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HomeMy WebLinkAbout25J - MADISON CONCESSION BLDG CITY COUNCIL MEETING DATE: REQUEST FOR COUNCIL ACTION CLERK OF COUNCIL USE ONLY: JULY 7, 2008 TITLE: AGREEMENT FOR OPERATION OF CONCESSION BUILDING AT MADISON PARK APPROVED o As Recommended o As Amended o Ordinance on 1 st Reading o Ordinance on 2nd Reading o Implementing Resolution o Set Public Hearing For {lJJ;;t2~ CITY MANAGER CONTINUED TO FILE NUMBER RECOMMENDED ACTION Authorize the City Manager and Clerk of the Council to execute the attached agreement with Madison Park Neighborhood Association for the operation of the existing concession building at Madison Park for a two- year term with two five-year renewal options, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION Madison Park Neighborhood Association is a community-based organization established in March of 1997. Its goals and objectives are to develop civic participation and unity within the neighborhood and to foster community pride. In addition, the association is committed to preserving neighborhood integrity through education, safety, conservation and restoration activities. To assist the neighborhood association in raising funds to advance its goals and objectives, the Parks, Recreation and Community Services Agency proposes to grant the neighborhood association free use of the existing concession building located within Madison Park. The association will sell food and beverages out of the concession building during special events held by the association at the park, such as its annual Walk-a- Thon, Community Resource Fair and Concert and winter holiday celebration. The neighborhood's use of the building will not conflict with Northeast Little League's use during its regularly scheduled games and practices. The proceeds received from concessions by Madison Park Neighborhood Association will be used to support ongoing neighborhood improvement projects. 25J-1 Agreement for Operation of Madison Park Concession Building July 7, 2008 Page 2 FISCAL IMPACT There is no fiscal impact associated with this action. ~ ,,:~d'~{Vc:~ Gerardo Mouet, f Executive Director Parks, Recreation and Community Services Agency 25J-2 NON-EXCLUSIVE LICENSE AGREEMENT FOR OPERATION OF CONCESSION STAND AT MADISON PARK BY MADISON PARK NEIGHBORHOOD ASSOCIATION THIS LICENSE AGREEMENT (hereinafter "License") is made and entered into on , 2008, between the City of Santa Ana, a charter city and municipal corporation duly organized under the Constitution and laws of the State of California (hereinafter "City" or "Licensor"), and the Madison Park Neighborhood Association, a California Non-Profit Public Benefit Corporation (hereinafter "Licensee"). RECITALS A. Licensor constructed a concession stand on real property located at Madison Park in the city of Santa Ana, state of California, more specifically described in Exhibit "A", Description - Licensed Area, attached hereto (hereinafter "Property" or "License Area"). B. Licensor and Licensee desire to enter into this License whereby Licensee shall be permitted, in accordance with the terms and conditions herein, to operate the City's concession stand located at Madison Park. 1. GRANT OF LICENSE A. Licensor grants to Licensee a personal, non-exclusive, revocable license ("License") to use the License Area as a concession stand, more particularly described and shown on Exhibit "A" attached hereto. B. Licensee may not use the License Area for any other purpose or business, other than as a concession stand, without first obtaining Licensor's prior written consent. C. The Director of Parks and Recreation has absolute and final authority to approve or not approve sale at certain events or programs. D. Licensor shall not be held responsible for loss of, or damage to, any personal property left in, on, or about the License Area, or for any improvements made by Licensee on, about, or to the License Area. E. This License is made subject and subordinate to the prior and continuing right of Licensor to enter the License Area, and/or to use the License Area for any and all purposes. F. Licensor makes no warranties or representations concerning the Licensed Area or any means of ingress or egress thereto or therefrom. Licensor agrees to provide electric service to the Licensed Area. NON-EXCLUSIVE LICENSE AGREEMENT P~e 1 of8 2oJ-3 G. Licensor may, in it sole discretion, upon notice to Licensee, terminate this License in the event that Licensee fails to perform, keep or comply with any covenant, condition, restriction or limitation required by this License to be performed, kept, or complied with by Licensee. 