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