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HomeMy WebLinkAboutEAST END REALTY PARTNERSHIP, LP. AND WURSTHAUS, INC.City of Santa .na Clerk of the Council AGREEMENT TERMINATION FORM Please complete this form in its entirety when the attached agreement and all amendments (if any) are no longer in effect. Note: If your agreement is grant related, please ensure that all grant retention requirements CLE have been satisfied prior to signing the termination form. Is the agreement(s) a permanent record? Yes _ No Return form to the Clerk of the Council Office (M-30). Call 647-1520 if you have any questions. The agreement with No. A-2021-206 was completed on (List all amendments. Use space below if needed.) h2C) C)C-3 A-20ia -Zoo i:tagreements4orms4orm agreement termination form_goldenrod.doc f1 COTC Office Use Only OF THE COUNCIL 128'23 PM4:33 and final payment has been made. Department: Phone/Ext.: �J (pC✓%— Signature: Date: ) Inc /_&ZI]W111*3 INSURANCE NOT ON FILE WORK MAY NO PROCEED CLERK OF COUNCIL 0 DATE: D'. 2� A\ti) M N\:� TEMPORARY OUTDOOR DINING LICENSE AGREEMENT EXI This TEMPORARY OUTDOOR DINING LICENSE AGREEMENT (hereinafter "License Agreement"), entered into this 71h day of May, 2019, by and between the City of Santa Ana, a charter city and municipal corporation of the State of California (hereinafter "City"), East End Realty Partnership, LP, and Wursthaus, Inc. (hereinafter collectively "Licensee") is made with reference to the following: RECITALS: WHEREAS, City owns certain real property located at 325 E. 4'h Street; and WHEREAS, the property is currently used as a public plaza maintained by the Parks, Recreation, and Community Services Agency and the public plaza is known as Plaza Calle Cuatro (the "Plaza") as more particularly described in Exhibit "A'; and WHEREAS, City and Licensee desire to enter into a License Agreement to allow temporary outdoor dining activities within a portion of the Plaza, upon the terms and conditions set forth herein, adjacent to real property located at 301-305 E. 4'h Street, Suite 106, City of Santa Ana, County of Orange, State of California (the "Property") which is further described in Exhibit `B'; and WHEREAS, the approval of this License Agreement is to implement temporary outdoor dining activities directly associated with a business having frontage along and sharing a property line with the Plaza. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM AND PURPOSE OF LICENSE The City hereby grants to Licensee upon each of the covenants and conditions set forth herein for a six (6) month period commencing on June 1. 2019, and ending on November 30, 2019, unless earlier terminated as herein set forth, a license to conduct outdoor dining activities within an open area consisting of 200 square feet located near the southwest comer of the Plaza adjacent to certain real property located at 301-305 E. 4'h Street, Suite 106, in the City of Santa Ana, County of Orange, State of California, more particularly described in Exhibit "C" attached hereto and incorporated herein by reference (hereinafter referred to as the "Licensed Premises"). This Agreement is intended and shall be construed only as a revocable license to use the Licensed Premises and not as a lease or grant of any possessory or other interest. 2. LICENSED PREMISES AND USE (a) The Licensed Premises covered by this License Agreement shall be only such as described in Paragraph 1 and Exhibit "C" hereto. Licensee shall not use any premises or property that is not specifically described herein. The products Licensee shall dispense on the Licensed Premises are food and beverage products only. 1 of (b) Licensee shall at all times comply with all City regulations and any applicable Outdoor Dining Ordinance Standards and Procedures on file with the City's Public Works Agency and as provided to Licensee as part of this License Agreement. (c) The Licensed Premises may not be used by Licensee when in use by the City for City - sponsored events upon at least 24 hours' notice provided by the City. Such notice shall provide the Licensee information regarding day(s) and hour(s) and duration of the event. Licensee shalt clear Licensed Premises of furnishings and shall not impede City use of the Licensed Premises when notified of all such events. (d) From time to time, the Plaza will be rented for temporary private use by the public through the City's public facility reservation program. Licensee may continue the use of the Licensed Premises as described in this Agreement and shall not infringe, disturb, prohibit, or impede all activities approved by the City under the program that may include, but are not limited to: outdoor concerts with amplified sound, parties, fairs, and specialty pop-up events. (e) Licensee shall not use, and shall prohibit its Agents or Invitees from using, the Licensed Premises other than for the uses described in this Agreement. The term "Agents" shall mean Licensee's officers, directors, members, agents, employees, invitees, contractors, subcontractors, and any employees of such parties. The term "Invitees" shall mean Licensee's invitees, guests, customers, or business visitors. 