity indicated by specific entry herein, subject to all the terms„ conditions and exclusions in such policies. 3r) - -- - - - -. - The Company agrees to give. ays written notice to the holder of this Certificate of Insurance in the event of canoe / I Il' any policy or coverage listed above. Date: 4- 4— 7 8 e r No. GF 202 1 -73 ReCommended C A I A- I B A C Form ns!j. CCo a West ��° R ran a Company B Authorize epresentative - COVERAGES AND LIMITS OF LIABILITY TYPE OF INSURANCE POLICY NUMBER EFFECTIVE EXPIRATION Bodily Injury Liability ProDlrty Damage Liability DATE DATE Each Occurrence Ea. Occurrence Aggregate General Liability — Premises — Operations x PAK231832 „ 5 -27 -78 It - 5 -27 -79 it $ 500,000. r®mbi qd Sir ;0 g Lim .Escalators $ 000 1 000 $ ,000 Independent Contractors $ 000 $ ,000 $ ,000 Products — Completed x $ it 000 II if 11 $ ,06OAggreg. Operations $ ,000 $ - 000 Contractual —as described - belOw $ ,000 $ ,000 $ ,000 Automobile Liability — Each Person Each Occ. Each Dec. Agg. $ ,000 $ ,000 $ ,000 XXXX Owned Automobiles Hired Automobiles $ ,000 $ 002 $ 000 XXXX Non -Owned Automobiles $ ,000 $ ,000 $ ,000 XXXX Automobile Physical Damage - Comprehensive $ - Fire, Theft - $ Collision or Upset Actual Value Less $ Deductible Loss Payable to: - Compensation — Statutory Workmen's Compensation and Employers Liability Description and Location of Operations, Automobiles. Covered, Contracts, Additional Insured, Additional Coverages, at Additional Insured to:, City of Newport Beach 3300 Newport Blvd. [ �vFr4�La _ Newport Beach, Ca. 9266 3 $ A.PR 5 1278 s CITY OF NSIPORT MAO, CPU, . 3r) - -- - - - -. - The Company agrees to give. ays written notice to the holder of this Certificate of Insurance in the event of canoe / I Il' any policy or coverage listed above. Date: 4- 4— 7 8 e r No. GF 202 1 -73 ReCommended C A I A- I B A C Form ns!j. CCo a West ��° R ran a Company B Authorize epresentative City 11411 3300 W. Newport Blvd. , Area Code 714 DATE April 14, 1980 TO: FINANCE DIRECTOR .. . FROM: City Clerk SUVECT: Contract No.. .1901 Description of Contract .Newport Pier Conoession mxtension Authorized by Resolution No. 9753 , adopted on 3 -24 -80 Effective date of Contract April 111 1980 Contract with Wolfgang and Erika Martino Address 2900 -E .South Greenville Santa Ana, CA 92704 Amount of Contract see amtract • • CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER April 23, 1984 TO: MAYOR AND CITY COUNCIL FROM: Executive Assistant SUBJECT: VEHICLE PARKING - Newport Pier COUNCIL AGENDA ITEM N0. F -2(a) BY THE CITY COUNCIL CITY OF NEWPORT BEACH APR 23 1984 i Action: If desired, approve Resolution No. to authorize amendment to the Concession Agreement for the Newport Pier to allow an increase of parking on the Pier from one vehicle to two. The concessionaire who operates the Fisherman's Galley restaurant at the end of the Newport Pier has requested to be allowed to park two vehicles instead of one on the Pier. ANALYSIS: The request has been reviewed and approved on a trial basis by the Marine and Fire Departments. (see attached letters) The attached resolution allows for increase in the allowable number of vehicles on the Pier subject to unilateral revocation by the City. KENNETH J DELINO KJD : mm attachments NEWPORT BEACH FIRE DEPARTMENT April 5, 1984 TO: Ken Delino, Executive Assistant FROM: J. M. Reed, Fire Chief SUBJECT: Request for Additional vehicle on Newport Pier The request of the concessionnaire on the Newport Pier to increase the number of vehicles he is allowed to park on the pier from one to two is recommended for approval by this office. This approval should be granted on a trial basis and the concession- naire advised that any additional vehicles cannot be tolerated as congestion of vehicles can cause serious problems during an emergency: incident on the pier. J. M. REED Fire Chief JMR:rw CITY,OF NEWPORT BEACH MARINE DEPARTMENT • March 29, 1984 TO: KENNETH DELINO, EXECUTIVE ASSISTANT FROM: Kendall Jacobsen, Marine Department SUBJECT: PARKING ON NEWPORT PIER I have discussed the parking problem on Newport Pier with our staff and we would like to cooperate with Mr. Merting and increase the number of cars allowed to park at the end of the pier where his concession is located. This department feels.that no more than two cars should be allowed to park on the pier for safety reasons and only one car should be allowed on weekends and holidays during the summer season, June ist through September 30th. This system will be on a trial basis, subject to change if any problems arise. endall Jacob en, Marine Safety Chief 6epar nt larine J:ng 0 • RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY. OF NEWPORT BEACH AMENDING RESOLUTION NO. 9075 REGARDING CONCESSIONAIRE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND WOLFGANG AND ERIKA MERTING FOR A RESTAURANT LOCATED ON THE NEWPORT PIER. WHEREAS, on May 9, 1977, the City Council adopted Resolution No. 9075 which authorized the execution of a Concession Agreement between the City.o£ Newport Beach and Wolfgang and Erika Merting with regard to ..a restaurant located at the end of Newport Pier; and WHEREAS, the Concession Agreement allows Concession- &ire to park only one vehicle owned and operated by him at'any one time on the pier; and WHEREAS, Concessionaire has requested an amendment to the Concession Agreement which would allow him to park two veh- icles at any one time.on the.pier;,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 park two vehicles on the pier 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. 9075, insofar as that Resolution incorporated the terms and conditions of the Concession Agreement, is hereby amended to allow Concessionaire to park two vehicles owned or operated by him at any one time on the pier, subject to certain conditions and controls, all as set forth in the amendment to Concession Agreement, which is marked Exhibit "A" and incorporated herein as though fully set forth at length; and -1- 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 Con - cession Agreement on behalf of the City of Newport Beach. ADOPTED this _day of 1984. Mayor ATTEST: City Clerk -2- AM MMMT To CONCESSION A6iEiNser .. NEWPORT PIER THIS, AMERMIENT to Concession Agreement, am" and 'entered into this, -_dey of , 1984, by and between THE CITY or - NEWPORT - SSACH, a municipal. Corporation, hereinafter , referred to as "City ", and WOLFGANG AND ERIKA M MZMG, bereinafter referred to as - Concessionaire ", witnessetht NHSREAS, -City and Concessionaire entered into a .. -- Concession Agreement, dated May 31, 1977,. - whereby Concessionaire was given certain rights, to operate a' restaurant at the end of Newport Pier; and WHEREAS, the Concession agreement allows Concessionaire.. to park only one vehicle owned or operated by him at any one time . on the Newport Pier; and WHEREAS, Concessionaire has.re4uestsd'an amendment of this Agreement to allow Concessionaire to park two vehicles on the pier at any one time; and NHEREU, 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 park two vehicles on the.pisr at any one time so long as Concessionaire agrees to 'comply with the terms and conditions of this amendment. } NON, THEREFORE, the parties agree as follows: . Paragraph 8 -of the Concession Agreement, dated may. 31, 2977, ,*hall be amended to read as follows B. Parkina Restrictions: (a) Concessionaire agrees to park no more than two (2) vehicles owned or operated by bin or his employees at any one time on the pier for the purpose of serving . his business.. Said vehicles shall be parked on the pier adjaoeat to tbe,building.' c1. EiRXBLV A ! 1 1 • (b) Concessionaire agrees that all such vehicles owned or operated by him or his employees shall display on the windshield or other prominent location a Pier Parking Pass provided by the City Manager's office whenever parked on the Pier. (c) Concessionaire stipulates and agrees that this lease may be unilaterally amended by City to allow, at all times or during any time of the year, only one vehicle owned, and operated by the concessionaire or his employees to park on the Pier at any one time without a hearing or op- portunity 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. (d) Vendors and deliverymen serving the concession may drive vehicles on the Pier. (e) The City will not provide parking spaces for the concessionaire or his employees except for the two vehicles described in Section S(a) of this Agreement. . IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. ATTESTi City Clerk APPROVED AS TO FORM: City Attorney -2- CITY OF NEWPORT BEACH, a Municipal Corporation By Mayor CITY Sy .CONCESSIONAIRE RESOLUTION NO BY THE CITY COUNCIL CITY OF NEWPORT BEACH MMM&J A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AMENDING RESOLUTION NO. 9075 REGARDING CONCESSIONAIRE AGREEMENT BETWEEN THE CITY OF NEWPORT.BEACH AND WOLFGANG AND ERIKA MERTING FOR A RESTAURANT LOCATED ON THE NEWPORT PIER. WHEREAS, on May 9, 1977, the City Council adopted Resolution No. 9075 which authorized the execution of a Concession Agreement between the City of Newport Beach and Wolfgang and Erika Merting with regard to a restaurant located at the end of Newport Pier; and WHEREAS, the Concession Agreement allows Concession- aire to park only one vehicle owned and operated by him at any one time on the pier; and WHEREAS, Concessionaire has requested an amendment to the Concession Agreement which would allow him to park two veh- icles at any one time:on the:pier;;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 park two vehicles on the pier 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. 9075, insofar as that Resolution incorporated the terms and conditions of the Concession Agreement, is hereby amended to allow Concessionaire to park two vehicles owned or operated by him at any one time on the pier, subject to certain conditions and controls, all as set forth in the amendment to Concession Agreement, which is marked Exhibit "A" and incorporated herein as though fully set forth at length; and -1- 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 Con- cession Agreement on behalf of the City of Newport Beach. ADOPTED this day of ATTEST: City Clerk -2- Mayor . 