HomeMy WebLinkAboutC-4821 - Corona del Mar Concession License Agreementn Z /ul
AMENDMENT NO. ONE TO
CORONA DEL MAR CONCESSION LICENSE AGREEMENT WITH
WAHOO'S FISH TACO
THIS AMENDMENT NO. ONE TO CORONA DEL MAR CONCESSION
LICENSE AGREEMENT ( "Amendment No. One "), is entered into as of this 9th day of
August, 2011, by and between the City of Newport Beach, a California municipal
corporation and charter city ( "City "), and Wahoo's Fish Taco, a California limited liability
company, whose principal place of business is located at 2855 Pullman Street, Santa
Ana, California 92705 (yahoo's ").
RECITALS
A. On July 8, 2011, City and Wahoo's entered into a Corona del Mar
Concession License Agreement ( "Agreement ") to provide temporary concessions at the
Corona del Mar State Beach.
B. City and Wahoo's desire to enter into this Amendment No. One, pursuant
to Agreement Section 17 et seq., to extend the term of the Agreement to allow
temporary concessions at the Corona del Mar State Beach through October 2, 2011, on
a frequency determined by the City Manager or his designee.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 2 of the Agreement is amended in its entirety to read as follows:
"The term of this Agreement shall be from July 9, 2011 to September 30, 2011 unless
extended or terminated as provided herein. Wahoo's may operate its mobile
concession stand on the Premises on those dates authorized by the City Manager or his
designee, including but not limited to August 21St through September 6th."
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants set forth
in the Agreement shall remain unchanged and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No
One on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
OFFICE OF THE CITY ATTORNEY A Califo`nia municipal corporation
Date: -9 22 i ' Date:
By: fOr By:
Leonie I ill Dave Ki
Assistant City Attorney '�iilb�lt City Manager
ATTEST:
Date: 8'31 I I
By: aa4� -P
Leilani I. Brown
City Clerk
WAHOO'S FISH TACO,
a California Limited Liability Company
Date: &- S - /
By
Wing
Co- FYunder and Partner
Corona del Mar Concession License Agreement
This Corona del Mar Concession License Agreement ( "Agreement ") is made and
entered into as of the 1st day of August, 2011, by and between the City of Newport
Beach, a California municipal corporation and charter city ( "City ") and Flavor Rush,
d.b.a. for Innovative Travel Planner, Inc., a California Corporation whose principal place
of business is located at 4570 Campus Drive, Suite 52, Newport Beach, California
92660 ( "Flavor Rush ").
RECITALS
A. The City manages the concession operations at Corona del Mar State
Beach pursuant to an Operating Agreement between the City and the State of
California, dated August 1, 1999.
B. The City is in the process of securing a long -term tenant to provide
concessions at the one thousand forty -three (1,043) square foot concession facility
located at Corona del Mar State Beach, depicted on Exhibit "A" and incorporated herein
by this reference ( "Premises').
C. The City will not complete its search for a long -term tenant at the Corona
del Mar State Beach in time for summer 2011.
D. The City Council of the City of Newport Beach authorized the City
Manager at its May 24, 2011 City Council meeting to enter into a temporary concession
agreement to ensure the City's residents and visitors have adequate services available
at the Corona del Mar State Beach.
E. The City entered into a concession license agreement with Flavor Rush
dated July 5, 2011 to provide temporary concessions at the Corona del Mar State
Beach while the City continued its search for a long -term tenant.
F. The City and Flavor Rush su sequently extended the term of the July 5,
2011 concession license agree 'ei is a ritten letter dated July 22, 2011.
G. The July 5, 2011 concession license agreement, as amended, has expired
and the City and Flavor Rush desires to enter into this Agreement to allow Flavor Rush
to provide temporary concessions at the Corona del Mar State Beach.
AGREEMENT
NOW, THEREFORE, it is mutually agreed by and between the City and Flavor
Rush as follows:
1. INCORPORATION OF RECITALS
The parties acknowledge the Recitals provided above are true and correct and
are incorporated into the operative part of this Agreement.
2. TERM
The term of this Agreement shall be for Monday, August 1, 2011 through
Saturday, August 20, 2011, unless extended or terminated as provided herein.
3. GRANT OF LICENSE
City grants Flavor Rush a revocable license to occupy space adjacent to the
Premises for the purposes of operating a mobile concession stand. City also grants
Flavor Rush a license to use the interior of the Premises for the purposes of storing
supplies and material for the mobile concession stand. Flavor Rush may sell food and
non - alcoholic beverages at its mobile concession stand. Under no circumstances may
Flavor Rush sell or distribute alcoholic beverages. At a minimum, Flavor Rush shall
operate its mobile concession stand between the hours of 11:00 a.m. and 4:00 p.m.,
except for rainy conditions, in which event Flavor Rush may operate its concession at its
discretion. Flavor Rush may choose to keep the concession open earlier or later than
the noted hours provided that Flavor Rush does not remain operating in the space after
the beach is closed.
City finds it to be in the public interest and consistent with park uses to grant this
revocable license to operate a mobile concession stand at the Corona del Mar State
Beach. Flavor Rush agrees to accept the Premises in an "as is" condition as tendered
by City. Flavor Rush agrees that no representations with respect to the condition or
improvements of the Premises have been made by City except as specifically set forth
in this Agreement.
4. RENT
In consideration for this license to operate a mobile concession stand, Flavor
Rush agrees to pay City five percent (5 %) of its gross sales as rent. Rent shall be
payable at the office of the City's Cashiering Division at 3300 Newport Boulevard,
Newport Beach, California on or before Monday, August 29, 2011, or on such other date
as the parties may agree upon.
5. PERSONNEL
Flavor Rush shall be responsible for hiring the necessary personnel to operate
the mobile concession stand. Flavor Rush shall comply with all federal, state, and local
laws related to minimum wage, social security, nondiscrimination, ADA, unemployment
compensation, and workers' compensation.
6. INDEPENDENT CONTRACTOR
It is understood that Flavor Rush is an independent contractor and not an agent
or employee of City. Nothing in this Agreement shall be deemed to constitute approval
for Flavor Rush or any of Flavor Rush employees or agents, to be the agents or
employees of City. City shall have no interest in the business of Flavor Rush.
7. PARKING FOR EMPLOYEES
City shall provide four (4) designated parking spaces for Flavor Rush employees.
Flavor Rush shall cause its employees to comply with the procedures and regulations
established by City from time -to -time to control parking.
8. PERMITS & COMPLIANCE WITH LAW
Flavor Rush shall obtain, and be responsible for the costs for all permits required
to operate the mobile concession stand, including but not limited to an Orange County
health department permit. Flavor Rush shall at its own cost and expense comply with
all statutes, ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all services performed by Flavor Rush shall conform to applicable
City, county, state and federal laws, rules, regulations and permit requirements.
9. TAXES
Flavor Rush shall pay directly to the appropriate taxing authorities all taxes
applicable to this Agreement or the mobile concession stand contemplated herein.
10. UTILITIES
Flavor Rush may use City's electricity, water, and trash enclosures or public
trash cans free of charge, provided however, that City may, at City's discretion, require
Flavor Rush to arrange for its own refuse collection.
11. MAINTENANCE OF PREMISES
Flavor Rush agrees that it will keep the Premises and adjacent areas in good
condition and will regularly pick up trash and debris in the vicinity of the mobile
concession stand.
12. INDEMNITY AND EXCULPATION; INSURANCE
12.1 Hold- Harmless Clause. Flavor Rush agrees to indemnify, defend and hold
harmless the City and its employees, volunteers, appointed officials, and City Council
members (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'; collectively, "Claims "), which may arise from or in any manner relate (directly
or indirectly) to Flavor Rush occupation and use of the Premises or adjacent area,
specifically including, without limitation, any claim, liability, loss, or damage arising by
reason of:
(a) The death or injury of any person or damage to personal property
caused or allegedly caused by the condition of the Premises or an act or omission of
Flavor Rush or an agent, contractor, subcontractor, supplier, employee, servant, or
concessionaire of Flavor Rush;
(b) Any work performed on the Premises or materials furnished to the
Premises at the request of Flavor Rush or any agent or employee of Flavor Rush, with
the exception of maintenance performed by City; and /or
(c) Flavor Rush's failure to perform any provision of this Agreement or
to comply with any requirement of law or any requirement imposed on the Premises by
any duly authorized governmental agency or political subdivision.