3. LICENS , FEE Upon execution of the License Agreement, Licensee shall pay to the City, a one-time non- refundable fee of Six hundred Thirty Six Dollars ($636,00). Payment to the City shall be made payable to the order of the "City of Santa Ana" and delivered to the Parks, Recreation & Community Services Department. 4. EQUIPMENT (a) Licensee shall, at its sole cost and expense, provide portable furnishings including chairs, tables, umbrellas, and if desired, decorative barriers. No permanent barriers, fixtures, or furnishing will be permitted, (b) All equipment and furnishings and the cost of their installation shall be provided at the sole expense of the Licensee. All such equipment used within the Licensed Premises, shall be deemed to be Licensee's personal property, and shall be removed immediately by Licensee every day when the business is not open to the public and at the termination or expiration of this License Agreement. (c) Licensee shall not modify the Licensed Premises in any manner. (d) At the termination or expiration of this Agreement, concurrent with removal of Licensee's fixtures and equipment, Licensee, at its own expense, shall return the Licensed Premises to its original condition to the satisfaction of the Executive Director of the Parks, Recreation & 2 of 9 Community Services Agency (or designee). 5. UTILITIES The Licensee shall pay all charges for fuel, gas, water, electricity, telephone services, and any other utilities necessary to carry on the operations of Licensee. Licensee may apply to the City's Building and Safety Division for a permit to run electricity to the outdoor dining area, Such permit would be for a lighting plan which abides by the requirements in the City's Outdoor Dining Standards and Procedures and pertinent City codes. 6. FOOD AND BEVERAGES (a) All food and beverages for consumption on Licensed Premises sold or kept for sale by Licensee shall conform to federal, state, county and municipal food laws, ordinances and regulations in all respects. (b) No adulterated, misbranded, or impure food or beverage shall be sold or kept for sale by Licensee, and all food or beverage shall be stored and handled with due regard for sanitation. Licensee shall not sell, give away, or serve any food or beverage in the outdoor dining area in any container made from styrofoam or any other material which, in the sole opinion of the City, will cause undue litter on or around the Licensed Premises. The sale of alcoholic beverages is allowed if in compliance with all applicable federal, state and City statutes, regulations, rules and ordinances. MAINTENANCE AND MAINTENANCE DEPOSIT (a) Licensee shall maintain the Licensed Premises in a neat, clean, sanitary and safe condition, to the satisfaction of the City, at the sole cost and expense of the Licensee. At its sole cost, Licensee shall, at the expiration or earlier termination of this Agreement, restore the Licensed Premises to their original condition in which they existed immediately prior to the Agreement, leave the Licensed Premises in a neat and clean condition to the sole satisfaction of City, free of trash and debris, and remove all property and materials of Licensee. (b) Upon execution of the License Agreement, Licensee shall provide a maintenance deposit in the form of cash deposit to the Parks, Recreation & Community Services Agency in the amount of One Thousand ($1,000.00). Said deposit shall be held by the City, without liability for interest, as security for the faithful performance by Licensee of terns, covenants and conditions of this Agreement pertaining to Licensee's maintenance of Licensed Premises. (c) During the term of this License Agreement, the City shall have the right, at its option, to appropriate and apply the entire maintenance deposit or so much thereof as may be necessary to compensate the City for all damage or repairs to the Licensed Premises due to breach of this covenant on the part of Licensee. Should the entire depositor any portion thereof be appropriated and applied by the City hereunder, Licensee shall, upon written 3 of 9 demand of the City, forthwith remit to the City sufficient amount to restore said outdoor dining area maintenance deposit to the original sum deposited. Licensee's failure to do so within five (5) days after receipt of such demand shall constitute a breach of this Agreement. The rights and remedies granted to City pursuant to this Paragraph are in addition to City's other remedies as provided in this License Agreement and bylaw. The deposit will be refunded upon termination of the License Agreement after an inspection of the condition of the Licensed Premises, paving and fixtures by the City's Parks, Recreation & Community Services Department, 8. GARBAGE AND R B ISH Licensee's management shall keep the Licensed Premises clear of litter, food scraps and soiled dishes and utensils. No boxes, barrels, supplies or rubbish in any form shall be kept, piled or stored in the Licensed Premises or surrounding areas. As required by the City, Licensee shall provide standard garbage receptacles, shall place therein all garbage and refuse, and shall arrange with the City's Sanitation Division or other approved contractor for collection from an approved location at Licensee's expense. If disposable materials are used, the Licensee shall comply with all applicable City recycling programs. 