1984. • 0 AMENDMENT TO CONCESSION AGREEMENT NEWPORT PIER THIS AMENDMENT to Concession Agreement, amde and entered into this day of 1984, by and between THE CITY OF NEWPORT BEACH, a Municipal Corporation, hereinafter referred to as "City ", and WOLFGANG AND ERIKA MERTING, hereinafter referred to as "Concessionaire ", witnesseth: WHEREAS, City and Concessionaire entered into a Concession Agreement, dated May 31, 1977, whereby Concessionaire was given certain rights to operate a restaurant at the end of Newport Pier; and WHEREAS, the Concession Agreement allows Concessionaire to park only one vehicle owned or operated by him at any one time on the Newport Pier; and WHEREAS, Concessionaire has requested an amendment of this Agreement to allow Concessionaire to park two vehicles on the pier at any one time; 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 park two vehicles on the pier at any one time so long as Concessionaire agrees to comply with the terms and conditions of this amendment. NOW, THEREFORE, the parties agree as follows: Paragraph 8 of the Concession Agreement, dated May 31, 1977, shall be amended to read as follows: 8. Parking Restrictions: (a) Concessionaire agrees to park no more than two (2) vehicles owned or operated by him or his employees at any one time on the pier for the purpose of serving his business. Said vehicles shall be parked on the pier adjacent to the building. -1- (b) Concessionaire agrees that all such vehicles owned or operated by him or his employees shall display on the windshield or other prominent location a Pier Parking Pass provided by the City Manager's office whenever parked on the Pier. (c) Concessionaire stipulates and agrees that this lease may be unilaterally amended by City to allow, at all times or during any time of the year, only one vehicle owned and operated by the concessionaire or his employees to park on the Pier at anyone time without a hearing or op- portunity 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. (d) Vendors and deliverymen serving the concession may drive vehicles on the Pier. (e) The City will not provide parking spaces for the concessionaire or his employees except for the two vehicles described in Section 8(a) of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as'of the day and year first above written. ATTEST: City Clerk APPROVED AS TO FORM: City Attorney -2- CITY OF NEWPORT BEACH, a Municipal Corporation 0 Mayor CITY CONCESSIONAIRE s AMENDMENT TO CONCESSION AGREEMENT FOR NEWPORT PIER THIS AGREEMENT, made and entered into this ll�zk day of 1980, by and between the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "City," and WOLFGANG AND ERIKA MERTING, husband and wife, hereinafter collectively referred to as "Concessionaire." W I T N E S S E T H: WHEREAS, on May 31, 1977, the City and Concessionaire entered into a Concession Agreement for the concession at the Newport Pier; and WHEREAS, the term of said Agreement ran from June 1, 1977, to December 31, 1982; and WHEREAS, on March 24, 1980, the City Council of the City of Newport Beach, at the request of Concessionaire, agreed to extend the term of the Agreement until December 31, 1987, and that the other provisions of the Agreement would remain in full force and effect, NOW, THEREFORE, in consideration of the foregoing, said Concession Agreement is hereby amended in the following particulars: 1. The term of the Agreement shall be in effect from June 1, 1977; until December 31, 1987, unless sooner terminated as provided in said Concession Agreement; 2. The mailing address of the Concessionaire shall be changed to read: Wolfgang and Erika Merting 2900 -E South Greenville Santa Ana, California 92704 . 4L 3. All other terms and conditions of said Concession Agreement, not inconsistent herewith, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. ATTEST: City Clerk FORM: CITY OF NEWPORT BEACH -2- lfg g Merting �— Erika Merting i CITY HRC /kv 4/4/80 CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER MAR 2 4 1980 March 24, 1980 By the CITY .COUNCIL CITY OF NiWPM BRACH TO: MAYOR AND CITY COUNCIL FROM: City Manager CITY COUNCIL ITEM NO, &12�) SUBJECT: PROPOSED EXTENSION OF THE NEWPORT PIER CONCESSION LEASE AGREEMENT Background On May 9, 1977, the City Council awarded a contract to Mr. and Mrs. W. Merting for the operation of a food, live bait, and tackle.concession on the Newport Pier. A copy of the concession agreement is attached.. The facility has been in operation since June 1977. The City contributed over $10,000 toward providing the build - ing with a 1,000 gallon sewage holding tank, refurbishing the exterior of the building, and providing electrical service. The Mertings spent over $30,000 upgrading the interior of the structure, installing equipment, and providing electrical service. In addition to initial construction costs, the Mertings expended $9,000 and the City contributed $3,500 toward the installation of a rooftop sundeck for the use of concession patrons. Finally, the Mertings invested $2,500 in an extension of the bait shop area to provide additional merchandising area and employee work space. According to the term of the contract, the Mertings are required to return to the.City a payment of $1,000 per month for the months of June and July and $1,500 per.month for the months.of August and September, plus 5.58 of each month's gross receipts throughout the year. The .following figures represent actual and estimated revenues associated with the concession to date: Fiscal Year Revenues 1977 -78 $ 8,917 (actual) 1978 -79 9,488 (actual) 1979 -80 12,000 (estimated) Proposed Extension of the Concession Lease Agreement The current term of the concession agreement is from June 1, 1977 until December 31, 1982. ! i TO: MAYOR AND CITY COUNCIL - Page Two Mr. and Mrs. Merting, the concessionaires, have requested that the City Council consider extending the term of the agreement a total of five years beyond the original expira- tion date until December 31, 1987. They are making the request at this time, rather than waiting until the end of the term, to allow for more - realistic cost forecasting and operational. planning. Other than the requested exten- sion, no other substantive changes in the agreement are being proposed at this time. Section 420 of the City Charter permits the Council to approve lease extensions of 25 years. It is staff's position that the Mertings have proven quite satisfactory in providing this service to the public. Addi- tionally, they are prompt in making the required rental pay- ments and, as discussed earlier, have demonstrated a commit- ment to upgrading the facility through the expenditure of their own time and monetary resources. Finally, it is felt that a five -year extension is reasonable under the current terms and conditions of the agreement. Recommendation In response to the request of the concessionaire, and in light of the information contained in this staff report, it is recommended that the City Council approve an extension of the Newport Pier concession lease agreement until December 31, 1987. ROBERT L. WYNN City Manager RLW /GJB /jmb Attachment • CONCESSION AGREEMENT. y NEWPORT PIER This,Agreement, made and entered into this day of May 1977, between the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "City" and WOLFGANG AND ERIKA MERTING, husband.and wife, .. hereinafter referred to as "Concessionaire" W. IT NES S ET H: WHEREAS; the City is the Owner and:is in possession. .. and control�of a certain pier -known as Newport Pier; located in the City of Newport Beach, which extends into and over the water of the Pacific Ocean, at the extension of McFadden Place, which pier is 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 concession on said pier be continued for the use and convenience of the public and.all.persons using.the pier for fishing and recreational.purposes; and . WHEREAS, the City Council desires that live bait be sold on the pier; and WHEREAS,.Concessiona.ire has made.a proposal to City, to operate and maintain the concession on the Newport Pier; and wHEREAS,the proposed arrangement is mutually.agreeable to City and the Concessionaire. - NOW, THEREFORE, in consideration of the payments hereinafter specified and.the faithful performance of the other covenants of this agreement.by Concessionaire, City hereby grants to Concessionaire a concession, privilege and right to operate lunch stands, live bait and tackle concessions on said pier subject to the following terms., covenants and conditions:. 5' �1..: Concession: _(a) City hereby grants to Concessionaire the exclusive right, privilege and concession to conduct, lunch stands, live bait and fishing tackle concessions on.the Newport 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 other items of fishing tackle as poles, lines, hooks, lures and weights, the sale of live bait,.and for the rental of.varioys items of fishing equipment. The sale of said items shall be subject to the prior written approval of the City Manager. Concessionaire 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) The consumption of alcoholic beverages on the pier is prohibited. Concessionaire shall not seek a license to sell alcoholic beverages on the pier. (c) 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 shal l be fixed by Concessionaire, but.must not be in excess of prevailing prices•in the City of Netfport 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 all items sold or rented to the public by. .Concessionaire. All food and beverage products sold shall be of high quality, and failure to maintain quality deemed _. satisfactory by 'City shall be deemed breach of this agreement. Unimpaired use of the Newport Pier by the public is to be ,maintained throughout the term of the concession agreement, -2- exclusive of the structures maintained, by Concessionaire on said Pier. (d) Concessionaire shall be subject to all state and local laws, rules and regulations and shall pay taxes law- fully 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 regula- tions,.including health.regulations. 2. Term of A reement:. (a) This Agreement .shall be in effect from until December 31,. 1982 unless sooner t rminated as hereinafter provided. . .. (b) During the term of this agreement, Concessionaire 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 k June 15 to September 30, all.dates inclusive, during each year. Different dates and hours may be fixed by Concessionaire with the. 'i approval of the City. Concessionaire shall use his best efforts . to open during the winter months, meather and other conditions permitting. . 3. yfnl:iation_to C.i Concessionaire shall pay to City the following amounts as consideration for this license: (a) From the opening of the Concession for business through December 31, 1982:Concessionaire shall pay to City a monthly payment of $1,000 per month for the months of June and July, and $1,500.00 per month for the months of August and September; and 5.5% of the monthly gross receipts for each month of the term including the months listed above. Payment shall be made to the City monthly -on or before the 20th day of the month following the month of operation. If Concessionaire is prevented from operating said -3- .- ...: x. concession during a part of June, July, August or September, by any cause Beyond his control, the required fixed monthly payment shall be prorated in the ratio which the actual operating period bears to the full month for which said fixed monthly payment is required. City shall be the sole judge as to whether the cause preventing operation is beyond control of Concessionaire. (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 Concessionaire through the operation of said - concession, or from any other business or activity carried on upon said area or any portion thereof by Concessionaire., 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 governmental entity and collected by Concessionaire or deposits made with Concessionaire to guarantee the return of rental equipment. .