Flavor Rush's obligations pursuant to this Subsection shall not extend to
any Claim proximately caused by the sole negligence, willful misconduct, or unlawful or
fraudulent conduct on the part of the Indemnified Parties.
12.2 Exculpation of City. Except as otherwise expressly provided in this
Agreement, City shall not be liable to Flavor Rush for any damage to Flavor Rush or
Flavor Rush's property from any cause other than the sole negligence, intentional or
willful acts of the Indemnified Parties. Except as otherwise expressly provided in this
Agreement, Flavor Rush waives all claims against the Indemnified Parties arising for
any reason other than the sole negligence, intentional or willful acts of the Indemnified
Parties. City shall not be liable to Flavor Rush for any damage to the Premises, Flavor
Rush property, Flavor Rush goodwill, or Flavor Rush business income, caused in whole
or in part by acts of nature including, without limitation, waves, wind and ocean currents.
12.3 Insurance. Flavor Rush shall obtain, provide and maintain at its own
expense during the term of this Agreement, a policy or policies of liability insurance of
the type and amounts described below and in a form satisfactory to City.
(a) Certificates of Insurance. Flavor Rush shall provide certificates of
insurance with original endorsements to City as evidence of the insurance coverage
required herein. Current certification of insurance shall be kept on file with City at all
times during the term of this Agreement.
(b) Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
(c) 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.
(d) Coverage Requirements.
(1) Workers' Compensation Coverage. Flavor Rush shall
maintain Workers' Compensation Insurance at statutory limits and Employer's Liability
Insurance at One Million and 00/100 Dollars ($1,000,000.00) for its employees in
accordance with the laws of the State of California. Any notice of cancellation or non -
renewal of all Workers' Compensation policies must be received by City at least thirty
(30) calendar days (ten (10) calendar days written notice of non - payment of premium)
prior to such change. The insurer shall agree to waive all rights of subrogation against
City, its officers, agents, employees and volunteers for all losses that relate in any way
to this Agreement.
(2) General Liability Coverage. Flavor Rush shall maintain
commercial general liability insurance in an amount not less than Two Million and
00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and
property damage, including without limitation, contractual liability. If commercial general
liability insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the services to be performed under this
Agreement, or the general aggregate limit shall be at least twice the required
occurrence limit.
(3) Automobile Liability Coverage. Flavor Rush shall maintain
automobile insurance covering bodily injury and property damage for all activities of the
Flavor Rush arising out of or in connection with the services to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in
an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00)
combined single limit for each occurrence.
(4) Fire and Extended Coverage. Flavor Rush shall maintain
fire and extended coverage insurance, together with insurance against vandalism, theft
and malicious mischief, on the improvements and fixtures, alterations, trade fixtures,
signs, equipment, personal property and inventory on or upon the Premises from loss or
damage to the extent of their full replacement value.
(e) Endorsements. Each insurance policy shall be endorsed with the
following specific language:
(1) The City, its elected or appointed officers, officials,
employees, agents and volunteers, and the State of California, its elected or appointed
officers, officials, employees, agents and volunteers, are to be covered as additional
insureds, with respect to liability arising out of services performed by or on behalf of
Flavor Rush.
(2) This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials, employees, agents and
volunteers as respects to all claims, losses, or liability arising directly or indirectly from
Flavor Rush operations or services provided under this Agreement. Any insurance
maintained by City, including any self- insured retention City may have, shall be
considered excess insurance only and not contributory with the insurance provided
hereunder.
(3) This insurance shall act for each insured and additional
insured as though a separate policy had been written for each, except with respect to
the limits of liability of the insuring company.
(4) The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents and volunteers.
(5) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its elected or appointed officers, officials,
employees, agents or volunteers.
(6) The insurance provided by this policy shall not be
suspended, voided, canceled, or reduced in coverage or in limits, by either party except
after thirty (30) calendar days (ten (10) calendar days written notice of non - payment of
premium) written notice has been received by City.
(f) Timely Notice of Claims. Flavor Rush shall give City prompt and
timely notice of claim made or suit instituted arising out of or resulting from Flavor Rush
performance under this Agreement.
(g) Additional Insurance. Flavor Rush shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the work.
(h) Subcontractors. In the event Flavor Rush subcontracts, the
contract between Flavor Rush and such subcontractor shall require the subcontractor to
maintain the same policies of insurance that Flavor Rush is required to maintain
pursuant to this Section.
13. SUBJECT TO STATE OPERATING AGREEMENT
The Premises and adjacent areas are located on property that is the subject of
an Operating Agreement from the State of California to the City. Flavor Rush shall not
take any action that would cause the City to be in violation of any provisions of that
Operating Agreement. If the State of California terminates the Operating Agreement,
this Agreement shall terminate as a result and the parties shall be released from all
liabilities and obligations under this Agreement.
14. WASTE OR NUISANCE
Flavor Rush shall not commit or permit the commission of any waste on the
Premises or adjacent areas. Flavor Rush shall not maintain, commit, or permit any
nuisance as defined in Section 3479 of the California Civil Code on the Premises or
adjacent areas. Flavor Rush shall not use or permit the use of the Premises or adjacent
areas for any unlawful purpose.
15. 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.
16. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California. Any action brought relating to this Agreement shall be adjudicated in a court
of competent jurisdiction in the County of Orange.
17. ENTIRE AGREEMENT; AMENDMENTS
17.1 The terms and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire agreement of the
parties with respect to the subject matter of this Agreement.
17.2 This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Flavor Rush and City.
17.3 No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way of a written
amendment to this Agreement.
17.4 The terms and conditions of this Agreement shall not be altered or
modified except by a written amendment to this Agreement signed by Flavor Rush and
City and approved as to form by the City Attorney.
17.5 This Agreement's term may be extended by the parties via written
amendment signed by both parties and approved as to form by the City Attorney,
17.6 This Agreement may be terminated at any time by City with or without
cause. Flavor Rush may only terminate this Agreement for cause.
18. 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 parry by reason of
the authorship of this Agreement or any other rule of construction which might otherwise
apply.
19. NO ATTORNEYS FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be
entitled to recover its attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ATTEST:
�-
Leilani Brown
City Clerk
CITY OF NEWPORT BEACH
a California Municipal Corporation
By: 1--� 6- LL— I N
D d Kiff
City Manager
FLAVOR RUSH
a California Corporation
By:
Ted Rodri3uez
APPROVED AS TO FORM: President
e of the City Attomey
8`l 11 By:
Leonie Mulvihill
Assistant City Attorney
%I\
Secretary
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CERTIFICATE OF LIABILITY INSURANCE
DATE0803/11YYY)
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policytes) must be endorsed. N SUBROGATION IS WANED, subject to
the terms and conditions of the polity, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder In lieu of such endorsement(sJ
PRODUCER
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First Point Insurance Services
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P.O. BOX 39776
INSUR 5 AFFORDING COVERAGE
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Downey, CA 90239
INSURER A: Infinity Salad Insurance Co
MED EXP (Any one rcan
Phone 5629283947 Fax 562)928 -9965
INSURED
INSURER B: Century Surety Company
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INSURER D:
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4570 Campos Drive
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INSURER E:
NSURER F:
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COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
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,
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DESCRIPTION OF OPERATIONS I LOCATIONS /VEHICLES (Attach ACORD 101, Additional Remarks Schedula, M more space Is required)
A. 1999 Chevrolet P30 Vln# 1 GBJP32Y9X3305630 $80,000 Deductible $1,00
-- CERTIFICATE HOLDER IS NAMED AS ADDITIONAL INSURED •••"
City of Newport Beach
ACORD 25 (2010106) OF
CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
0 1988-204,0 ACORD CORPORATION. All rights reserved.