2. DUTIES OF LICENSEE A. Licensee shall provide to Licensor, prior to January 1,2009, evidence of its status as a valid California nonprofit business entity. B. Licensee is responsible for the maintenance of the interior of the concession stand and will assist in the cleanup of the exterior when selling product. Licensee shall be responsible for all trash, garbage, paper, boxes, cartons, cans, containers, litter, etc., generated by the concession stand inside and outside of the immediate concession stand area. C. Licensee shall, at all times for the duration of the agreement, be responsible for all personal appliances, and all equipment necessary for storage, preparation, and serving of food and drinks in a clean, safe, sanitary manner. Personal appliances allowed are limited to a refrigerator, microwave, coffee maker, and crock pot. Any other appliances in question shall require the City's prior approval. D. Licensee agrees that no hot plates, grills, open flames, deep fryers, or any appliances that do not have an automatic shutoff device shall be allowed in the concession stand at any time. Licensor, if upon inspection, finds unpermitted appliances or equipment in the facility, shall require Licensee to remove them immediately. E. Licensee shall be responsible for the security of the building property upon cessation of its use, and for the contents of the concession stand. F. The concession facilities shall only be operated by the Licensee, its agents, officers, employees, volunteers, and members, and such operation shall occur only during regular weekdays and weekends, except during little league games/practices and special events, unless approved by the Executive Director of Parks, Recreation and Community Services Agency. G. At the end or expiration of the term, the Licensee shall deliver up the demised Premises in good order and condition. No improvements or alterations shall be made in or to the hereby demised Premises without the consent of the City in writing. H. Licensee agrees to use the License Area solely for the sale of food products, and conducting business incidental to the operation of Licensee's programs; the storage and/or sale of tobacco and alcoholic beverages or other unhealthy food products or sexual products is expressly prohibited. Licensee is allowed to sell NON-EXCLUSIVE LICENSE AGREEMENT P~e 2 of8 2oJ-4 packaged snacks and drinks. Licensee will make a good faith effort to sell at least 50% healthy snacks and drinks. I. In exercising the rights herein conferred by Licensor to Licensee, Licensee agrees it must use reasonable care in its use ofthe License Area. Licensee agrees that any use it makes ofthe License Area as allowed herein shall be exercised with all reasonable diligence, care and precaution so as to avoid damage or waste to the land, property, improvements within the Licensed Area, or to the personnel of the Licensee. J. Licensee agrees to conform to any reasonable requirements set forth, required, or mandated by the Licensor related to the use of the License Area as a concession stand during the License period. K. Licensee agrees that it has an absolute duty to maintain the License Area in a neat, clean, sanitary and safe condition, to the satisfaction of Licensor, at the sole cost and expense of Licensee, for which costs and expenses Licensee shall be solely obligated. The License Area shall be maintained in a manner consistent with community standards which will uphold the value of the License Area, in accordance with this License, the Santa Ana Municipal Code and all other applicable state and federal statutes and state agency regulations, and any and all local rules, regulations, ordinances and community standards. L. Licensee agrees it shall not record, hypothecate, assign or attempt to record, hypothecate or assign this personal, non-exclusive License. Any attempt by Licensee to record, hypothecate or assign this License shall automatically terminate this License and render this License null and void and invalid for all purposes. M. Licensee agrees that all revenues derived from sales conducted at the concessions stand shall be used solely to support the neighborhood association in providing materials and supplies for neighborhood youth recreational programs, and/or improvements on public property that are reasonable and necessary expenses of Licensee in connection with Licensee's operation of youth recreation programs and that said revenues and expenses shall not inure to the benefit of any individual. N. Licensee agrees to cooperate in the prevention, suppression and abatement of trespass, vandalism, or other conditions existing in or around the Licensed Area, which the Director of Parks, Recreation and Community Services Agency determines to be detrimental to the health, safety or welfare of the public, or that not in the best interests of public recreation, and which the Director directs Licensee to abate. O. Licensee shall comply with all laws, rules, and regulations of the United States of America, the State of California, the County of Orange, the City of Santa Ana and NON-EXCLUSIVE LICENSE AGREEMENT Page 3 of8 25J-5 all applicable governmental entities, agencies, boards, commissions, and bureaus thereof in the exercise of this License. 3. TERM The Term of this License shall be from the date that this License is approved by all parties through January 1, 2009. Upon proof of non-profit status, this license shall automatically extend to June 30, 2010. If Licensee fails to provide proof of its non-profit status prior to January 1, 2009, this License shall terminate on January 1, 2009. Provided Licensee shows proof of non-profit status, this License is subject to renewal for two (2) five-year terms upon six (6) months written notice to Licensor. Such extension shall be solely at the Licensor's discretion. 