(c) Concessionaire covenants and agrees that it will, at all times during the term of this lease, keep or cause to be kept true and complete books, records and accounts of all financial transactions in the operation of all businesses, concessions, services, and activities of whatsoever nature conducted on or from said premises The records must be supported by documents from which the original entry of the transaction was made, including sales slips, cash register tapes and purchases invoices. All sales and charges shall be recorded by means of cash registers which display to the customers the amounts of the transactions certifying the amounts recorded. The registers shall be equipped with devices which lock in daily sales totals, and which shall record on tapes the transaction numbers and sales details. At the end of each day the tape will record the total sales for that day and the Concessionaire will verify the total gross sales each day by signing his or her name on the tape. _q_ i« (d) Concessionaire covenants agrees to deliverA. to City, not later than the tenth (]0th) day of each month, a true and correct statement of all gross receipts and gross sales for the preceding calendar month, showing separately: - - (1 ): The gross sales, and gross receipts from each - business, concession, service, coin operated 'machine or activity conducted on.or from said premises. (2) The total gross sales and gross receipts itemized as to each of the separate categories of gross sales and gross receipts upon which the percentage rentals herein reserved are based. . (e) All books, cash register tapes, records and accounts of every kind or - nature kept by the Concessionaire relating to the operation of the concessions shall, at.all reasonable time, be open . and made available for inspection or - - audit by City,, :its agents or employees or the duly authorized agents and employees of City'upon request. - (f) City and the duly.authorized agents and employees of City shall have the right to audit any or all such books, records and accounts for the puxpose of verifying the percentage payment required to be paid to the City hereunder.' If such audit shall show that the percentage payment required to be paid the - City is greater than the amount reported or paid by Concessionaire, Concessionaire covenants and agrees to immediately -pay the costs of the audit as well as the additional rental shown to be payable by.Concessiondire to City; otherwise such costs shall be borne by City.- City reserves the right to.install any accounting devices or machines, with or without personnel, for the purposes of accounting or audit. If such audit shall disclose any wilful and substantial inaccuracies, :this agreement at the option of City may be thereupon cancelled and terminated. -- (g) 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, _J_ Trade Name: .(a) Concessionaire 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 Concessionaire shall be subject to approval in writing by City. (c) Concessionaire 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 pier without the prior written consent of City, and such business signs shall 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) Concessionaire 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. Concessionaire 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 Concession Agreement shall not be sold, assigned, transferred, mortgaged, pledged or hypothecated. by Concessionaire without the prior written consent of City, nor shall Concessionaire 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: Concessionaire agrees to assume said right, privilege and concession hereby granted and to operate said . concessions on the Newport 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 buildings, equipment and fixtures thereon, as deemed necessary by City. In accepting the concession hereby granted, Concessionaire 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 -6- ro and other unpredictable factors. Notwithstanding the uncertainties involved, Concessionaire . agrees to supply the demand as it arises and to maintain an adequate supply of labor, food, b,.verages and equipment to do so. Concessionaire Further agrees to use his best effort to upgrade and encourage business and public use of said piers and license businesses. 7. Utilities and Sewerage: - (a) ,Newport Beach water is available to the buildings on the pier. Concessionaire 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. - - - (b) Newport Beach sewer service is not available to the building on the pier. The City will furnish and install a 1,000 gallon sewage holding tank_ undeLheath the building for the use of the Concessionaire. Concessionaire will be responsible for the cost of servicing the holding tank. Concessionaire 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 business._ Concessionaire 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. - (c) City will provide garbage and refuse pickup service on the Newport Pier. - (d) There is no,commercial gas available on the pier. Concessionaire may use bottled gas,, or he may request the City to have a gas line constructed on the pier at the Concessionaire's expense. S. Parking Restrictions: (a) Concessionaire agrees to permit only one vehicle owned and operated by him or his employees at any one time on the pier for the purpose of serving his business. said vehicle may be parked on the pier adjacent to the building. [f -7- (b) Vendors and del iverymen servi*e concession may drive vehicles on the pier. (c) The City will not provide parking spaces on the Concessionaire or his employees except for the one vehicle described in Section 8(a) of this Agreement. 9. Finishing Buildings and Furnishing Fixtures: (a) It is mutually understood that the existing concession building on the Newport Pier has been carefully examined by Concessionaire prior to the time his proposal was submitted to City. It is further understood that City is not responsible for having the interior of said building finished or remodeled. Concessionaire agrees to finish or.remodel the interior of the building and install all cabinets, fixtures and . equipment and maintain the same during the term hereof and connect all utilities necessary for Concessionaire's operations hereunder. Concessionaire shall pay all cost of doing the work hereunder. All work on the buildings by Concessionaire shall be done in accordance with plans and specifications approved by the Public Works Department, and pursuant to a building permit issued by City. Only first, class materials shall be used and all work must be performed and completed in a good and workmanlike manner. All cabinets and fixtures shall be of first class materials. The,type, style, materials and workmanship of the cabinet's and fixtures shall be subject. to the approval of city, and, if any such are disapproved, they shall be reconstructed or replaced as necessary to obtain said approval. (b) Concessionaire shall pay in full for the completion of the interior of the buildings as herein required at the time the work is done. (c) All fixtures and equipment installed by Concessionaire shall remain the property of Concessionaire, except to the extent any such fixtures or equipment are attached to and made a part of the building, in which case they shall become property of the City, at no expense to City. Upon termination -8- of this Agreement all.rights of Concessionaire shall end and Concessionaire 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 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. 10. Maintenance and Repairs: The building and the pipe lines, conduits, electrical equipment and other-equipment . on said pier are the property of City.. Concessionaire agrees to keep the.building' and equipment in.said building 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. 'Concessionaire'shall bring the existing building up to City Building Code standards, when applicable, within ninety (g0) days 'after execution hereof. Concessionaire 's . obligation includes, but is not limited_to, the exterior walls and roof, interior partitions of the building, window frames, doors, interior and exterior painting, and repair and replacement of windows in the building. If any exterior or interior painting or repair is required and Concessionaire fails or refuses to so paint or repair, City shall cause -the painting or repair to be . done at the expense of Concessionaire, after ten (10) days' written notice from City to do specific items of maintenance or repair as required herein. Concessionaire 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 the pier 'building shall be subject to the approval of the City Manager. . 11. Pier Areas Cleaning: Concessionaire shall keep the southerly 80 feet of the Newport Pier (the area where the -9- 11• deck wide all benches and the areas set- asi or.fish &lean- - ing on the pier,and the exterior and exterior of the building .clean and sanitary and free from rubbish, debris, and garbage of every kind at all times throughout the. term of this Concession Agreement, to the satisfaction of the City Manager. . 12. Failure to Maintain and Clean: I£ Concessionaire - fails to comply with the requirements of Paragraphs. 10 and 11 of this agreement with regard.to maintenance and cleaning of the . buildings, equipment and j 4 pier area, the Cifly._Manager shall notify-- - Concessionaire by personal service Ior by certified mail of such failure; and if the deficiencies are not corrected by Concessionaire within five (5) days following the receipt of the notice, the City Manager may proceed to have the work done and Concessionaire shall be obligated to reimburse City for the costs thereof. Failure on the part of Concessionaire to reimburse City within thirty (30) days receipt of such billing shall result in automatic termination of this agreement. 13. Independent Contractor: City shall have no interest in the operation.of the lunch stands, live bait or tackle con- cessions, and shall not be responsible for any injury or damage to the person or.property, of Concessionaire suffered or sustained in the operation of the lunch stands or live bait and tackle Concessions. It is understood and agreed that Concessionaire operates both.the lunch stands and live bait and tackle concessions as,anlindependent'contiactor. 14. Hold Harmless - Insurance: (a) Concessionaire agrees to release, and to protect and.save harmless, City and its officers, agents and employees from any and all claims, loss, or liability on. account of injury, loss or injury to any person or persons or property suffered or sustained in, on, or about the premises or elsewhere by any.person or persons whomsoever in any manner directly or indirectly arising out of or by reason of the conduct of Concessionaire's business or the use of equipment, - consumption of food or drink or the use or occupancy of said premises by Concessionaire or by any person claiming under -10- Concessionaire. (b) Concessionaire shall, at all times during the term of this agreement, maintain in full force and effect, with respect to this agreement, a policy or policies of comprehensive liability insurance (bodily injury, including ideath, property damage, product's liability; contractual and . automobile)' with minimum limits of Five Hundred Thousand ($500,000) Dollars combined single limit, naming the City and I its officers,..agents, and employees, as additional insured and further providing' an endorsement as follows: . "l.: The 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 or death to a person or persons,.or damage to property occurring in or about the leased premises, whether or not caused by their sole or contributing negligence. This policy shall be primary and non - contributing with any other insurance available to the-City of. Newport Beach, and will include a severability of interest clause. . 2. If this policy is cancelled or materially altered so as to affect the coverages, at least thirty (30) days prior written notice by registered mail of such cancellation or alteration will be sent to the City of Newport Beach, in care of the City Manager, 3300 Newport Boulevard, Newport Beach,' California 92663." (c) Said policy or policies shall be in a form satisfactory to City and certificates - issued by the insuring company shall be submitted to City concurrently with the execution of this agreement. Certificates for each and any new or 'renewal policy or policies effective during the term of this agreement shall be submitted to City at least twenty (20) days prior to the effective date of such policy or policies. 15. Workman's Compensation Insurance: Concessionaire shall obtain and maintain any necessary workman's compensation -11- insurance for all employees of Concessionaire, and shall provide, City with a certificate evidencing such insurance coverage issued by an admitted insurer or a consent to self- insure issued by the State of California, Director of Industrial Relations. 