9. WARRANTIES ALTERATIONS AND REPAIRS City makes no representation or warranty of any kind as to the condition of the Licensed Premises or any other matter relating to Licensee's use of the Licensed Premises. Licensee hereby disclaims and waives any and all objections to the physical and other characteristics and conditions of the Property. Licensee acknowledges and agrees that the use of the Licensed Premises will be on the basis of Licensee's own investigation of the condition of the Licensed Premises. The license to use the Licensed Premises is granted on an "AS -IS," "WITH ALL FAULTS" basis, without representation or warranty expressed or implied by City, or by operation of law. City expressly disclaims, which Licensee hereby acknowledges and accepts, any implied warranty of condition or fitness for a particular purpose or use. Licensee's use of the Licensed Premises shall be subject to the Licensed Premises being in a usable and safe condition at the time of Licensee's use, and Licensee shall be solely responsible for determining whether the Licensed Premises are in such condition. In connection therewith, in the event that the Licensed Premises or access thereto are damaged or obstructed, or the use by Licensee is otherwise impaired, prevented or limited, City shall have no obligation or duty to repair the damage or rectify the condition to make the Licensed Premises usable or safe. Licensee shall not make any changes or remove any portion of the Licensed Premises without first securing the prior consent of the Executive Director of the Parks, Recreation & Community Services Department (or designee). All such approved changes or removals shall be at the sole expense of Licensee. 10, SIGNS. UMBRELLAS MUSIC AND MERCHANDISE Licensee shall be allowed to use free-standing umbrellas provided they meet the City's Outdoor Dining Standards and Procedures for placement and maintenance. No signs or advertising matter of any kind shall be displayed in the outdoor dining area, except as approved by the City's 4of9 Planning Department. Unamplified musical instruments or sound reproduction systems are permitted in outdoor dining areas, but shall be maintained at sufficiently low volumes so as not to unduly intrude on neighboring businesses, residents, or users of the public right-of-way and the Licensed Promises, 11, CONDUCT Licensee shall at all times conduct its business or operate its business in a quiet and orderly manner to the satisfaction of the City. 12. NO LIENS Licensee shall not permit any mechanics', materialmen's or other hens of any kind or nature ("Liens') to be filed or enforced against the Licensed Premises or Property in connection with this Agreement. Licensee shall indemnify, defend and hold harmless City from all liability for any and all hens, claims and demands, together with costs of defense and reasonable attorneys' fees, arising from any Liens. City reserves the right, at its sole cost and expense, at any time and from time to time, to post and maintain on the Licensed Premises or Property, or any portion thereof, or on the improvements on the Property, any notices of non -responsibility or other notice as may be desirable to protect City against liability 13. INGRESS AND EGRESS The City reserves the right to enter upon the Licensed Premises covered by this License Agreement at any and all times during the term of this License Agreement. No merchandise may be stored or displayed on or about the Licensed Premises. 14. TAXES (a) Licensee shall exonerate, indemnify, and hold harmless the City from and against, and shall defend the City from and against, and shall assume full responsibility for, payment of all wages or salaries and all federal, state, and local taxes or contributions imposed or required under the Unemployment Insurance, Social Security, Income Tax laws, Workers' Compensation laws, or other laws with respect to the Licensee's employees engaged in the performance of Licensee's obligations and operations hereunder, (b) Licensee hereby recognizes and understands that this License Agreement may create a possessory interest subject to property taxation and that Licensee may be subject to the payment of property taxes levied on such interest. Any such imposition of a possessory interest tax shall be a tax liability of Licensee solely, and shall be paid for by the Licensee, and any such tax payment shall not reduce any payments due City hereunder. In addition, Licensee shall pay any personal property taxes that may become due for equipment