The ACORD eme and logo are registered marks of ACORD
Infinity Cornmercial Auto
11700 Great Oaks 'Way
Alpharetta, GA 30022
Underwritten by: li finity Selaci insuran::e Company
Cuamlxr &mce: 1500? 7224D)I Clni!ns Service: 1 '!fil Jai -If•GI
COMMERCIAL AUTO DECLARATION
POLICY NUMBER: 504,61003-0160-001
THEODORE RODRIGUEZ JR DBA FLAVOR RUSH TRUCK POLICY PERIOD: 12/01 /2010 1,0 12/0112011
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ENDORSEMENTS MADE A PART OF THIS POLICY:
50`51 POLO
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AMEND DATE: 12/01/10
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From: 9492220750 Page: 119 Date: 7/15/2011 2:32:51 PM
Corona t el Mar Concession License Agreement
This Corona del Mar Concession License Agreement ( "Agreement ") is made and
entered into as of the 8th day of July, 2011, by and between the City of Newport Beach,
a California municipal corporation ( "City ") and Wahoo's Fish Taco, a California limited
liability company whose principal place of business is located at 2855 Pullman Street,
Santa Ana, California 92705 ( "Wahoo's ").
RECITALS
A. -The City manages the concession operations at Corona del Mar State
Beach pursuant to an' Operating Agreement between the City and the State of
California, dated August 1, 1999.
B. The City iis in the process of securing a long -term tenant to provide
concessions at the one thousand forty -three (1,043) square foot concession facility
located at Corona del Mar State Beach, depicted on Exhibit "A" and incorporated herein
by this reference ( "Premises ").
C. The City will not complete its search for a long -term tenant at the Corona
del Mar State Beach in time for summer 2011.
D. The City i Council of the City of Newport Beach authorized the City
Manager at its May 24,;2011 City Council meeting to enter into a temporary concession
agreement to ensure the City's residents and visitors have adequate services available
at the Corona del Mar State Beach.
E. The City desires to engage Wahoo's to provide temporary concessions at
the Corona del Mar State Beach while the City continues its search for a long -term
tenant.
F. Wahoo's desires to provide temporary concessions at the Corona del Mar
State Beach and has the experience and resources to appropriately serve the
beachgoing public.
AGREEMENT
NOW, THEREFORE, it is mutually agreed by and between the City and Wahoo's
as follows:
1. INCORPORATION OF RECITALS
The parties acknowledge the Recitals provided above are true and correct and
are incorporated into the operative part of this Agreement.
This fax was received by FAX -CNB on Line 3 from 9492220750
From: 9492220750 Page: 219 Date: 7 /15/2011 2:32:51 PM
2. TERM
The term of thisAgreement shall be for Saturday and Sunday, July 9 and 10,
2011; Saturday and Sunday, July 16 and 17, 2011; Saturday and Sunday, July 30 and
31, 2011; and August 22 through September 6, 2011, and any other date before the end
of October-, 2011 as mutually agreed -to and unless extended or terminated as provided
herein. aofr -4 M W.
.1-M711Q'1,
3. GRANT OF LICENSE
City grants Wahoo's a revocable license to occupy space adjacent to the
Premises for the purposes of operating a mobile concession stand. City also grants
Wahoo's a license to;use the interior of the Premises for the purposes of storing
supplies and material for the mobile concession stand. Wahoo's may sell food and non-
alcoholic beverages at its mobile concession stand. Under no circumstances may
Wahoo's sell or distribute alcoholic beverages. At a minimum, Wahoo's shall operate its
mobile concession stand between the hours of 11:00 a.m. and 4:00 p.m., except for
rainy conditions, in which event Wahoo's may operate its Concession at its discretion.
Wahoo's may choose to keep the concession open earlier or later than the noted hours
provided that Wahoo's does not remain operating in the space after the beach is closed.
City finds it to be in the public interest and consistent with park uses to grant this
revocable license to operate a mobile concessiun stand at the Corona del Mar State
Beach. Wahoo's agrees to accept the Premises in an "as is" condition as tendered by
City. Wahoo's agrees that no representations with respect to the condition or
improvements of the Premises have been made by City except as specifically set forth
in this Agrcement.
4. RENT
In consideration for this license to operate a mobile concession stand, Wahoo's
agrees to pay City five percent (5 %) of its gross sales as rent. Rent shall be payable at
the office of the City's.Cashiering Division at 3300 Newport Boulevard, Newport Beach,
California on or before Tuesday, September 13, 2011, or on such other date as the
parties may agree upon.
5. PERSONNEL
Wahoo's shall be responsible for hiring the necessary personnel to operate the
mobile concession stand. Wahoo's shall comply with all federal, state, and local laws
related to minimum wage, social security, nondiscrimination, ADA, unemployment
compensation, and workers' compensation.
6. INDEPENDENT CONTRACTOR
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TERM
The term of WsiAgreement shell be for Satuday and Sunday, July 9 and 9a,
2011; Saturday and Sunday, July 10 and 17, 2011; Saturday and Sunday, July 30 and
S1, 2019; an6 Au)auSt 2d th rough S9ptember 0, 2011, and any other date before ills and
of Gets 1 as rrtdmily agreed -to and unless extended or terminated ac provided /
• herein. �,e" Ji/
S. GRANT OFfLIC6NSS
City grants Wahods a mN=ble License to occupy space adfacent to the
Premises for the purposes of operatng a mobile coneesrefon stand. City also grants
MUD% a license to;use the Interior of the Premises for the' purposes of storing
supplies and material for the mobile concession stand. Wahoo's may sell food and non-
alcoholic beverages-at its mobile concession stand. Under no cutumstances may
Wahoo'o sell or distribute all ohollo beverages. At a minimum. Webods shall operate its
mohlle concesaion•stapd between the hours of 11:00 &m. and 4.00 p.m., except for
rainy condkloas, in which event Wahoo's may oparete its aonce8sian at ice discrett ri.
Wahoo's may choose do keep the concession open earlier or later than the noted hours
provided that Wahoo'a does not remain operating in the space ~. the beach is closed.
City finds it to be in the public intarad and consistent with park uses to grant this
revocable license 20 opevata a moDIM canoesslon stand at the Ccrrens del iwsr OMs
Booth. Wahao's agrees to script the Pr09nicas in an 'm ie contlibon as tendered by
CKy. Wahea's agrsus that tee represontedona with reaps t to the, cordilibn or
improvements of Nis Premises have been made by City except as speoincally set forth
in this Agroamard.
4. RENT
In consdderation for this License to operate a mobile concession stand, Wahoo's
agrees to pay City �,Tive• percem (S%) of @c gross sales w rent Rem shall be payable at
the office or the City's -Cashierirre Civioian et 3300 Nowport Doulevard, Newpwi Beach, '
Cafrt mia on or before Tuesday, Septembor 18, 2091, or on much other date as the
parties may aurae Lgmh.
5. PJeRS9A4N�L ,
Wahoo's straw be responsible for hiring the necassary personnel 10 operate the
mobile concewion stand. Wahoo's shall comply with all federal, state, and local laws
related to minimum wage, social security, norrdiscrtmination, ABA, unernployrnent
ogrripensavon, and waft L' compensation.
S. INDEPP-MiNT CONTF9CTOR
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It is understood, that Wahoo's is an independent contractor and not an agent or
employee of City. Nothing in this Agreement shall be deemed to constitute approval for
Wahoo's or any of Wahoo's employees or agents, to be the agents or employees of
City. City shall have no interest in the business of Wahoo's.
