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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 tit- Lr- 1 46 OV4, U�CWFID CIMIX a-14 cx= I II 4-C -1 --W hMli1111 "A" Q) 77, tit- Lr- 1 46 OV4, U�CWFID CIMIX a-14 cx= I II 4-C -1 --W 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 CONTACT E N PNONE (562)928-9947 IFNAX N. I: (562)92 8-9965 First Point Insurance Services com P.O. BOX 39776 INSUR 5 AFFORDING COVERAGE NAIC0 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 ❑ INSURER C: S 2,000,000.00 Flavor Rush Truck INSURER D: S 2,01)(3,000.00 4570 Campos Drive S B Newport Beach, CA 92660. INSURER E: NSURER F: 12101/2010 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, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LLTTRR TYPE OF INSURANCE ADO am UB POLICY NUMBER MMIDDCYEFF MMDDNYYP LIMITS B GENERAL LIABILITY ❑ COMMERCIAL GENERAL LIABILITY ❑❑ ❑ CLAIMS -MADE R] OCCUR CCP- 719609 07/19/2011 07/192012 EACH OCCURRENCE S 1,000,000.00 DAMAGE TO RENTEID PREMISES eeccurrence $ l 00-ODD-OD MED EXP (Any one rcan 5 5,000.00 PERSONAL a ADV INJURY $ 1,000,000.00 ❑ GENERAL AGGREGATE S 2,000,000.00 GEN'L AGGREGATE LIMIT APPLIES PER: ❑ POLICY ❑PRO- ❑ LOG PRODUCTS - COMP /OP AGG S 2,01)(3,000.00 S B AUTOMOBILE LIABILITY ❑ ANY AUTO ❑ ALL OWNED Ri SACOEDULED ❑ HIRED AUTOS ❑ NON-OWNED El 504610030160001 12101/2010 12101/2011 COMBINED SINGLE LIMIT IF acatlant 1 000,000.DO BODILY INJURY (Per person) S BODILY INJURY (Per accident) S P OPPE13 t AMAGE $ $ ❑ UMBRELLA LIAR ❑ OCCUR ❑ EXCESS LIAB ❑ CLAIMS-MADE EACH OCCURRENCE S AGGREGATE $ DED RETENTION 5 S WORKERS COMPENSATION ANDEMPLOYf3tSLIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE OFRCER/MEMSER EXCLUDED? (Mandatory In NM) U.. .. describe under DESCRIPTION OF OPERATIONS below NIA ❑ WC STATU- OTH- LIMITS ER E.L. EACH ACCIDENT 5 E.L DISEASE - EA EMPLOYE S EL DISEASE - POLICY LIMIT $ 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 4570 CAMPUS DR This policy is effective no earlier than the data= and time on NEWPORT BEACH CA 92660 v ✓hick the aflplication is accepted by the Company and shall expire at 12;01 e.m. or,. the last day of the policy period Shown on the Declarations Page. If the policy is cancelled for nonpayment. it may be continued vjith or Without a iaose in coverage, contingent upon valid payment and in accordance with our underwriting rules. The iollowinn coverages and limits apply to each described vehicle as shown below. Coveranas are defined in the policy and are subject to the terms an(Tconditions contained In the policy, including amendments and endorsements. No changes will be effective prior to the time changes are requested. # Yr Make - Model Serial number COUCCOMIFTC # Driver Name DOS Exal SN22f 99 CHEVROLE P30 1 G0.)P32Y9x3305630 1000 r NIA 1 100^ 1 Thaodom Rooripuw jr C »12 B/i 314 1!n Ro j COVERAGES - LIMITS OF LIABILI T Y PREMIUMS FOR VEHICLES THE COVERAGE IS APPLICABLE ONLY IF A PREr:9UM 19 INDICATED VEH 1 an;oay u+lury LoWay 41.000,(.'00 CSL 1 1262. P+noa:!y Derange LL]WAY L1,000,000 CSI. 439 Fin f. Than Comow:a AEOI Comngo 326 Collishn 631 4 PREMIUM BY VEHICLE:, MCP /PUC: iNo I I SEE REVERSE FOR ADDITIONAL INFORMATION ENDORSEMENTS MADE A PART OF THIS POLICY: 50`51 POLO INSURED COPY AMEND DATE: 12/01/10 a1 761 DECO2 Pacc i of 2 E \'DOa5F..14Erd'I'; ! 'f 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 This fax was received by FAX.CNB on Line 3 from 9492220750 09LOZZZ646 w04 Z cull u0 i3ND -XVJ A9 peApow sem xe; sn{1 uw so rcv,o tnn t. runn 1- 948- !'L'3 -3Sb8 p•1 ..,. c11 19i' 40.4. wgw4ltl /t)0 kRV1005 PAGE 01/01 RUM: 04&72 M Page: Pia D .a'o TAW0112:wW'PM i 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 '1111a 18k *2s rEv&W bt FAX" on tine 1 tam 9492MSD AV 6Z =09 :6 1, 1,0Z /6Z /L:a1ep yt:a6ed 09L0ZZZ646:w0JJ From: 9492220750 Page: 3/9 Date: 7/1512011 2:32:52 PM 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 This fax was received by FAX -CNB on Line 3 from 9492220750 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. This fax was received by FAX -CNB on Line 3 from 9492220750 From: 9492220750 Page: 519 Date: 7/15/2011 2:32:52 PM (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 This fax was received by FAX -CNB on Line 3 from 9492220750 From: 9492220750 Page: 619 Date: 7/1512011 2:32:53 PM 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, This fax was received by FAX -CNB on Line 3 from 9492220750 From: 9492220750 Page: 7/9 Date: 7/1512011 2:32:53 PM 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. This fax was received by FAX -CNB on Line 3 from 9492220750 From: 9492220750 Page: 8/9 Date: 7/15/2011 2:32:53 PM 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 This fax was received by FAX -CNB on Line 3 from 9492220750 II Ir li I II f I From: 9492220750 Page: 9/9 Date: 7/15/2011 2:32:54 PM This fax was received by FAX-CNB on Line 3 from 9492220750 T E&HIBIT "A" GI 00 This fax was received by FAX-CNB on Line 3 from 9492220750 T GI 17 SME VAME 44K I Cl. I 2 a 117 N, - — — — — — — — — — — - — — — — — — This fax was received by FAX-CNB on Line 3 from 9492220750 T 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 ? s C , >, e ',�v *�, Y �EWPpR� 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 � n U S 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 / L 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 V 7151„ 6xtllnLr "A" Is