fixtures, inventory, or other personal property installed, maintained or present on the Property. $ of 9 15. INSURANCE REQUIREMENTS (a) Licensee shall maintain commercial general liability insurance which shall include, but not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of Licensee's use of the Licensed Premises or Property, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $2,000,000 per occurrence and $5,000,000 in the aggregate. Such insurance shall (i) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (ii) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (iii) contain standard separation of insureds provisions. (b) Pursuant to state law, Licensee is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of services under this Agreement, Licensee agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. (c) Certificates of Insurance; Additional Insured Endorsements. Prior to execution of this Agreement, Licensee shall furnish to City certificates of insurance and additional insured endorsements to each of Licensee's insurance policies, evidencing the foregoing insurance coverages as required by this Agreement. These certificates shall: i, provide the name and policy number of each carrier and policy; ii, shall state that the policy is currently in force; and iii, shall promise to provide that such policies will not be canceled, suspended, voided, reduced in coverage or in limits, or modified without thirty (30) days prior written notice of City. (d) Licensee shall maintain the foregoing insurance coverages in force throughout the term of this Agreement. City or its representatives shall at all times have the right to demand the original or a copy of all these policies of insurance, which Licensee shall provide within five (5) days of City's request. 16. CDMPLIANCE WITH LAWS AND ORDINANCES Licensee shall, at its sole expense, conduct and cause to be conducted all activities on the Licensed Premises in compliance with all laws, regulations, codes, ordinances and orders of any governmental or other regulatory entity, and whether or not in the contemplation of the parties. 17. PERMITS AND LICENSES Licensee shall be responsible for obtaining all approvals, licenses, permits and permissions of Federal, State and local authorities, which may be necessary to implement Licensee's activities on the Licensed Premises. Licensee agrees and acknowledges that nothing herein is intended, nor shall it be interpreted, to bind the City to issue or grant any permits or entitlements needed to perform any work 6of9 or improvements specified in this Agreement. 18. PROHIBITION AGAINST TRANSFER The permission, rights and privileges granted under this Agreement are non-exclusive and non- transferable. Licensee shall not, either voluntarily or by operation of law, assign, transfer, mortgage or encumber this License or any obligation, right, title or interest assumed by Licensee herein, without the prior written consent of the City, which may be withheld at the sole discretion of the City. Licensee shall not sublicense, or permit, or suffer the Property or any part thereof to be used or occupied by others. If Licensee attempts an assignment or transfer of this License or any obligation, tight, title or interest herein, City may at its option, immediately terminate the License and shall thereupon be relieved from any and all obligations to Licensee or to its attempted assignee or transferee. 19. WAIVERS A waiver by the City of any breach of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 20. INDEMNITY AND HOLD HARMLESS Licensee shall indemnify, defend, and hold harmless City, and its respective agents, officers, representatives, employees, subsidiaries and affiliates ("Covered Party") from and against any and all actions, suits, claims, demands, judgments, losses, expenses, or liabilities, injuries and damages to persons and property, including death, arising out of or related to Licensee's use of the Licensed Premises or Property, the entry by any Licensee Party on any portion of the Licensed Premises or Property or surrounding property or Facilities, or Licensee's breach or default in the performance of any of its obligations under this Agreement. If any action or proceeding is brought against any Covered Party by reason of any such claim, Licensee, upon receipt of written notice from Covered Party, shall defend the same at Licensee's sole expense with legal counsel reasonably acceptable to Covered Party. Payment shall not be a condition precedent to recovery under any indemnification in this Agreement, and a finding of liability or an obligation to indemnify shall not be a condition precedent to the duty to defend. The provisions of this section shall survive the termination or expiration of this Agreement. 21. INDEPENDENT CONTRACTOR It is understood and agreed that Licensee, in the performance of this License Agreement, will be acting in a wholly independent capacity and not as agents, employees, partners, or joint ventures of the City. This Agreement does not create a tenancy of any nature whatsoever between the City and Licensee. 