7. PARKING FOR! EMPLOYEES
City shall provi6e four (4) designated parking spaces for Wahoo's employees.
Wahoo's shall causeits employees to comply with the procedures and regulations
established by City from time -to -time to control parking.
8. PERMITS & COMPLIANCE WITH LAW
Wahoo's shall obtain, and be responsible for the costs for all permits required to
operate the mobile concession stand, including but not limited to an Orange County
health department permit. Wahoo's shall at its own cost and expense comply with all
statutes, ordinances,: regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition,: all services performed by Wahoo's shall conform to applicable
City, county, state and: federal laws, rules, regulations and permit requirements.
9. TAXES
Wahoo's shall. pay directly to the appropriate taxing authorities all taxes
applicable to this Agreement or the mobile concession stand contemplated herein.
10. UTILITIES
Wahoo's may Use City's electricity, water, and trash enclosures or public trash
cans free of charge,, provided however, that City may, at City's discretion, require
Wahoo's to arrange for its own refuse collection.
11. MAINTENANCE OF PREMISES
Wahoo's agrees that it will keep the Premises and adjacent areas in good
condition and will regularly pick up trash and debris in the vicinity of the mobile
concession stand.
12. INDEMNITY AND EXCULPATION; INSURANCE
12.1 Hold- Harmless Clause. Wahoo's agrees to indemnify, defend and hold
harmless the City and its employees, volunteers, appointed officials, and City Council
members (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
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From: 9492220750 Page: 4/9 Date: 7/15/2011 2:32:52 PM
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a "Claim "; collectively, "Claims "), which may arise from or in any manner relate (directly
or indirectly) to Wahob's occupation and use of the Premises or adjacent area,
specifically including, without limitation, any claim, liability, loss, or damage arising by
reason of:
(a) The death or injury of any person or damage to personal property
caused or allegedly caused by the condition of the Premises or an act or omission of
Wahoo's or an agent, contractor, subcontractor, supplier, employee, servant, or
concessionaire of Wahoo's;
(b) Any work performed on the Premises or materials furnished to the
Premises at the request of Wahoo's or any agent or employee of Wahoo's, with the
exception of maintenance performed by City; and /or
(c) Wahoo's's failure to perform any provision of this Agreement or to
comply with any requirement of law or any requirement imposed on the Premises by
any duly authorized governmental agency or political subdivision.
Wahoo's's obligations pursuant to this Subsection shall not extend to any
Claim proximately caused by the sole negligence, willful misconduct, or unlawful or
fraudulent conduct on the part of the Indemnified Parties.
12.2 Exculpation of City. Except as otherwise expressly provided in this
Agreement, Clty shall not be liable to Wahoo's for any damage to Wahoo's or
Wahoo's's property from any cause other than the sole negligence, intentional or willful
acts of the Indemnified Parties. Except as otherwise expressly provided in this
Agreement, Wahoo's waives all claims against the Indemnified Parties arising for any
reason other than the sole negligence, intentional or willful acts of the Indemnified
Parties. City shall not be liable to Wahoo's for any damage to the Premises, Wahoo's
property, Wahoo's goodwill, or Wahoo's business income, caused in whole or in part by
acts of nature including, without limitation, waves, wind and ocean currents.
12.3 Insurance. Wahoo's shall obtain, provide and maintain at its own expense
during the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
(a) Certificates of Insurance. Wahoo's shall provide certificates of
insurance with original endorsements to City as evidence of the insurance coverage
required herein. Current certification of insurance shall be kept on file with City at all
times during the term of this Agreement.
(b) Signature. A person authorized by the insurer to hind coverage on its
behalf shall sign certification of all required policies.
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(c) 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.
(d) Coverage Requirements.
(1) Workers' Compensation Coverage. Wahoo's shall maintain
Workers' Compensation Insurance at statutory limits and Employer's Liability Insurance
at one Million and 00/100 Dollars ($1,000,000.00) for its employees in accordance with
the laws of the State of California. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least thirty (30) calendar
days (ten (10) calendar days written notice of non - payment of premium) prior to such
change. The insurer shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for all losses that relate in any way to this
Agreement.
(2) General Liability Coverage. Wahoo's shall maintain
commercial general liability insurance in an amount not less than Two Million and
00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal Injury, and
property damage, including without limitation, contractual liability. If commercial general
liability insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the services to be performed under this
Agreement, or the general aggregate limit shall be at least twice the required
occurrence limit.
(3) Automobile Liability Coverage. Wahoo's shall maintain
automobile insurance covering bodily injury and property damage for all activities of the
Wahoo's arising out of or in connection with the services to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in
an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000.00)
combined single limit for each occurrence.
(4) Fire and Extended Coverage. Wahoo's shall maintain fire
and extended coverage insurance, together with insurance against vandalism, theft and
malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs,
equipment, personal property and inventory on or upon the Premises from loss or
damage to the extent of their full replacement value.
(e) Endorsements. Each Insurance policy shall be endorsed with the
following specific language:
(1) The City, its elected or appointed officers, officials,
employees, agents and volunteers, and the State of California, its elected or appointed
officers, officials, employees, agents and volunteers, are to be covered as additional
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insureds, with respect'to liability arising out of services performed by or on behalf of
Wahoo's.
(2) This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials, employees, agents and
volunteers as respects to all claims, losses, or liability arising directly or indirectly from
Wahoo's operations or services provided under this Agreement. Any insurance
maintained by City, including any self- insured retention City may have, shall be
considered excess insurance only and not contributory with the insurance provided
hereunder.
(3) This insurance shall act for each insured and additional
insured as though a separate policy had been written for each, except with respect to
the limits of liability of the insuring company.
(4) The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents and volunteers.
(5) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its elected or appointed officers, officials,
employees, agents or volunteers.
(0) The insurance provided by this policy shall not be
suspended, voided, canceled, or reduced in coverage or in limits, by either party except
after thirty (30) calendar days (ten (10) calendar days written notice of non - payment of
premium) written notice has been received by City.
(f) Timely Notice of Claims. Wahoo's shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from Wahoo's
performance under this Agreement.
(g) Additional Insurance. Wahoo's shall also procure and maintain, at
its own cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the work.
(h) Subcontractors. In the event Wahoo's subcontracts, the contract
between Wahoo's and such subcontractor shall require the subcontractor to maintain
the same policies of insurance that Wahoo's is required to maintain pursuant to this
Section.
13. SUBJECT TO STATE OPERATING AGREEMENT
The Premises and adjacent areas are located on property that is the subject of
an Operating Agreement from the State of California to the City. Wahoo's shall not take
any action that would cause the City to be in violation of any provisions of that
Operating Agreement. If the State of California terminates the Operating Agreement,
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this Agreement shall terminate as a result and the parties shall be released from all
liabilities and obligations under this Agreement.
14. WASTE OR NUISANCE
Wahoo's shall not commit or permit the commission of any waste on the
Premises or adjacent :areas. Wahoo's shall not maintain, commit, or permit any
nuisance as defined in Section 3479 of the California Civil Code on the Premises or
adjacent areas. Wahoo's shall not use or permit the use of the Premises or adjacent
areas for any unlawful purpose.
15. 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.
16. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California. Any action brought relating to this Agreement shall be adjudicated in a court
of competent jurisdiction in the County of Orange.
17, ENTIRE AGREEMENT; AMENDMENTS
17.1 The terms and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire agreement of the
parties with respect to the subject matter of this Agreement.
172 This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Wahoo's and City.
17.3 No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way of a written
amendment to this Agreement.
17.4 The terms and conditions of this Agreement shall not be altered or
modified except by a written amendment to this Agreement signed by Wahoo's and City
and approved as to form by the City Attorney.
17.5 This Agreement's term may be extended by the parties via written
amendment signed by both parties and approved as to form by the City Attorney.
17.6 This Agreement may be terminated at any time by City with or without
cause. Wahoo's may only terminate this Agreement for cause.