16. Destruction of Premises and Fire Insurance: (a) It is understood and agreed that City need not replace the buildings, piers, or any parts thereof, or any of the City equipment used in connection with Concessionaire's operations under this concession agreement in case the same.should be destroyed by fire, I accident, catastrophe or any other cause, including obsolescence, deterioration or decay. Should the buildings, piers or said equipment be destroyed or damaged to the extent that.the construction is needed, City has complete discretion to determine whether said.. building shall be restored or reconstructed and City may give Concessionaire written notice of its intent to restore or repair said buildings within sixty (60) days of damage or destruction. Concessionaire may elect to terminate this agreement upon thirty (30) days notice to City after City's determination not to restore or repair the buildings. If any such damage or destruction should occur Concessionaire's obligation to pay rent shall be suspended on the concession for the period of time his business operations are completely and necessarily suspended, but.not to exceed ninety (90) days. (b) Concessionaire agrees to maintain a fire insurance policy satisfactory to the City Attorney with extended coverage on the fixtures and equipment used by Concessionaire, insuring the same to the full insurable value thereof. In the event of destruction, loss or damage to Concessionaire's fixtures, Concessionaire shall begin work to repair or replace damaged or destroyed fixtures and equipment within thirty (30) days after notice from the City to do so and complete.the same as rapidly as possible. Should the cost of replacing, repairing and restor- ing such fixtures and equipment exceed the insurance proceeds, Concessionaire shall pay the remainder of such cost. Notwith- -12- standing the interruption of the business offincessionaire while work of replacing fixtures and equipment is being done, this agreement shall continue in effect. . (c) Should the pier be demolished or destroyed, for any reason, City shall not be obliged to Concessionaire, in any fashion, for,any loss of.trade, business, goodwill, fixtures, equipment or.other property of Concessionaire result-, ing from such demolition or destruction. 17. 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 Concessionaire is dissatisfied with any action or decision of the City, v Concessionaire may take the.matter to.the.City Council for review. The decision by the City Council shall be final. " 18. Notices: (a) All notices herein provided to 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 Concessionaire at:. 8292 Hazeltine Green Buena -Park, California 90621 And to the City at: City of Newport Beach 3300 Newport Boulevard .. .. Newport Beach, California 92663 Attention: City Manager '(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 Concessionaire.is not a lessee or tenant of the premises or any part thereof and that the only rights of Concessionaire are li, those prov, in this agreement. Should - Conce aire be deemed a lessee or enant, Concessionaire hereby specifically waives. - all rights under Section 1942 of the Civil Code of the State of California. 20. Concessionaire to Pay Cost of Litigation: . Concessionaire agrees to pay City all costs and expenses, includ- ing 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 Concessionaire 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 Concessionaire secure possession of the licensed portions of the Newport Pier or of any part thereof_ or secure any 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. Termination: Should Concessionaire fail to fully . perform any term or covenant of this agreement, City may provide Concessionaire with written notice of default which shall require Concessionaire to correct or remedy any such failure within ten (10) days of receipt of service of said Notice. Should Concessionaire fail to correct or remedy such default or defaults, this agreement shall be deemed terminated upon the expiration of said ten (LO) day period, and City may re -enter and control the premises and remove any property of,Concessionaire ... found in ., the premises. Concessionaire's obligation to pay rent shall -14- continue after re -entry until such time as City shall relet the premises or release Concessionaire frcm its obligation to pay rent by written notice. 24. Prompt Performance Required: Time is of the essence of this agreement. IN WITNESS WHEREOF,.the parties have executed this Agreement as of the date and.year first above written. CITY OF NEWPORT BEACH, A Municipal Corporation By .Mayor . ATTEST: er ./! woLFGkk MERTiNG ERIKA MERTING APPROVED AS TO FORM: Ads i to City orney 0 a RESOLUTION NO. 9753 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN EXTENSION TO THE NEWPORT PIER.CONCESSION LEASE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND WOLF - GANG AND ERIKA MERTING WHEREAS, there has been ,presented to the City Council of the City of Newport Beach a certain extension to the Newport Pier Concession Lease Agreement between the City of Newport Beach and Wolfgang and Erika Merting; and WHEREAS, the City Council has reviewed the terms and conditions of said extension and finds them to be satisfactory and that it would.be in the best interest of the City to execute said extension, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that the extension to the Newport Pier Concession Lease Agreement above described is approved, and the Mayor and City Clerk are hereby authorized and directed to execute the same on behalf of the City of Newport Beach. ATTEST: City Clerk ADOPTED this 24th day of March _'1980. Mayor . 3/25/80 R CITY OF NEWPORT BEACH OFFICE OF THE CITY MANAGER January 7, 1980 TO: MAYOR AND CITY COUNCIL FROM: City Manager 5/ L- (901 9y the CITY COUNCIL NyYtRO 41 9EACH CEMIL AGENDA NO. H -8 a SUBJECT: BAIT SHOP EXTENSION -- NEWPORT PIER CONCESSION Mr. W. Merting, lessee of the Newport Pier concession, is planning to construct an extension to the.current bait shop area at the subject facility. This 4 ft. by 12 ft. extension would provide additional merchandising area and employee work space and would generally enhance the utility of the concession building. (See attached sketch.) The Building and Planning Departments have each reviewed and approved the subject plans. Mr. Merting will not be requesting any City funding parti- cipation in the project, which will cost a total of approximately $2,000. This matter has been placed on the agenda for Council information. Should there be no questions or comments, Mr. Merting shall be advised that he may proceed. 4J DWI, ROBERT L. WYNN Attachment RLW:GJB:ib . ScRJr! ZW�ri�yws � i �csDii u P .r.. CSR RENT`S . 1 � i� f • 1 —J z � 3 f t jf lli • �/ � i 2Q W C1.b -- 25 31 i. 1. I+ DlNtt,a 71,le 1 r{ L1 2 J 11 a I_12d� �L! 1 • 0 September 20, 1977 Wolfgang and Erika Merting 8242 Haseltins Green Buena Park, CA 90621 Enclosed is the check deposited with the :City of Newport Beach as a bidder's bond in the amount of $500.00 in connection with the proposal for the Newport Pier concession. Doris George City Clerk DG:swk anc. 40 06 CITY OF NEWPORT BEACH TO: FINANCE DIRECTOR FROM: City Clerk SUBJECT: Contract No. 1901 CALIFORNIA City Hall 3300 W. Newport Blvd. Area Code 714 DATE Suns 1 1977 Description of Contract Nowpgrt FIaa GGAG B68{PF Authorized by Resolution No. Effective date of Contract Contract with adopted on 14ay n 3977 Address — 9242 Remeltine Green Amount of Contract Se_ Ag*eeneat City Clerk .M POLICY NO. To Follow POLICY TERM 5 -18 -77 to 5 -18 -80 NAME INSURED Wolfgang & Erika Merting- COMPANY NAME Fremont Indemntty City of Newport Beach CERTIFICATE OF INSURANCE FOR LEASE OF CITY PROPERTY This is to certify that the Fremont Indemnity Co. (Name of Company or Organization) of c/o RIC General Agency, 511 N. La Cienega Blvd., L.A., CA. 90048 (Address of Company or Organization) has issued to Wolfgang A Frika Mertin (Name of Insured) 8242 Hazeltine Green, Buena Park, Ca. 90621 (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 as follows: $ ann-non_on Comprehensive Liability, Combined Single Limit, Bodily Injury, and Property Damage, including: Products Liability, Rpr,nnal,l 1nirY r Pramicac Marliral : Eire Legal I i,tilito Contractual 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: 1. If the policy is cancelled or materially altered so as to affect the coverages, at least thirty (30) days prior written notice by registered mail 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 92663. 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 occur - ing in or about the leased premises, whether or not caused by their sole or contributing negligence. This policy shall be primary and non- contributing with any other insurance available to the City of Newport Beach, and includes a Severability of Interest Clause. Number To follow Effective Date of Policy: 5 -18 -77 Expiration Date of Policy: 5 -18-80 Dated: May 18 19 1977 at Pasadena, California (City) (State) Name of Agent or Broker: William Robinson & Company Address of Agent or Broker: Countersigned by : nson Representa IMPORTANT - THIS FORM IS THE ONLY CERTIFICATE OF INSURANCE ACCEPTABLE TO THE CITY OF NEWPORT BEACH. THE PERSON EXECUTING THIS CERTIFICATE IS CAUTIONED TO MAKE CERTAIN THAT HE HAS THE AUTHORITY TO EXECUTE THIS CERTIFICATE ON BEHALF OF THE INSURANCE CO. PER: 502 3/77 INSURANONDER Age ILLIAM ROBIN80N & COMPANY RB IN14u018oUtf4? aWl Renewal or - PRg8dSGg CBIii"niB 81100 - - PhOIIe QQB.0780 - ® New ❑ Renewal of Binder No. Extension of Policy No. - - Name of Insured and Address: - Wolfgang & Erika Merting PURPOSE OF BINDER 8242 Hazeltine Green This Binder is a temporary insurance contract to serve as evidence of insurance: Buena Park Ca. 90621 XW Pending Issuance and Delivery of Policy - - - -❑ Pending Issuance and Delivery of a Renewal Policy Business or Occupation: - -❑- Pending Issuance and Delivery of Endorsement to Policy ❑ Pending Negotiations of Rates, Premium or Coverage Fremont Indemntty -(Noma of lemrpace Cpmpany) - is hereby bound to an insurance undertaking for the Insured named above subject to the conditions set forth below as follows: - DESCRIPTION OF AUTOMOBILESr PROPERTY OR OPERATIONS AND LOCATIONS. - TYPE OF INSURANCE COVERAGE AND INSURED PERILS AMOUNT OF INSURANCE. OR - LIMITS OF LIABILITY Snack Shop situated: #1 Newport Pier Fire, ECE & UMM on Contents $25,000. Newport Beach, Ca. Business Liability, $500,000: Combined Sing Includes Premiees Limit Products Personal Injury Premiees Medical $250. Fire Legal $10,000. Contractual 1!