22. TERMINATION City reserves the right to suspend all activities or terminate this Agreement upon Licensee's 7 of 9 non-compliance with any of the terms or conditions of this Agreement. Such suspension or termination shall be effective immediately, City may otherwise revoke this License at any time by providing thirty days' written notice to Licensee. 23. NOTICES Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this section, to the following persons: To Licensee: East End Realty Partnership, LP 129 W, Wilson Street, Suite 100 Costa Mesa, California 92627 Wursthaus,Inc. 305 E. 4`h Street #106 Santa Ana, California 92701 To City: City of Santa Ana 20 Civic Center Plaza, 70' Floor Santa Ana, California 92701 Attention: City Attorney City of Santa Ana Clerk of the Council 20 Civic Center Plaza, 8a' Floor Santa Ana, California 92701 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. if sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above, For purposes of calculating these timeframes, weekends, federal, state, County or City holidays shall be excluded. 24. GOVERNING LAW AND VENUE This Agreement shall be governed by the laws of the State of California. Any litigation or other legal proceedings that arise under or in connection with this Agreement shall be conducted in a federal or state court located within Orange County, California. The Parties consent to the personal jurisdiction and venue in federal or state court located within the County of Orange, California and hereby waive any defenses or objections thereto. a of 25. SEVERABILITY In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the Parties hereunder. 26. ENTIRE AGREEMENT This Agreement constitutes the entire and integrated agreement of Licensee and City with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral or written negotiations, representations or agreements. IN WITNESS WHEREOF, the patties have caused this License Agreement to be executed the day and year first above written. ATTESQT:� CITY OF SANTA ANA Daisy Gomez, MMC KR19TTNERIDGE Clerk of the Council City Manager APPROVED AS TO FORM: RECOMMEND APPROVAL: SONIA CARVALHO City Attorney - LI A STORCK MINH THAI, Executive Director Assistant City Attorney Planning and Building Agency LICENSEE: LICENSEE: West End Realty Partnership, LP Wursthaus, Inc. Ryan Chase Gabriel Ruiz 9of9 EXHIBITA DESCRIPTION OF PLAZA CALLS CUATRO 325 E, 4th-APN 398-326-08 -. BLft 'Ki c) xiy ,e u S AfFty I I f 11328 r 32T x, pp -.1 {4fll AW vSi I I I I !O Yi}I.V{i4+ Vicinity Map EXHIBIT B 4� Plats Calle Cuaiw vz Performing Wursthaus Stage I� a i YYY M,it labn llq -'y_. qv , O�'_' " ti � SI ._r rr r1 -4 k � t - i'i ' IDt Site Layout EXHIBIT C CERTIFICATE OF LIABILITY INSURANCE DATE(MMIDD/YY1'Y) THIS CERTIFICATE ISI. SU I'D AS A MATTER OF INFORMATION ONLY 19 AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NT 'L FIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTI iA OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR O CER, AND THE CERTIFICATE HOLDER, IMPORTANT: If the card afa holder is an ADDITIONAL INSURED, fhe policy(ies) must have ADDITIONAL INSURED If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may provisions or be endorsed. require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of curt, PRODUCER Risk Strat 2040 Malt Irvine, CA vvww.nbn-suacegles.com CA DOI License No. OF06675 INSURED East End Realty Partners LP 129 W. Wilson St, Ste 100 Costa Mesa CA 92627 949-24"/ ' °I SVI . r, THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTn INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR n (i� I'✓I(J� CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANC, J EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN' R — 1n1 p LTR TYPE OFINSURANCE ADDLSUSR POLICYNUM. A r/ COMMERCIAL GENERAL LIABILITY ✓ CC11304670 CLAIMS -MADE OCCUR GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- JECT LJ LOC OTHER: AUTOMOBILE LIABILITY ✓ ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS HIRED NON -OWNED ✓ AUTOS ONLY ✓ AUTOS ONLY B / UMORELLAUAB r/ OCCUR EXCESS LIAB rYERS'LIABILITY YIN ETORIPARTNER/EXECUTIVE -MBEREXCLUDEO? N/ In NHI y �;2� � 3/112' VL 3/1/2020 \..� �NIPIGP Ann BODILY INJURY (Par parson) BODILY INJURY leer acnidA„ DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schetlule, may bs attached if more space is requiretl) Re: Temporary Outdoor Dining License Agreement, Adjacent to 301-305 E. 4th St., Ste 106, City of Santa Ana, CA, The City of Santa Ana, its officers, employees, agents, volunteers and representatives are named as additional insureds and primary/non-contributory clause applies to the general liability policy. City of Santa Ana Attn: Executive Director 20 Civic Center Plaza Santa Ana CA 92701 VHICH THIS E TERMS, SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE -. Michael Chnstlan ACORD 25 (2016/03) The ACORD name and logo are registered @ 19 of ACORD RD CORPORATION. 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