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18. 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 this Agreement or any other rule of construction which might otherwise
apply.
19. NO ATTORNEYS FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be
entitled to recover its attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CITY OF NEWPORT BEACH
a Municipal Corporation
ATTEST:
4
Leilani Brown
City Clerk SEW �Ra
APPROVED AS TO FORM:
Office of the City Attorney
a' -711 l �
reonie Mulvihill /
Assistant City Attomey
By: Z l� jl�fZdh
daJid Kiff 1
City Manager v
WAHOO'S FISH TACO
a California Limited Liability Company
By. U G�
mg Lam
Co- Founder and Partner
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Corona del Mar Concession License agreement
This Corona del Mar Concession License Agreement ( "Agreement ") is made and
entered into as of the 26th day of May, 2011, by and between the City of Newport
Beach, a California municipal corporation ( "City ") and Wahoo's Fish Taco, a California
limited liability company whose principal place of business is located at 3519 Pullman
Street, Santa Ana, California 92705 ( "Wahoo's ").
RECITALS
A. The City manages the concession operations at Corona del Mar State
Beach pursuant to an Operating Agreement between the City and the State of
California, dated August 1, 1999.
B. The City is in the process of securing a long -term tenant to provide
concessions at the one thousand forty -three (1,043) square foot concession facility
located at Corona del Mar State Beach, depicted on Exhibit "A" and incorporated herein
by this reference ( "Premises ").
C. The City will not complete its search for a long -term tenant at the Corona
del Mar State Beach in time for the official start of summer, Memorial Day weekend.
D. The City Council of the City of Newport Beach authorized the City
Manager at its May 24, 2011 City Council meeting to enter into a temporary concession
agreement to ensure the City's residents and visitors have adequate services available
at the Corona del Mar State Beach.
E. The City desires to engage Wahoo's to provide temporary concessions at
the Corona del Mar State Beach while the City continues its search for a long -term
tenant.
F. Wahoo's desires to provide temporary concessions at the Corona del Mar
State Beach and has the experience and resources to have concessions in place by
Memorial Day weekend.
AGREEMENT
NOW, THEREFORE, it is mutually agreed by and between the City and Wahoo's
as follows:
1. INCORPORATION OF RECITALS
The parties acknowledge the Recitals provided above are true and correct and
are incorporated into the operative part of this Agreement.
2. TERM
The term of this Agreement shall be for thirty (30) days unless extended or
terminated as provided herein.
3. GRANT OF LICENSE
City grants Wahoo's a revocable license to occupy space adjacent to the
Premises for the purposes of operating a mobile concession stand. City also grants
Wahoo's a license to use the interior of the Premises for the purposes of storing
supplies and material for the mobile concession stand. Wahoo's may sell food and non-
alcoholic beverages at its mobile concession stand. Under no circumstances may
Wahoo's sell or distribute alcoholic beverages. At a minimum, Wahoo's shall operate its
mobile concession stand between the hours of 11:00 a.m. and 4:00 p.m. on May 28, 29,
and 30'h. [t f hl er Fvrr- ' W pwsla�b�
City finds it to be in the public interest and consistent with park uses to grant this
revocable license to operate a mobile concession stand at the Corona del Mar State
Beach. Wahoo's agrees to accept the Premises in an "as is" condition as tendered by
City. Wahoo's agrees that no representations with respect to the condition or
improvements of the Premises have been made by City except as specifically set forth
in this Agreement.
4. RENT
In consideration for this license to operate a mobile concession stand, Wahoo's
agrees to pay City five percent (5 %) of its gross sales as rent. Rent shall be payable at
the office of the City's Cashiering Division at 3300 Newport Boulevard, Newport Beach,
California on or before Thursday, June 30, 2011, or on such other date as the parties
may agree upon.
5. PERSONNEL
Wahoo's shall be responsible for hiring the necessary personnel to operate the
mobile concession stand. Wahoo's shall comply with all federal, state, and local laws
related to minimum wage, social security, nondiscrimination, ADA, unemployment
compensation, and workers' compensation.
INDEPENDENT CONTRACTOR
It is understood that Wahoo's is an independent contractor and not an agent or
employee of City. Nothing in this Agreement shall be deemed to constitute approval for
Wahoo's or any of Wahoo's employees or agents, to be the agents or employees of
City. City shall have no interest in the business of Wahoo's.
i
5
-i
i
PARKING FOR EMPLOYEES
City shall provide four (4) designated parking spaces for Wahoo's employees.
Wahoo's shall cause its employees to comply with the procedures and regulations
established by City from time -to -time to control parking.
8. PERMITS & COMPLIANCE WITH LAW
Wahoo's shall obtain, and be responsible for the costs for all permits required to
operate the mobile concession stand, including but not limited to an Orange County
health department permit. Wahoo's shall at its own cost and expense comply with all
statutes, ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all services performed by Wahoo's shall conform to applicable
City, county, state and, federal laws, rules, regulations and permit requirements.
9. TAXES
Wahoo's shall pay directly to the appropriate taxing authorities all taxes
applicable to this Agreement or the mobile concession stand contemplated herein.
10. UTILITIES
Wahoo's may use City's electricity, water, and trash enclosures or public trash
cans free of charge, provided however; that City may, at City's discretion, require
Wahoo's to arrange for its own refuse collection.
11. MAINTENANCE OF PREMISES
Wahoo's agrees that it will keep the Premises and adjacent areas in good
condition and will regularly pick up trash and debris in the vicinity of the mobile
concession stand.
12. INDEMNITY AND EXCULPATION; INSURANCE
12.1 Hold- Harmless Clause. Wahoo's agrees to indemnify, defend and hold
harmless the City and its employees, volunteers, appointed officials, and City Council
members (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 "; collectively, "Claims "), which may arise from or in any manner relate (directly
or indirectly) to Wahoo's occupation and use of the Premises or adjacent area,
specifically including, without limitation, any claim, liability, loss, or damage arising by
reason of:
(a) The death or injury of any person or damage to personal property
caused or allegedly caused by the condition of the Premises or an act or omission of
Wahoo's or an agent, contractor, subcontractor, supplier, employee, servant, or
concessionaire of Wahoo's;
(b) Any work performed on the Premises or materials furnished to the
Premises at the request of Wahoo's or any agent or employee of Wahoo's, with the
exception of maintenance performed by City; and /or
(c) Wahoo's's failure to perform any provision of this Agreement or to
comply with any requirement of law or any requirement imposed on the Premises by
i any duly authorized governmental agency or political subdivision.
Wahoo's's obligations pursuant to this Subsection shall not extend to any
Claim proximately caused by the sole negligence, willful misconduct, or unlawful or
fraudulent conduct on the part of the Indemnified Parties.
12.2 Exculpation of City. Except as otherwise expressly provided in this
Agreement, City shall not be liable to Wahoo's for any damage to Wahoo's or
Wahoo's's property from any cause other than the sole negligence, intentional or willful
acts of the Indemnified Parties. Except as otherwise expressly provided in this
Agreement, Wahoo's waives all claims against the Indemnified Parties arising for any
reason other than the sole negligence, intentional or willful acts of the Indemnified
Parties. City shall not be liable to Wahoo's for any damage to the Premises, Wahoo's
property, Wahoo's goodwill, or Wahoo's business income, caused in whole or in part by
i acts of nature including, without limitation, waves, wind and ocean currents.
12.3 Insurance. Wahoo's shall obtain, provide and maintain at its own expense
during the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
(a) Certificates of Insurance. Wahoo's shall provide certificates of
insurance with original endorsements to City as evidence of the insurance coverage
required herein. Current certification of insurance shall be kept on file with City at all
times during the term of this Agreement.
(b) Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
(c) 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.
(d) Coverage Requirements.