&9PexR�iitR(R�S€f��(4efi(i xa�ixeX4Exs xiescse9l X The following clauses, special conditions or endorsements shall Additional Insured to: apply to this insurance: City of Newport Beach, c/o City Manager Hold Harmless Clause to City 3300 Newport Blvd. of Newport Beach Newport Beach, Ca. 92663 & 30 Day Written Notice of Cancellatio ORIGINAL BINDER SENT TO: ❑ Insured ❑ Mortgagee or Loss Payee Q(Other: City of Newport- Beach - - In consideration of the Insured's agreement to pay a premium based on published or manual rules and rates, and subject to all the provisions of the policy customarily Issued in the state where the insured property is situated, or exposures exist, by the Company bound herein insuring against the perils or the coverages specifically designated, it is agreed that insurance of the type named above Is bound for the following period: O Noon From May 18, - 19 77 at '12:01 A M. To June 18 - 1977 at (12:01 A.M. Standard time, or such time prior thereto as the Company's . policy maybe Issued In lieu hereof insuring the described risk. A Premium charge shall be mad. for the term of this Binder, calculated In the manner provided above, unless a policy is issued by this Company and Is accepted by the Insured covering the Binder term. The issuance of such a polity shall void this Binder. - This Binder may be cancelled at any time by the Insured by its surrender to the Company or to this agent, or by giving notice to the Company or to this agent when thereafter the cancellation shall be effective: The Binder. may be cancelled by the Company, or by this agent in behalf of the Company, by mailing to the Insured, and to the mortgagee or loss payee, if any, at the address shown above, written notice stating when not less than five (5) days thereafter such' cancellation shall be eltec- tive. (If the policy customarily issued by the Company for the subject form of insurance provides for ten (10) days notice to either the Insured or the mortgagee, or - both, to effect canceaation, then such number of days notice shall be applicable). The mailing of notices as aforesaid shall be sufficient notice. The effective date of cancellation stated in the notice shall become the end of the binder period. Delivery of written notice shall be equivalent to mailing. - - Date: 5 -17-77 cr BY C/ - Autho tilted Representative or Age nT� No. GF 201 -8 4 -68 Recommended CAIA -IBAC Form NOONMN PUOLISXIXn CCMPiXY ,RNTN MDXIC9. CGtIFONMA_ CONCESSION AGREEMENT NEWPORT PIER This Agreement, made and entered into this f day of May , 1977, between the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "City" and WOLFGANG AND ERIKA MERTING, husband and 'wife, � hereinafter referred to.as "Concessionaire" W I T N E S S E T H: WHEREAS, the City is the owner and is in possession and control of a certain pier known as Newport Pier, located in the City of Newport Beach, which extends into and over the water of the Pacific Ocean, at the extension of McFadden Place, which pier is 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 concession on said pier be continued for the use and convenience of the public and all persons using the pier for fishing and recreational purposes; and WHEREAS, the City Council desires that live bait be sold on the pier; and WHEREAS, Concessionaire has made a proposal to City to operate and maintain the concession on the Newport Pier; and WHEREAS, the proposed arrangement is mutually agreeable to City and the Concessionaire. r NOW, THEREFORE, in consideration of the payments hereinafter specified and the faithful performance of the other covenants of this agreement by Concessionaire, City hereby grants to Concessionaire a concession, privilege and right to operate lunch stands, live bait and tackle concessions on said pier subject to the following terms, covenants and conditions: 1. Concession: (a) City hereby grants to Concessionaire the exclusive right, privilege and concession to conduct lunch stands., live bait and fishing tackle concessions on the Newport 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 other 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. The sale of said items shall be subject to the prior written approval of the City Manager. Concessionaire 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) The consumption of alcoholic beverages on the pier is prohibited. Concessionaire shall not seek a license to sell alcoholic beverages on the pier. (c) 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 Concessionaire, 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 all items sold or rented to the public by Concessionaire. All food and beverage products sold shall be of 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 by the public is to be maintained throughout the term of the concession agreement, -2- � M exclusive of the structures maintained by Concessionaire on said Pier. (d) Concessionaire shall be subject to all state and local laws, rules and regulations and shall pay taxes law- fully 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 regula- tions, including health regulations. 2. Term of Agreement: (a). This Agreement shall be in effect from 1977 until December 31, 1982 , unless sooner t rminated as hereinafter provided. (b) During.the term of this agreement, Concessionaire 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 Concessionaire with the approval of the City. Concessionaire shall use his best efforts to open during the winter months, weather and other conditions permitting. 3. Compensation to City: Concessionaire shall pay to City the following amounts as consideration for this license: (a) From the opening of the Concession for business through December 31, 1982 Concessionaire shall pay to City a monthly payment of $1,000 per month for the months of June and July, and $1,500.00 per month for the months of August and September; and 5.5% of the monthly gross receipts for each month of the term including the months listed above. Payment shall be made to the City monthly on or before the 20th day of the month following the month of operation. If Concessionaire is prevented from operating said -3- M N concession during a part of June, July, August or September, by any cause beyond his control, the required fixed monthly payment shall be prorated in the ratio which the actual operating period bears to the full month for which said fixed monthly payment is required. City shall be the sole judge as to whether the cause preventing operation is beyond control of Concessionaire. (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 Concessionaire through the operation of said concession, or from any other business or activity carried on upon said area or any portion thereof by Concessionaire, 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 governmental entity and collected by Concessionaire or deposits made with Concessionaire to guarantee.the return of rental equipment. (c) Concessionaire covenants and agrees that it will, at all times during the term of this lease, keep or cause to be kept true and complete books, records and accounts of all financial transactions in the operation of.all businesses, concessions, services, and activities of whatsoever nature conducted on or from said premises. The records must be supported by documents from which the original entry of the transaction was made, including sales slips, cash register tapes and purchases invoices. All sales and charges shall be recorded by means of'cash registers which display to the customers the amounts of the transactions certifying the amounts recorded. The registers shall be equipped with devices which lock in daily sales totals, and which shall record on tapes the transaction numbers and sales details. At the end of each day the tape will record the total sales for that day and the Concessionaire will verify the total gross sales each day by signing his or her name on the tape. -4- M (d) Concessionaire covenants and agrees to deliver to City, not later than the tenth (10th) day of each month, a true and correct statement of all gross receipts and gross sales for the preceding calendar month, showing separately: (1) The ,gross sales, and gross receipts from each business, concession, service, coin operated machine or activity conducted on or from said premises. (2) The total gross sales and gross receipts itemized as to each of the separate categories of gross sales and gross receipts upon which the percentage rentals herein reserved are based. (e) All books,, cash register tapes, records and accounts of every kind or nature kept by the Concessionaire relating to the operation of the concessions shall, at all reasonable time, be open and made available for inspection or audit by City, its agents or employees or the duly authorized agents and employees of City upon request. (f) City and the duly authorized agents and employees of City shall have the right to audit any or'all such books, records and accounts for the purpose of verifying the percentage' payment required to be paid to the City hereunder. If such audit shall show that the percentage payment required to be paid the City is greater than the amount reported or paid by Concessionaire, Concessionaire covenants and agrees to immediately pay the costs. of the audit as well as the additional rental shown to be payable by Concessionaire to City; otherwise such costs shall be borne by City. City reserves.the right to install any accounting devices or machines, with or without personnel, for the purposes of accounting or audit. If such audit shall disclose any wilful and substantial inaccuracies, this agreement at the option of City may be thereupon cancelled and terminated. (g) 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, -j- Trade Name: M � (a) Concessionaire 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 Concessionaire shall be subject to approval in writing by City. (c) Concessionaire 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 pier without the prior written consent of City, and such business signs shall 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) Concessionaire 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. Concessionaire 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 Concession Agreement shall not be sold, assigned, transferred, mortgaged, pledged or hypothecated by Concessionaire without the prior written consent of City, nor shall Concessionaire 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: Concessionaire agrees to assume said right, privilege and concession hereby granted and to operate said concessions on the Newport 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 buildings, equipment and fixtures thereon, as deemed necessary by City. In accepting the concession hereby .granted, Concessionaire 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 so and other unpredictable factors. Notwithstanding the uncertainties involved, Concessionaire agrees to supply the demand as it arises and to maintain an adequate supply of labor, food, beverages and equipment to do so. Concessionaire further agrees to use his best effort to upgrade and encourage business and public use of said piers and license businesses. 7. Utilities and Sewerage: (a) Newport Beach water is available to the buildings on the pier. Concessionaire 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. (b) Newport Beach sewer service is not available to the building on the pier. The City will furnish and install a 1,000 gallon sewage holding tank underneath the building for the use of the Concessionaire. Concessionaire will be responsible for the cost of servicing the holding tank. Concessionaire 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 business. Concessionaire 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. (c) City will provide garbage and refuse pickup service on the Newport Pier. (d) There is no commercial gas available on the pier. Concessionaire may use bottled gas, or he may request the City to have a gas line constructed on the pier at the Concessionaire's expense. 8.. Parking Restrictions: (a) Concessionaire agrees to permit only one vehicle owned and operated by him or his employees at any one time on the pier for the purpose of serving his business. Said vehicle may be parked on the pier adjacent to the building. -7- (b) vendors and deliverymen serving the concession may drive vehicles on the pier. (c) The City will not provide parking spaces on the Concessionaire or his employees except for the one vehicle described in Section 8(a) of this Agreement. 