4. NOTICES Any notice to be given by either Licensor or Licensees shall be deemed to be properly served if and when deposited with the United States Postal Service, postage prepaid, to the addresses below: TO LICENSOR: City of Santa Ana Parks, Recreation & Community Services Agency 20 Civic Center Plaza P.O. Box 1988 (M-23) Santa Ana, CA 92702 Attn: Ron Ono TO LICENSEE: Madison Park Neighborhood Association 1120 E. Oxford Street Santa Ana, California 92707 Attn: Rose Vasquez, President 5. INSURANCE A. Licensee, and every contractor Licensee hires, shall each maintain commercial general liability insurance with a combined single limit of not less than $1,000,000 per occurrence covering the License Area. Such insurance shall: (1) name the City of Santa Ana, its officers, agents, employees, and volunteers as additional insureds; (2) be primary with respect to insurance or self-insurance programs maintained by the Licensor, and (3) contain standard separation of insureds provisions. B. Licensee shall, prior to and as a condition precedent of exercising any rights under this License, (i) furnish properly executed certificates of insurance to the Licensor, which certificates shall clearly evidence all coverages required in NON-EXCLUSIVE LICENSE AGREEMENT P~e 4 of8 2oJ-6 Section 7(a) of this Agreement, and agree that such insurance shall not be materially changed or terminated except upon 30 days prior written notice to the Licensor, (ii) attach a completed and signed copy of the Licensor's "Additional Insured Endorsement" form, a copy of which is attached hereto as Exhibit "B", to the certificates of insurance noted above; (iii) maintain such insurance from the commencement date of this License until the Termination date of same; and (iv) replace such certificates of insurance for policies expiring prior to the termination date of this License. 6. INDEMNITY Licensee shall indemnify, defend and hold harmless Licensor, its officers, agents, employees and volunteers from and against any and all loss or damage, expenses, injuries, death to any person or damage to property, including property and employees, volunteers, officers or agents of Licensor or Licensee, and shall indemnify, defend and hold harmless Licensor, its officers, agents, employees and volunteers from all claims, demands, suits, actions or proceedings of any kind, and shall be responsible for any and all costs and expenses, including but not limited to reasonable attorneys' fees, settlements or judgment, arising out of the construction, reconstruction, maintenance, presence, operation, use, removal or state of repair, of the License Area. 7. GOVERNING LAW This License shall be governed by and construed in accordance with the laws of the State of California. 8. ENTIRE AGREEMENT This License, together with all attachments and Exhibits hereto, constitutes the entire understanding and Agreement of the Parties. This License supersedes any and all other Agreements, whether oral or written, between the Parties hereto with respect to the terms set forth in this License and contains all the covenants, conditions, terms and Agreements between the Parties with respect to the subject matter herein described. Each Party to this License acknowledges that no representations, inducements, promises or agreements, whether oral or written, have been made by any party, or anyone acting on behalf of any party, with respect to the subject matter herein described, and that no Amendment hereto shall be effective unless set forth in writing, approved by the Licensor and Licensees. 9. INDEPENDENT CONTRACTOR It is understood and agreed by the Parties to this License that Licensee shall, in the performance of the terms and conditions contained herein, be acting in a wholly independent capacity and not as agents, employees, partners, or joint NON-EXCLUSIVE LICENSE AGREEMENT Page 5 of8 25J-7 venturers of the Licensor. This License does not create a tenancy of any nature whatsoever between the Licensor and the Licensee. 10. ASSIGNMENT BY LICENSEE PROHIBITED In no event shall Licensees assign or transfer any of the rights conferred herein without the prior express written consent of the Licensor. 11. ATTORNEY FEES AND COSTS In the event that any action is commenced to enforce payment or performance under this License, or otherwise in connection with this License, the Parties agree that the prevailing party shall be reimbursed by the non-prevailing Party for all costs and attorneys' fees incurred by the prevailing Party in such action. 12. CONFLICT OF INTEREST No member, official or employee of the Licensor shall have any personal interest, direct or indirect, in this License, nor shall any member, official or employee of the Licensor participate in any decision relating to this License which affects his/her personal interests or the interests of any natural or legal person in which he/she directly or indirectly has a beneficial interest. The Parties hereto have executed this personal, non-exclusive, revocable License as of the date and year first written above. LICENSOR: THE CITY OF SANTA ANA LICENSEE: Madison Park Neighborhood Association By: Rose Vasquez President By: David N. Ream, City Manager City of Santa Ana APPROVED AS TO FORM ATTEST: Joseph W. Fletcher City Attorney Patricia E. Healy Clerk Of The Council By: Jose Sandoval Senior Assistant City Attorney NON-EXCLUSIVE LICENSE AGREEMENT Page 6 of8 25J-8 EXHIBIT A DESCRIPTION - LICENSE AREA NON-EXCLUSIVE LICENSE AGREEMENT Page 7 of8 25J-9 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702;, their officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza (M- 36), Santa Ana, California 92702. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective part of Policy # Issued to , this endorsement form as a Named Insured Countersigned by Authorized Representative NON-EXCLUSIVE LICENSE AGREEMENT Page 8 of8 25J-10