(1) Workers' Compensation Coverage. Wahoo's shall maintain
Workers' Compensation Insurance at statutory limits and Employer's Liability Insurance
at One Million and 001100 Dollars ($1,000,000.00) for its employees in accordance with
the laws of the State of California. Any notice of cancellation or non- renewal of all
Workers' Compensation policies must be received by City at least thirty (30) calendar
days (ten (10) calendar days written notice of non - payment of premium) prior to such
change. The insurer shall agree to waive all rights of subrogation against City, its
officers, agents, employees and volunteers for all losses that relate in any way to this
Agreement.
(2) General Liability Coverage. Wahoo's shall maintain
commercial general liability insurance in an amount not less than Two Million and
00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and
property damage, including without limitation, contractual liability. If commercial general
liability insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the services to be performed under this
Agreement, or the general aggregate limit shall be at least twice the required
occurrence limit.
(3) Automobile Liability Coverage. Wahoo's shall maintain
automobile insurance covering bodily injury and property damage for all activities of the
Wahoo's arising out of or in connection with the services to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in
an amount not less than Two Million Dollars and 00/100 Dollars ($2,000,000,00)
combined single limit for each occurrence.
(4) Fire and Extended Coverage. Wahoo's shall maintain fire
and extended coverage insurance, together with insurance against vandalism, theft and
malicious mischief, on the improvements and fixtures, alterations, trade fixtures, signs,
equipment, personal property and inventory on or upon the Premises from loss or
damage to the extent of their full replacement value.
(e) Endorsements. Each insurance policy shall be endorsed with the
following specific language:
(1) The City, its elected or appointed officers, officials,
employees, agents and volunteers, and the State of California, its elected or appointed
officers, officials, employees, agents and volunteers, are to be covered as additional
insureds, with respect to liability arising out of services performed by or on behalf of
Wahoo's.
(2) This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials, employees, agents and
volunteers as respects to all claims, losses, or liability arising directly or indirectly from
Wahoo's operations, or services provided under this Agreement. Any insurance
maintained by City, including any self- insured retention City may have, shall be
considered excess insurance only and not contributory with the insurance provided
hereunder.
(3) This insurance shall act for each insured and additional
insured as though a separate policy had been written for each, except with respect to
the limits of liability of the insuring company.
(4) The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents and volunteers.
(5) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its elected or appointed officers, officials,
employees, agents or volunteers.
(6) The insurance provided by this policy shall not be
suspended, voided, canceled; or reduced in coverage or in limits, by either party except
after thirty (30) calendar days (ten (10) calendar days written notice of non - payment of
premium) written notice has been received by City.
(f) Timely Notice of Claims. Wahoo's shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from Wahoo's
performance under this Agreement.
(g) Additional Insurance. Wahoo's shall also procure and maintain, at
its own cost and expense, any additional kinds of insurance, which in its own judgment
may be necessary for its proper protection and prosecution of the work.
(h) Subcontractors. In the event Wahoo's subcontracts, the contract
between Wahoo's and such subcontractor shall require the subcontractor to maintain
the same policies of insurance that Wahoo's is required to maintain pursuant to this
Section.
13. SUBJECT TO STATE OPERATING AGREEMENT
The Premises and adjacent areas are located on property that is the subject of
an Operating Agreement from the State of California to the City. Wahoo's shall not take
any action that would cause the City to be in violation of any provisions of that
Operating Agreement. If the State of California terminates the Operating Agreement,
this Agreement shall terminate as a result and the parties shall be released from all
liabilities and obligations under this Agreement.
14. WASTE OR NUISANCE
Wahoo's shall not commit or permit the commission of any waste on the
Premises or adjacent areas. Wahoo's shall not maintain, commit, or permit any
nuisance as defined in Section 3479 of the California Civil Code on the Premises or
adjacent areas. Wahoo's shall not use or permit the use of the Premises or adjacent
areas for any unlawful purpose.
15. 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.
16. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California. Any action brought relating to this Agreement shall be adjudicated in a court
jof competent jurisdiction in the County of Orange.
17. ENTIRE AGREEMENT; AMENDMENTS
17.1 The terms and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire agreement of the
parties with respect to the subject matter of this Agreement.
17.2 This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Wahoo's and City.
17.3 No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way of a written
amendment to this Agreement.
17.4 The terms and conditions of this Agreement shall not be altered or
modified except by a written amendment to this Agreement signed by Wahoo's and City
and approved as to form by the City Attorney.
17.5 This Agreement's term may be extended by the parties via written
amendment signed by both parties and approved as to form by the City Attorney.
17.6 This Agreement may be terminated at any time by City with or without
cause. Wahoo's may only terminate this Agreement for cause.
18. 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 this Agreement or any other rule of construction which might otherwise
apply.
19. NO ATTORNEYS FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be
entitled to recover its attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ATTEST:
Pi
J, ' UVV r"'
Leilani Brown
City Clerk .41707T
APPROVED AS TO FORM:
Office of the City Attorney
Leonia Mulvihill 51 2-7
Assistant City Attorney
CITY OF NEWPORT BEACH
a Municipal Corporation
By.
Davin Kiff
City Manager
WAHOO'S FISH TACO
a California Limited Liability Company
By: - 6.
ing Lam
Co- Founder and Partner
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CITY OF
VPN�EWPMT
NEWPORT BEACH
City Council Staff Report A Item No. 8
May°��;2C1
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Administrative Services Department
Tracy McCraner, Administrative Services Director/Treasurer
949 - 644 - 3123, tmccraner @newportbeachca.gov
PREPARED BY: Evelyn Tseng, Revenue Manager
APPROVED:
�,
TITLE: Grant City Manager authority to enter into concession agreement(s)
for Corona del Mar State Beach
ABSTRACT:
On April 8, 2011, the City issued a Request for Proposals for Concession Operations at
Corona del Mar State Beach ( "RFP "). The City received only one proposal - from Kilmer
Enterprises, Inc ( "Kilmer ") to serve cheeseburgers, hot dogs, fries, and similar types of
food. Rather than committing to a long -term agreement from a process that garnered
only one respondent, City staff is currently assessing the RFP process - including the
terms of the concession and the overall suitability of the facility In the interim, a
temporary solution to provide food during the summer months should be pursued
RECOMMENDATION:
Authorize the City Manager to enter into one (1) or more concession agreements from
May 27 through September 30, 2011, on terms approved by the Office of the City
Attorney.
FUNDING REQUIREMENTS:
The financial impact (if any) may be limited to lower rents and is not expected to be
significant.
DISCUSSION:
In 2006, the City upgraded and improved the infrastructure at Corona del Mar State
Beach, which includes a concession area intended to provide food /drink service to
beach visitors. The City contracted with Fuji Grill in 2008, to operate the concession at
Corona del Mar. In December 2010, Fuji Grill and the City mutually agreed to terminate
the agreement. At that time. Fuji Grill explained that Corona del Mar's parking lot
Grant City Manager authority to enter into concession agreement(s) for Corona del Mar
State Beach
May 24, 2011
Page 2
situation created difficulty in establishing a customer base during the off- season
months. Pursuant to the termination agreement, Fuji Grill removed several pieces of
equipment which it had paid for, including the refrigeration unit, ovens and broiler.
While the City respects Mr. Kilmer and would welcome a proposal from him in response
to a re- issued RFP, City staff believes that one response does not provide a competitive
context for the selection process associated with a long -term contract, and it is wise to
re -issue a revised RFP. The City's current economic development consultant is
assisting revenue staff in reframing the RFP to encourage more proposers. Staff will
also assess ways to mitigate the potential negative business conditions of Corona del
Mar concession (lack of off - season business and the expense of parking) and will
conduct an aggressive outreach effort to attract qualified bidders. City staff anticipates
that the RFP will be re- issued in the fall.
Summer is the busiest season at Corona del Mar State Beach. There are no convenient
options for the purchase of food or beverages to the public at that beach. In order to
address the need for food concessions as summer approaches, Revenue staff is
investigating options for this summer, but anticipates entering into one (1) or more
temporary lease agreements for the concession. Staff shall negotiate and contract with
reputable vendors with proven track records in the food service industry.