9. Finishing Buildings and Furnishing Fixtures: (a) It is mutually understood that the existing concession building on the Newport Pier has been carefully examined by Concessionaire prior to the time his proposal was submitted to City. It is further understood that City is not responsible for having the interior of said building finished or remodeled. Concessionaire agrees to finish or remodel the interior of the building and install all cabinets, fixtures and equipment and maintain the same during the term hereof and connect all utilities necessary for Concessionaire's operations hereunder. Concessionaire shall pay all cost of doing the work hereunder. All work on the buildings by Concessionaire shall be done in accordance with plans and specifications approved by the Public Works Department, and pursuant to a building permit issued by City. Only first class materials shall be used and all work must be performed and completed in a good and workmanlike manner. All cabinets and fixtures shall be of first class materials. The type., style, materials and workmanship of the cabinets and fixtures shall be subject to the approval of City, and, if any such are disapproved, they shall be reconstructed or replaced as necessary to obtain said approval. (b) Concessionaire shall pay in full for the completion of.the interior of the buildings as herein required at the time the work is done. (c) All fixtures and equipment,installed by. Concessionaire shall remain the property of Concessionaire, except to the extent any such fixtures or equipment are attached to and made a part of the building, in which case they shall become property of the City, at no expense to City. Upon termination IM N► M of this Agreement all rights of Concessionaire shall end and Concessionaire 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 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. 10. Maintenance and Repairs: The building and the pipe lines, conduits, electrical equipment and other equipment on said pier are the property of City. Concessionaire agrees to keep the building and equipment in said building 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. Concessionaire shall bring the existing building up to City Building Code standards, when applicable, within ninety (90) days after execution hereof. Concessionaire's obligation includes, but is not limited to, the exterior walls and roof, interior partitions of the building, window frames, doors, interior and exterior painting, and repair and replacement of windows in the building. If any exterior or interior painting or repair is required and Concessionaire fails or refuses to so paint or repair, City shall cause the painting or repair to be done at the expense of Concessionaire, after ten (10) days' written notice from City to do specific items of maintenance or repair as required herein. Concessionaire 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 the pier building shall be subject to the approval of the City Manager. 11. Pier Areas Cleaning: Concessionaire shall keep the southerly 80 feet of the Newport Pier (the area where the M M deck widens), all benches and the areas set aside for fish.clean- ing on the.pier,and the exterior and exterior of the building clean and sanitary and free from rubbish, debris, and garbage of every kind at all times throughout the term of this Concession Agreement, to the satisfaction of the City Manager. 12. Failure to Maintain and Clean: If Concessionaire fails to comply with the requirements of Paragraphs 10 and 11 of this agreement with regard to maintenance and cleaning of the buildings, equipment and pier area, the City Manager shall notify Concessionaire by personal service or by certified mail of such failure, and if the deficiencies are not corrected by Concessionaire within five (5) days following the receipt of the notice, the City Manager may proceed to have the work done and Concessionaire shall be obligated to reimburse City for.the costs thereof. Failure on,the part of Concessionaire to reimburse City within thirty (30) days receipt of such billing shall result in automatic termination of this agreement. 13. Independent Contractor:. City shall have no interest in the operation of the lunch stands, live bait or tackle con- cessions, and shall not be responsible for any injury or damage to the person or property of Concessionaire suffered or sustained in the operation of the lunch stands or live bait and tackle Concessions. It.is understood and agreed that Concessionaire operates both the lunch stands and live bait and tackle concessions as an independent *contractor. 14. Hold Harmless - Insurance: (a) Concessionaire agrees to release, and to protect and save harmless, City and its officers, agents and employees from any and all claims, loss, or liability on.account of injury, loss or injury to any person or persons or property suffered or sustained in, on, or about the premises or elsewhere by any person or persons whomsoever in any manner directly or indirectly arising out of or by reason of the conduct of Concessionaire's business or the use of equipment, consumption of food or drink or the use or occupancy of said premises by Concessionaire or by any person claiming under -10- Concessionaire. (b) Concessionaire shall, at all times during the term of this agreement, maintain in full force and effect, with respect to this agreement, a policy or policies of comprehensive liability insurance (bodily injury, including death, property damage, product's liability, contractual and automobile) with minimum limits of Five Hundred Thousand ($500,000) Dollars combined single limit, naming the City and its officers, agents, and employees, as additional insured and further providing an endorsement as follows: "1. The 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 or death to a person or persons, or damage to property occurring in or about the leased premises, whether or not caused by their sole or contributing negligence. This policy shall be primary and non- contributing with any other insurance available to the City of Newport Beach, and will include a severability of interest clause. 2. If this policy is cancelled or materially altered so as to affect the coverages, at least thirty (30) days prior written notice by registered mail of such cancellation or alteration will be sent to the City of Newport Beach, in care of the City Manager, 3300 Newport Boulevard, Newport Beach, California 92663." (c) Said policy or policies shall be in a form satisfactory to City and certificates issued by company shall be submitted to City concurrently of this agreement. Certificates for each and a policy or policies effective during the term of shall be submitted to City at least twenty (20) the effective date of such policy or policies. the insuring with the execution zy new or renewal this agreement days prior to 15. Workman's Compensation Insurance: Concessionaire shall obtain and maintain any necessary workman's compensation -11- M insurance for all employees of Concessionaire, and shall provide City with a certificate evidencing such insurance coverage issued by an admitted insurer or a consent to self- insure issued by the State of California, Director of Industrial Relations. 16. Destruction of Premises and Fire Insurance: (a) It is understood and agreed that City need not replace the buildings, piers, or any parts thereof, or any of the City equipment used in connection with Concessionaire's operations under this concession agreement in case the same should be destroyed by fire, accident, catastrophe or any other cause, including obsolescence, deterioration or decay. Should the buildings, piers or said equipment be destroyed or damaged to the extent that the construction is needed, City has complete discretion to determine whether said building shall be restored or reconstructed and City may give Concessionaire written notice of its intent to restore or repair said buildings within sixty (60) days of damage or destruction. Concessionaire may elect to terminate this agreement upon thirty (30) days notice to City after City's determination not to restore or repair the buildings. If any such damage or destruction should occur Concessionaire's obligation to pay rent shall be suspended on the concession for the period of time his business operations are completely and necessarily suspended, but not to exceed ninety (90) days. (b) Concessionaire agrees to maintain a fire insurance policy satisfactory to the City Attorney with extended coverage on the fixtures and equipment used by Concessionaire, insuring the same to the full insurable value thereof. In the event of destruction, loss or damage to Concessionaire's fixtures, Concessionaire shall begin work to repair or replace damaged or destroyed fixtures and equipment within thirty (30) days after notice from the City to do so and complete the same as rapidly as possible. .Should the cost of replacing, repairing and restor- ing such fixtures and equipment exceed the insurance proceeds, Concessionaire shall pay the remainder of such cost. Notwith- -12- so standing the interruption of the business of Concessionaire while work of replacing fixtures and equipment is being done, this agreement shall continue in effect. (c) Should the pier be demolished or destroyed, for any reason, City shall not be obliged to Concessionaire, in any fashion, for any loss of trade, business, goodwill, fixtures, equipment or other property of Concessionaire result- ing from such demolition or destruction. 17. 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 Concessionaire is dissatisfied with any action or decision of the..City, Concessionaire may take the matter to the City Council for review. The decision by the City Council shall be final. 18. Notices: (a) All notices herein provided to 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 Concessionaire at: 8242 Hazeltine Green Buena-Park, California 90621 And to the City at: City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Attention: City Manager (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 Concessionaire is not a lessee or tenant of the:premises or any part thereof and that the only rights of Concessionaire are -13- those provided in this agreement. Should Concessionaire be deemed a lessee or tenant, Concessionaire hereby specifically waives all rights under Section 1942 of the Civil Code of the State of California. 20. Concessionaire to Pay Cost of Litigation: Concessionaire agrees to pay City all costs and expenses, includ- ing 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 Concessionaire 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 Concessionaire secure possession of the licensed portions of the Newport Pier.or of any part thereof or secure any 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, Termination: Should Concessionaire fail to fully perform any term or covenant of this agreement, City may provide Concessionaire with written notice of default which shall require Concessionaire to correct or remedy any such failure within ten (10) days of receipt of service of said Notice. Should Concessionaire fail to correct or remedy such default or defaults, this agreement shall be deemed terminated upon the expiration of said ten (10) day period, and City may re -enter and control the premises and remove any property of Concessionaire found in the premises. Concessionaire's obligation to pay rent shall -14- e M continue after re -entry until such time as City shall relet the premises or release Concessionaire from its obligation to pay rent by written notice. 