Staff anticipates a high level of interest by vendors and staff could establish a schedule
where different vendors would provide concessions. Staff does not foresee a significant
impact to restaurants in the Corona del Mar area given the location at the beach is far
removed from area restaurants.
Staff is requesting that Council authorize City Manager to enter into concession
agreements for the Corona del Mar facility, upon terms approved by the Office of the
City Attorney. Such terms shall include, but not be limited to, rent provisions, menu,
hours, and, because the kitchen is currently ill- suited for the provision of food without
costly tenant improvements, the possibility of the preparation of food in a mobile facility
in the Corona del Mar parking lot. The previous Fuji Grill agreement dedicated three (3)
parking spaces for concession staff, and those spaces could be used, without any
decrease in parking revenue, for the food preparation facility.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
Grant City Manager authority to enter into concession agreement(s) for Corona del Mar
State Beach
May 24, 2011
Page 3
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
'JU ��� I
Tracy McCraner
Administrative Services Director/Treasurer
CITY OF NEWPORT BEACH
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c9t�F0RN�'
City Manager's Office
(949) 644 -3001
July 22, 2011
Mr. Ted Rodriquez
Flavor Rush, d.b.a., Innovative Travel Planner, Inc.
4570 Campus Drive, Suite 52
Newport Beach, Ca 92660
Re: July 5, 2011 Corona del Mar Concession License Agreement Extension
Dear Mr. Rodriquez,
Pursuant to Section 2 (Term) of our July 5, 2011 Corona del Mar Concession License
Agreement, this letter extends the term of the agreement to include Monday, July 25 through
Friday, July 29, 2011.
Please sign below as confirmation that the Flavor Truck will provide temporary concessions as
stated above and return the original to Tara Finnigan, City Manager's Office, 3300 Newport
Blvd., Newport Beach, 92663.
Sincerely,
DaOdAff
City Manager
City of Newport Beach
Ted Pod 11 uez
.Viee-pr&§F�
Flavor Rush
City Hall • 3300 Newport Boulevard • Newport Beach, California 92663 -3884
LJ K ;, I ' A
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Corona del Idler Concession License Agreement
This Corona del Mar Concession License Agreement ( "Agreement ") is made and
entered into as of the 5th day of July, 2011, by and between the City of Newport Beach,
a California municipal corporation ( "City ") and Flavor Rush, d.b.a. for Innovative Travel
Planner, Inc., a California corporation whose principal place of business is located at
4570 Campus Drive, Suite 52, Newport Beach, California 92660 ( "Flavor Rush ").
RECITALS
A. The City manages the concession operations at Corona del Mar State
Beach pursuant to an Operating Agreement between the City and the State of
California, dated August 1, 1999.
B. The City is in the process of securing a long -term tenant to provide
concessions at the one thousand forty -three (1,043) square foot concession facility
located at Corona del Mar State Beach, depicted on Exhibit "A" and incorporated herein
by this reference ( "Premises ").
C. The City Council of the City of Newport Beach authorized the City
Manager at its May 24, 2011 City Council meeting to enter into a temporary concession
agreements to ensure the City's residents and visitors have adequate services available
at the Corona del Mar State Beach.
D. The City desires to engage Flavor Rush to provide temporary concessions
at the Corona del Mar State Beach while the City continues its search for a long -term
tenant.
E. Flavor Rush desires to provide temporary concessions at the Corona del
Mar State Beach and has the experience and resources to provide such temporary
concessions.
AGREEMENT
NOW, THEREFORE, it is mutually agreed by and between the City and Flavor
Rush as follows:
1. INCORPORATION OF RECITALS
The parties acknowledge the Recitals provided above are true and correct and
are incorporated into the operative part of this Agreement.
2. TERM
The term of this Agreement shall be for Wednesday through Friday, July 6
through July 8, 2011; Monday through Friday, July 11 through July 15, 2011; and
Monday through Sunday, July 18 through 24, 2011, unless extended or terminated as
provided herein.
The term of this Agreement specifically excludes July 9, 10, 16 and 17, 2011.
On or before July 18, 2011, Flavor Rush and City may mutually agree, in writing,
to extend the term of this Agreement to Monday through Friday, July 25 through 29,
2011.
3. GRANT OF LICENSE
City grants Flavor Rush a revocable license to occupy space adjacent to the
Premises for the purposes of operating a mobile concession stand. City also grants
Flavor Rush a license to use the interior of the Premises for the purposes of storing
supplies and material for the mobile concession stand. Flavor Rush may sell food and
non - alcoholic beverages at its mobile concession stand. Under no circumstances may
Flavor Rush sell or distribute alcoholic beverages. At a minimum, Flavor Rush shall
operate its mobile concession stand between the hours of 10:00 a.m. and 4:00 p.m.,
except in the event of rainy conditions, when Flavor Rush may operate its concession at
its discretion.
City finds it to be in the public interest and consistent with park uses to grant this
revocable license to operate a mobile concession stand at the Corona del Mar State
Beach. Flavor Rush agrees to accept the Premises in an "as is" condition as tendered
by City. Flavor Rush agrees that no representations with respect to the condition or
improvements of the Premises have been made by City except as specifically set forth
in this Agreement.
4. RENT
In consideration for this license to operate a mobile concession stand, Flavor
Rush agrees to pay City five percent (5 %) of its gross sales as rent. Rent shall be
payable at the office of the City's Cashiering Division at 3300 Newport Boulevard,
Newport Beach, California on or before August 8, 2011, or on such other date as the
parties may agree upon.
5. PERSONNEL
Flavor Rush shall be responsible for hiring the necessary personnel to operate
the mobile concession stand. Flavor Rush shall comply with all federal, state, and local
laws related to minimum wage, social security, nondiscrimination, ADA, unemployment
compensation, and workers' compensation.
6. INDEPENDENT CONTRACTOR
It is understood that Flavor Rush is an independent contractor and not an agent
or employee of City. Nothing in this Agreement shall be deemed to constitute approval
for Flavor Rush or any of Flavor Rush's employees or agents, to be the agents or
employees of City. City shall have no interest in the business of Flavor Rush.
7. PARKING FOR EMPLOYEES
City shall provide four (4) designated parking spaces for Flavor Rush's
employees. Flavor Rush shall cause its employees to comply with the procedures and
regulations established by City from time -to -time to control parking.
8. PERMITS & COMPLIANCE WITH LAW
Flavor Rush shall obtain, and be responsible for the costs for all permits required
to operate the mobile concession stand, including but not limited to an Orange County
health department permit. Flavor Rush shall at its own cost and expense comply with
all statutes, ordinances, regulations and requirements of all governmental entities,
including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all services performed by Flavor Rush shall conform to applicable
City, county, state and federal laws, rules, regulations and permit requirements.
9. TAXES
Flavor Rush shall pay directly to the appropriate taxing authorities all taxes
applicable to this Agreement or the mobile concession stand contemplated herein.
10. UTILITIES
Flavor Rush may use City's electricity, water, gas and trash enclosures or public
trash cans free of charge, provided however, that City may, at City's discretion, require
Flavor Rush to arrange for its own refuse collection.
11. MAINTENANCE OF PREMISES
Flavor Rush agrees that it will keep the Premises and adjacent areas in good
condition and will regularly pick up trash and debris in the vicinity of the mobile
concession stand.
12. INDEMNITY AND EXCULPATION; INSURANCE
12.1 Hold- Harmless Clause. Flavor Rush agrees to indemnify, defend and hold
harmless the City and its employees, volunteers, appointed officials, and City Council
members (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 "; collectively, "Claims "), which may arise from or in any manner relate (directly
or indirectly) to Flavor Rush's occupation and use of the Premises or adjacent area,
specifically including, without limitation, any claim, liability, loss, or damage arising by
reason of:
(a) The death or injury of any person or damage to personal property
caused or allegedly caused by the condition of the Premises or an act or omission of
Flavor Rush or an agent, contractor, subcontractor, supplier, employee, servant, or
concessionaire of Flavor Rush;
(b) Any work performed on the Premises or materials furnished to the
Premises at the request of Flavor Rush or any agent or employee of Flavor Rush's, with
the exception of maintenance performed by City; and /or
(c) Flavor Rush's failure to perform any provision of this Agreement or
to comply with any requirement of law or any requirement imposed on the Premises by
any duly authorized governmental agency or political subdivision.
Flavor Rush's obligations pursuant to this Subsection shall not extend to
any Claim proximately caused by the sole negligence, willful misconduct, or unlawful or
fraudulent conduct on the part of the Indemnified Parties.
12.2 Exculpation of City_ Except as otherwise expressly provided in this
Agreement, City shall not be liable to Flavor Rush for any damage to Flavor Rush or
Flavor Rush's property from any cause other than the sole negligence, intentional or
willful acts of the Indemnified Parties. Except as otherwise expressly provided in this
Agreement, Flavor Rush waives all claims against the Indemnified Parties arising for
any reason other than the sole negligence, intentional or willful acts of the Indemnified
Parties. City shall not be liable to Flavor Rush for any damage to the Premises, Flavor
Rush's property, Flavor Rush's goodwill, or Flavor Rush's business income, caused in
whole or in part by acts of nature including, without limitation, waves, wind and ocean
currents.
12.3 Insurance. Flavor Rush shall obtain, provide and maintain at its own
expense during the term of this Agreement, a policy or policies of liability insurance of
the type and amounts described below and in a form satisfactory to City.
(a) Certificates of Insurance. Flavor Rush shall provide certificates of
insurance with original endorsements to City as evidence of the insurance coverage
required herein. Current certification of insurance shall be kept on file with City at all
times during the term of this Agreement.
(b) Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
(c) 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.
(d) Coverage Requirements.
(1) Workers' Compensation Coverage. Flavor Rush shall
maintain Workers' Compensation Insurance at statutory limits and Employer's Liability
Insurance at One Million and 00/100 Dollars ($1,000,000.00) for its employees in
accordance with the laws of the State of California. Any notice of cancellation or non -
renewal of all Workers' Compensation policies must be received by City at least thirty
(30) calendar days (ten (10) calendar days written notice of non - payment of premium)
prior to such change. The insurer shall agree to waive all rights of subrogation against
City, its officers, agents, employees and volunteers for all losses that relate in any way
to this Agreement.
(2) General Liability Coverage. Flavor Rush shall maintain
commercial general liability insurance in an amount not less than Two Million and
00/100 Dollars ($2,000,000.00) per occurrence for bodily injury, personal injury, and
property damage, including without limitation, contractual liability. If commercial general
liability insurance or other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the services to be performed under this
Agreement, or the general aggregate limit shall be at least twice the required
occurrence limit.
(3) Automobile Liability Coverage. Flavor Rush shall maintain
automobile insurance covering bodily injury and property damage for all activities of
Flavor Rush's arising out of or in connection with the services to be performed under
this Agreement, including coverage for any owned, hired, non -owned or rented vehicles,
in an amount not less than Two Million Dollars and 00 /100 Dollars ($2,000,000.00)
combined single limit for each occurrence.
(4) Fire and Extended Coverage. Flavor Rush shall maintain
fire and extended coverage insurance, together with insurance against vandalism, theft
and malicious mischief, on the improvements and fixtures, alterations, trade fixtures,
signs, equipment, personal property and inventory on or upon the Premises from loss or
damage to the extent of their full replacement value.
(e) Endorsements. Each insurance policy shall be endorsed with the
following specific language:
(1) The City, its elected or appointed officers, officials,
employees, agents and volunteers, and the State of California, its elected or appointed
officers, officials, employees, agents and volunteers, are to be covered as additional
insureds, with respect to liability arising out of services performed by or on behalf of
Flavor Rush.
(2) This policy shall be considered primary insurance as
respects to City, its elected or appointed officers, officials, employees, agents and
volunteers as respects to all claims, losses, or liability arising directly or indirectly from
Flavor Rush's operations or services provided under this Agreement. Any insurance
maintained by City, including any self- insured retention City may have, shall be
considered excess insurance only and not contributory with the insurance provided
hereunder.
(3) This insurance shall act for each insured and additional
insured as though a separate policy had been written for each, except with respect to
the limits of liability of the insuring company.
(4) The insurer waives all rights of subrogation against City, its
elected or appointed officers, officials, employees, agents and volunteers.
(5) Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to City, its elected or appointed officers, officials,
employees, agents or volunteers.
(6) The insurance provided by this policy shall not be
suspended, voided, canceled, or reduced in coverage or in limits, by either party except
after thirty (30) calendar days (ten (10) calendar days written notice of non - payment of
premium) written notice has been received by City.
(f) Timely Notice of Claims. Flavor Rush shall give City prompt and
timely notice of claim made or suit instituted arising out of or resulting from Flavor
Rush's performance under this Agreement.
(g) Additional Insurance. Flavor Rush shall also procure and maintain,
at its own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the work.
(h) Subcontractors. In the event Flavor Rush subcontracts, the
contract between Flavor Rush and such subcontractor shall require the subcontractor to
maintain the same policies of insurance that Flavor Rush is required to maintain
pursuant to this Section.
13. SUBJECT TO STATE OPERATING AGREEMENT
The Premises and adjacent areas are located on property that is the subject of
an Operating Agreement from the State of California to the City. Flavor Rush shall not
take any action that would cause the City to be in violation of any provisions of that
Operating Agreement. If the State of California terminates the Operating Agreement,
this Agreement shall terminate as a result and the parties shall be released from all
liabilities and obligations under this Agreement.
14. WASTE OR NUISANCE
Flavor Rush shall not commit or permit the commission of any waste on the
Premises or adjacent areas. Flavor Rush shall not maintain, commit, or permit any
nuisance as defined in Section 3479 of the California Civil Code on the Premises or
adjacent areas. Flavor Rush shall not use or permit the use of the Premises or adjacent
areas for any unlawful purpose.
15. 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.
16. APPLICABLE LAW
This Agreement shall be construed in accordance with the laws of the State of
California. Any action brought relating to this Agreement shall be adjudicated in a court
of competent jurisdiction in the County of Orange.
17. ENTIRE AGREEMENT; AMENDMENTS
17.1 The terms and conditions of this Agreement, all exhibits attached, and all
documents expressly incorporated by reference, represent the entire agreement of the
parties with respect to the subject matter of this Agreement.
17.2 This Agreement shall supersede any and all prior agreements, oral or
written, regarding the subject matter between Flavor Rush and City.
17.3 No other agreement, promise or statement, written or oral, relating to the
subject matter of this Agreement, shall be valid or binding, except by way of a written
amendment to this Agreement.
17.4 The terms and conditions of this Agreement shall not be altered or
modified except by a written amendment to this Agreement signed by Flavor Rush and
City and approved as to form by the City Attorney.
17.5 This Agreement's term may be extended by the parties via written
amendment signed by both parties and approved as to form by the City Attorney.
17.6 This Agreement may be terminated at any time by City with or without
cause. Flavor Rush may only terminate this Agreement for cause.
18. 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 this Agreement or any other rule of construction which might otherwise
apply.
19. NO ATTORNEYS FEES
The prevailing party in any action brought to enforce the terms and conditions of
this Agreement, or arising out of the performance of this Agreement, shall not be
entitled to recover its attorneys' fees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
CITY OF NEWPORT BEACH
a Municipal Corporation
0
ATTEST:
Leita'ni Brown
City Clerk
APPROVED AS TO FORM:
Office of the City Attorney
Leonie Mulvihill
Assistant City Attorney
David Kiff
City Manager
Flavor Rush
a California Corporation
By
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