24. Prompt Performance Required: Time is of the essence of this agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. ATTEST: Xt-�r.f-) L-,A� ity Clerk APPROVED AS TO FORM: A si adb CityVWorney CITY OF NEWPORT BEACH, A Municipal Corporation M 6!ZR� &..' g 4 '/�' 1( WOLFGO NG MER NG ERIKA MERTING -15- eu RESOLUTION NO. 9075 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH AWARDING A CONTRACT TO ERIKA AND WOLFGANG MERTING FOR THE OPERATION OF THE PIER CONCESSION ON THE NEWPORT PIER IN THE CITY OF NEWPORT BEACH WHEREAS, pursuant to the notice inviting bids for the operation of the pier concession on the Newport Pier in the City of Newport Beach, and in accordance with the specifications heretofore adopted, bids were received on the 18th day of April, 1977, and publicly opened and declared; and WHEREAS, the City Council appointed a special ad hoc committee to review the bids received; and WHEREAS, the special ad hoc committee is recommending that Erika and Wolfgang Merting is the most qualified and responsible bidder; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Newport Beach that the bid of Erika and Wolfgang Merting for the operation of the pier concession on the Newport Pier be accepted. BE IT FURTHER RESOLVED that the Mayor and City Clerk are hereby authorized and directed to execute a contract in accordance with the specifications, bid and this award on behalf of the City of Newport Beach, and the City Clerk is hereby directed to furnish an executed copy to the successful bidder. ADOPTED this 9th ATTEST: City Clerk day of May , 1977. Mayor DDO /bc 5/3/77 123 PROPOSAL TO THE . CITY OF NEWPORT BEACH FOR THE CONCESSION ON THE NEWPORT PIER The undersigned makes the following proposal to the City of Newport Beach for the operation of the pier concession on the Newport Pier in the City of Newport Beach, California. NAME BUSINESS ADDRESS 16MILDYA�i /3Y 111jnietk ,4r /334�f S MG /A, �n L RESIDENCE ADDRESS ifz /il/( $LsL % /N�� G�6Ff! 6lE.di4 Awff eli BUSINESS PHONE NO.2.13 3.t7 117-P RESIDENCE PHONE NO. 7/y 5'2/ yyr and, if awarded the concession, agrees to execute a form of an agreement (attached) similar to the existing agreement, and operate the concession in accordance with the provisions of said agreement. TO THE CITY OF NEWPORT BEACH: I, (we) declare that the only person or persons interested in this proposal are those named herein; that this proposal is made without collusion with any other person, firm or corporation; that the location of the concession area, the terms, conditions, and specifications, and other stipulations of the Notice Inviting Proposals, Special Conditions and form of agreement have been examined by me (us); and I (we) agree, if this proposal is accepted, to execute the contract and operate the concession in accordance with the terms before stated and to do any and.all other acts to fulfill the requirements thereof; and that during the term said concession agreement is in effect I (we) will pay therefor the yclfk%y AAIJ following guaranteed minimum meet43ry rental -ee the following percentage of gross receipts, to the City of Newport Beach, to wit: From the date of execution through December 31, 1982, a fixed yearly payment of Five Thousand Dollars ($5,000) plus 8 percent of the monthly gross receipts from the salable items,, tle• test- 7- '_ving-adj-ustments 24 NOTICE: Each person submitting a proposal must attach preliminary plans for the remodeling, upgrading of the exterior and interior of the concession building on the Newport Pier. NOTICE: The above proposal is for the basic concession contemplated in the Notice Inviting Proposals and related materials. The concession is considered the basic minimum standards of performance. The additional services or performance standards may include, but are not hereby so limited, such things as rebuilding of the existing concession building, installation of additional utility services, increase in the scope of services and /or products rendered or sold, or other such items. If the undersigned fails to execute the concession agreement within ten (10) days after receiving notice from the City that the agreement is ready for signature, the City may determine that this proposal has been abandoned and thereupon this proposal and the acceptance thereof shall be null and void and the guarantee accompanying this proposal shall be forfeited and the same shall be the property of the City. Accompanying this proposal is Five Hundred Dollars ($500.00)CAS#4 C#cl7k(insert the words "cash, cashiers check, certified check or money order") as a guarantee that, if the proposal is accepted, the undersigned will execute the concession agreement. I AGREE TO SELL LIVE BAIT Y&�s -2- IMPORTANT NOTICE: If the proposal is by a corporation, the follow ing information must be supplied for the president, secretary, treasurer and general manager; if by a partnership; for all partners; and, if by an individual, for the individual. Additional information may be required as to all such persons as to others interested in the proposal. FULL NAME BUSINESS (Use additional sheets of paper, if necessary) PRINCIPAL PLACE OF BUSINESS IN CALIFORNIA e* BUSINESS TELEPHONE NO. 2 / 3 3Z i 2710 / � RESIDENCE ADDRESS Az �fZ �/i¢SELT /�C� Q��E6� d1jCAA1& AAiC� HOME OWNER - RESIDENCE TELEPHONE NO. / .S2, ,,,SHIP? YES L"" NO 1V01 i4'p R/4' LACE OF A! ITAr- DATE OF BIRTH 9 / Z BIRTH afYB&s STATUS h4&9 141 tl� iKa /z /7 G'r- k'HfAl% LIST IN ORDER, STARTING WITH THE MOST RECENT, THE FOLLOWING INFOR- RATION ON BUSINESSES IN WHICH YOU WERE EMPLOYED OR HAD AN INTEREST DURING THE PAST 15 YEARS: (Use additional sheets of paper, if necessary) NAME OF BUSINESS Sc ✓( L� S LZ t�( DATES ADDRESS OF BUSINESS TYPE OF BUSINESS INTEREST OR POSITION NUMBER SUPERVISED NUMBER OF EMPLOYEES BY YOU BUSINESS BANK ANNUAL GROSS IF A SERVICE BUSINESS, THE MAXIMUM NUMBER SERVED IN A DAY IF NOT STILL AFFILIATED, REASON FOR LEAVING HAVE YOU EVER BEEN ARRESTED? YES NO &/0 IF YES, STATE WHERE, WHEN, REASON, AND DISPOSITION OF MATTER -4- i� W, DO YOU CONSENT TO BEING FINGERPRINTED? YES NO LIST FIVE CHARACTER REFERENCES: Name Address City State XLaus AWFRiCHic-R ,z, /ice BnrA/i,!�/n , 64 -7/f -Y.s f73P PcRRY VAitaHN llzg Ir,C14,4LYWI -V -IVe Ok-41VOC,f-I 7111- .1.82, 7166' HCLRUT6'0,FjVl >`i 4.6'"0/ M %/4L1,:,4A1. /1K, s4w1iceoieA 7/:2777/38 61j5WA ,LL TeX CTaLG WTRiiR G'Ri19h 55r �iAK pARtf Q. S �✓_TDS�, /{oP- 99�z ?1F8 a�RH*R_) aO&Alrath RRI. L,4a�Vgt -E,3e VDk Z//c e,*AA- * 6011 - 3902792 LIST FIVE CREDIT REFERENCES: Name Address City State LCAA1 jil HyHE Si yl1ya'S ck L ©AN PG i5 ©Y 3703 61j5WA ,LL TeX 9/20/ 6B01fd'/83 POZZe cc6cD-lveif : k,¢/SrQ X46 —FiV4 AC, &t V- 12f35 fA4/(L.4A/) , eA A1(O/i C /-1105- 0SO3)9 !,/0,111) S,40A'�'i5 I-o 11 ,20 iy Sr. 9 Bomli+lHY 641(44,0. 64 f (oi2 04- .050x$ _t( d0iuEk'at k6c^kS heecirC40RP a,0o i,l; H19RbLoNI iii), ZcAl4,(3che14 6g 9c8E7 71- o3io -05yk1 b,QaK GF /lHielZ /C.4 /86' L6fa/�icn' (�Lv % 4'oA?/'ieii.'�L/d POZZe cc6cD-lveif : k,¢/SrQ X46 —FiV4 AC, &t V- 12f35 fA4/(L.4A/) , eA A1(O/i C /-1105- 0SO3)9 IF YOU DO NOT INTEND TO INVEST YOUR OWN CAPITAL IN THIS CONCESSION BUSINESS, STATE SPECIFICALLY AND IN DETAIL THE SOURCE OF YOUR CAPITAL: IN THE FOLLOWING SPACE, OR ON ADDITIONAL PAPER, STATE THE REASONS YOU FEEL QUALIFIED TO CONDUCT THIS BUSINESS AND SUPPLY ANY ADDITIONAL INFORMATION ABOUT YOURSELF, YOUR BUSINESS, OR YOUR PLANS FOR THE CONDUCT OF THE CONCESSIONS WHICH YOU FEEL WILL BE HELPFUL TO THE CITY IN EVALUATING YOUR PROPOSAL FOR THE OPERATION OF THE BUSINESS ON THE NEWPORT PIER. ' S 154 7-Ti4 c H P C-1V i -5- 27 I (We) agree that all information supplied may be checked and that such information iw� any additional information obtained in the course of evaluation of this proposal may be disclosed to the City Council and others concerned as necessary to reach a decision. Date A� rk I L 16 , 1977 SIGNATURE (S) (HAVE YOU PROVIDED THE FINANCIAL STATEMENTS AND ALL OTHER INFOR- MATION REQUIRED?) -6- r . p April 11, 1977 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT PROPOSAL FOR A FOOD, BEVERAGE, LIVE BAIT AND TACKLE CONCESSION AT THE NEWPORT PIER IN THE CITY OF NEWPORT BEACH, CALIFORNIA ADDENDUM NO. 1 NOTICE TO BIDDERS: Please be advised that the first and second pages of the PROPOSAL (pages numbered 23 and 24 at the top of the pages), have been amended. Two copies each of amended pages 23 and 24 are attached to this addendum. Please sign and date one copy of the addendum, and attached to your proposal, along with the amended pages 23 and 24. No proposal will be considered without the addendum attached. THE ADDENDUM PROVIDES THAT: During the term said concession agreement is in effect the bidder will pay therefor the following guaranteed minimum yearly rental, and the following percentage of gross receipts, to the City of Newport Beach, to wit: From the date of execution through December 31, 1982, a fixed yearly payment of Five Thousand Dollars ($5,000) plus percent of the monthly gross receipts from the salable items. A former reference to a cost of living adjustment has been deleted. 4�nne L. Perry Project Manager I acknowledge receipt of addendum No. 1. B der -- Datre I l�Pc i l to , /1 ,tl- CITY OF NEWPORT BEACH NOTICE INVITING PROPOSALS FOR A FOOD, BEVERAGE, LIVE BAIT AND TACKLE CONCESSION AT THE NEWPORT PIER IN THE CITY OF NEWPORT BEACH, CALIFORNIA NOTICE TO PROSPECTIVE CONCESSIONAIRES: Proposals shall be plainly marked on outside of sealed envelope: "Proposal for Concession at Newport Pier, Newport `\ ,,. Beach, California." I r , a3 ey PROPOSAL TO THE CITY OF NEWPORT BEACH FOR THE CONCESSION ON THE NEWPORT PIER The undersigned makes the following proposal to the City of Newport Beach for the operation of the pier concession on the Newport Pier in the City of Newport Beach, California. NAME tV4L r 6 A1✓4 BUSINESS ADDRESSX ?"',' .4 e4 4,r y�s�ck f /33941 -S, 11AIA/ I , Y ®w L! RESIDENCE ADDRESS B2, *2, #ASG1-% /N[: �.Pv'L �✓ 46466AIA- Ake, e* BUSINESS PHONE NO.IJ3 32-72 79e RESIDENCE PHONE NO. -I a 1 6 449 and, if awarded the concession, agrees to execute a form of an agreement (attached) similar to the existing agreement, and operate the concession in accordance with the provisions of said agreement. TO THE CITY OF NEWPORT BEACH: I, (we) declare that the only person or persons interested in this proposal are those named herein; that this proposal is made without collusion with any other person, firm or corporation; that the location of the concession area, the terms, conditions, and specifications, and other stipulations of the Notice Inviting Proposals, Special Conditions and form of agreement have been examined by me.(us); and I (we) agree, if this proposal is accepted, to execute the contract and operate the concession in accordance with the terms before stated and to do any and all other acts to fulfill the requirements thereof; and that during the term said concession agreement is in effect I (we) will pay therefor the following guaranteed yearly rental and the following percentage of gross receipts, to the City of Newport Beach, to wit: From the date of execution through December 31, 1982, a fixed yearly payment of Five Thousand Dollars ($5,000) plus 5.5 percent of.the monthly gross receipts from the salable items. NOTICE: Each person submitting a proposal must attach preliminary plans for the remodeling, upgrading of the exterior and interior of the concession building on the Newport Pier. is NOTICE: The above proposal is for the basic.concession Y S contemplated in the Notice Inviting Proposals and related materials The concession is considered the basic minimum standards of performance. The additional services or performance standards may include, but are not hereby so limited, such things as rebuilding of the existing concession building, installation of additional utility services, increase in the scope of services and /or products rendered or sold, or other such items. If the undersigned fails to execute the concession agreement within ten (10) days after receiving notice from the City that the agreement is ready for signature,.the City may determine that this proposal has been abandoned and thereupon this proposal and the acceptance thereof shall be null and void and the guarantee accompanying this proposal shall be forfeited and the same shall be the property of the City. Accompanying this proposal is.Five Hundred Dollars ($500.00) Makinsert the words "cash, cashiers check, certified check or money order') as a guarantee that, if the proposal is accepted, the undersigned will execute the concession agreement. I AGREE TO SELL LIVE BAIT Yt- -2- CITY OF NEWPORT BEACH NEWPORT PIER CONCESSION NOTICE TO PROSPECTIVE CONCESSIONAIRES Sealed proposals will be received at the office of the City Clerk in the City Hall at 3300 Newport Boulevard, Newport Beach,.California, until 2:00 P.M. on April 18, 1977 for the operation of a food, beverage, live bait and tackle concession in the buildings on the Newport Pier, located in the City of Newport Beach, Orange County, California, in accord- ance with the attached conditions, proposal and agreement forms. Each person submitting a proposal shall carefully examine the interior and exterior of the concession building on the Newport Pier, concession provisions and condition, the proposal form, and the form of the concession agreement attached hereto. Interior inspection of the building and facilities located at the Newport Pier may be arranged by appointment through the Public Works Department. Phone: (714) 640 -2281. A preliminary plan for the rebuilding and /or upgrading of the exterior and interior of the concession building on the Newport Pier must be submitted by each person submitting a proposal. Each person submitting a proposal must, before submitting his proposal, investigate and become informed as to the character, quality, and quantities of work or acts to be performed by the concessionaire and the requirements of these specifications, conditions and the concession agreement attached hereto. A proposal will be considered only if it is made sub- stantially in accordance with the proposal form. The City of Newport Beach, acting through its City Council, reserves the right to reject any and all proposals and to waive informalities therein. The award of the concession, if it is �w rde ,swill be to the person(s) submitting a proposal which complies with the requirements prescribed herein and who 2 ft is selected by the City Council as the best qualified operator for the concession. The City desires that live bait be sold on the pier. Preference may be given to bidders agreeing to sell live bait on the pier. Although of substantial importance in making the award, the monetary return to the City will not be the sole criterion in awarding the concessions. The City Council shall be the sole judge in determining who shall be granted the concessions and may refer all proposals to a committee or commission for evaluation and recommendation. Within thirty (30) days after the award of the concessions, the City will return the proposal guarantees accom- panying proposals of those who did not receive the award. The proposal guarantees of the persons receiving the award will be held until the contract is fully executed, after which said proposal deposit will be returned. -2- { Y M L{ Y, CITY OF NEWPORT BEACH NEWPORT PIER CONCESSION SPECIAL PROVISIONS AND CONDITIONS 1. Proposal Requirements and Conditions: All proposals must be presented under sealed cover and shall be accompanied by cash, cashier's check, certified check, or money order made payable to the City of Newport Beach in the amount of Five Hundred Dollars ($500.00) as a guarantee that if the proposal is accepted the person making the proposal will execute the concession agreement, and no proposal shall be considered unless accompanied by the amount required herein. Proposals must be on proposal form or in substantial conformance with proposal form. Any proposal may be withdrawn at any time to the final time fixed for receiving the proposals provided a request for withdrawal is made in writing, executed by the proponent or his authorized representative, and filed with the City Clerk. The withdrawal of a proposal shall not prejudice that person with respect to filing a new proposal. Persons submitting a proposal must file, along with the proposal, a separate current detailed financial statement in addition to the information required by the accompanying proposal form. Each person submitting a proposal shall carefully examine the existing concession building on the Newport Pier and the existing facilities located therein, the proposal form and the form of the concession agreement attached hereto. In examining and evaluating the proposals, it will be assumed that each person submitting a proposal has investigated and has become informed as to the character, quality, and quantities of work or acts to be performed by the concessionaire and as to the requirements of these Special Provisions and Conditions and 5 L a the proposed concession agreement attached hereto. 2. Term of Concession: The term of the concession agreement, or agreements, shall begin upon the date of execution (estimated to commence May 10, 1977) and shall end on December 31, 1982, unless terminated sooner as provided in the concession agreement. 3. Concession Privileges and Requirements: The right, 4% privilege and concession to be granted will be to furnish, maintain,. and operate concessions for dispensing food and beverages,, and sale of live bait and tackle. Unimpaired use of the Newport Pier by the public is to be maintained throughout the terms of the concession agreement. Concessionaire, at his 'own expense, must completely maintain the: interior of the concession building, including painting, replacement of glass, and regular cleaning, all to the satisfaction of the City. The concessionaire shall provide all necessary trade fixtures and equipment to operate the concession business at his sole expense. Said fixtures and equipment shall remain the property of the concessionaire, except to the extent any such fixtures or equipment are attached to and made a part of the building, in which case they shall become the property of the City at no expense to the City. Concessionaire must obtain utilities as any other occupant of.business premises and must pay for all utilities. The 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 for proper service to the public. Prices shall be fixed by concessionaire, but the City reserves the right to establish a schedule of maximum prices for all items sold or rented. The City desires that live bait be sold by the Concession- aire. Preference in awarding the bid may be given to bidders agreeing to sell live bait. All proposals will include a provision for a fixed 4 minimum annual payment of Five Thousand Dollars ($5,000.00), plus a percentage of the monthly gross receipts for every month of the term. Proposals will be compared on the basis of the percentage of the monthly receipts bid and whether bidder proposes the sale of live bait. 4. Additional Terms: Prospective concessionaires are referred to the concession agreement attached hereto for additional specific requirements of the concession agreement. 5. Books of Account: Concessionaire shall maintain an auditable accounting system in a manner satisfactory to the City, and will have all receipts run on a cash register(s) having a locked cumulative total device. 6. Upgrading of Building: The existing building on the pier is old, and is in need of upgrading and /or repair. As a minimum acceptable bid the City will require that the concessionaire upgrade the concession building to conform to current building and related codes. The costs, including building modification and upgrading to meet said Codes shall be borne by the successful concessionaire; except that the City will contribute up to Eight Thousand Dollars ($$,000.00) toward refurbishing the exterior of the building, and the City will furnish and install a 1,000 gallon sewage holding tank. The City will obtain and pay for all necessary permits associated with remodeling the building, including any necessary Coastal Permits. The Concessionaire will be responsible for obtaining and paying for all other permits. The existing water service line and the electrical service line, appear to be adequate for current operations on the pier. The pier is not served by a gas line or sewer line; if either is required by the Concessionaire, he will be responsible for its installation cost. The existing electric pump used for pumping sea water into the live bait tank is the property of the City and is avail- able for use by the Concessionaire if he desires. If concessionaire -3- 7 0 desires to sell live bait he must provide his own live bait which will be his own property. The City reserves the sole and exclusive right to review, revise, negotiate and accept or reject any and all bids based on criteria determined by the City. l� O S e4 L C' I/2 r r/ Fom i P-XIST1114' WALLS NEW WALLS A�DRess -D - # New Pont PIER -bQAUA/ BY; W. M�R►'i�l� I . ` kirCtl[:N IZoaF Piicll J Ek15T 1 N� �� I5 Z _ - - - /Z i � 3 i {\ i j BALGDA - __ -PIEc - - 0 C -L A .1 )ACKLL SHOP V Ek) sr I dc, " CA CH !f u Nr, Ve roA/ w 0 co — a' g cu z G) a Z v A 2 z O m X N m M■ N 0 0 3 W I w � M■ N 0 0 SP ¢�FtLICi. J_----- b -o s CURRENT Y,i C? I N i rte! If► c og I w •� ;gip. ... 7 � a _G 'D— E r� 0 L N r Lu ' Y� V I �j z �� 0 .� Z - H c: t CAIO� ow 7; `i LU �► V C: " Z -/ i � G _. Ui w - � -. u c •� ;gip. ... 7 � a _G 'D— E r� R11 ,S w— en Y —Fold under at dotted line. 9_ O SC ! X� Fag l r vI r� 'pI n!I rol cel oI �i NI nl vl ufl o� ooI ml of �I N rI v� v !� ---Fold under ar dotted line. {---Fo1d imcler at clotted line. 1�! VIEVI FROM IHE 4pl3D�,- Pr �Q o i O VlEtJ ar K Q P; ! 1r. C i -r V I r la% rR 6 M I P r- Hy wdre - i I NI M� C O 1 t0 h 00 .TI O - N M V Ifl OI m O� O NI M p V1 OI O OI I 0OI .....�...�.e.-.e..Ol OI �.lrw4��.e.. E'.l�r� I.nr1.�t•'Is Arlt tnr{ ��isr� r � o Q D o , 1�! VIEVI FROM IHE 4pl3D�,- Pr �Q o i O VlEtJ ar K Q P; ! 1r. C i -r V I r la% rR 6 M I P r- Hy wdre - i I NI M� C O 1 t0 h 00 .TI O - N M V Ifl OI m O� O NI M p V1 OI O OI I 0OI .....�...�.e.-.e..Ol OI �.lrw4��.e.. E'.l�r� I.nr1.�t•'Is Arlt tnr{ ��isr� PIERNCESSIONOK"D.` ��city, A Buena Park couples'who but a 3 -member ad hoc say they have experience City Council committee re- feeding lumberjacks in Ca- commended that the Mert- nada, have won the right to ings get the bid, because of run the concession stand on their experience in the food Newport Pier. They won the business. The City Council contract with the city of New- went along 5-'l, with Coun- port, over the objections of cilman Donald McInnis of an engineer and an airline West Newport voting no. stewardess, who claim they An attorney for Verba - could do a better job and Koelble claimed that the would give the city a bigger Mertings were interested cut of the concession income. only in running a restaurant Wolfgang and Erika Mert- on the pier, and that his cli- ing say they will expand the ents had more experience pier's snack shop to seat 22 with fishermen. people. A live -bait sale area will also be re -opened, they promised. They hope to open in late June. The concession stand has been operated for many years by Mr, and Mrs. Noel Phoenix, who lost their lease over a contract dispute with the city. Monday night, the City Council awarded a 5 -year contract to the Mertings, who will give the city 5.5 per cent of their gross income. Ronald Verba and Carol Ann Koelbie had offered to give 7.5 per cent to the