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HomeMy WebLinkAboutHOLLYS YOGURT - 1997-01-14CITY OF HUNTINGTON BEACH INTER -DEPARTMENT COMMUNICATION HUIONGTON BEACH TO: v Connie Brockway, City Clerk Daryl Smith, Superintendent Park, Tree and Landscape Division . Xathy Toler, Sr. Customer Service Rep, Business License Mike Strange, Senior Planner, Code Enforcement Division FROM: Mary Beth Broere6 n,-Kssociate Planner AUHAII SUBJECT: Outdoor Dining Permit DATE: April 8, 1997 Attached please find your copy of two completed outdoor dining permits and associated license agreements. (The City Clerk is receiving the original license agreements for permanent file storage.) All required fees have been paid, and the permits have been mailed to the applicants, Holly's Yogurt and Sugar Shack. Should you have any questions regarding the permit, please call me at ext. 5550. cc: Melanie Fallon ICI Howard Zelefsky 0 ,;.` -I]. &L LICENSE AGREEMENT BY AND BETWEEN THE CITY OF HUNTF ON BEACH AND l/�-s i o 4rar FOR ENCROACHMENfT INTO THE PUBLIC RIGHT OF WAY This agreement is made and entered into on this � day of 0l41 , 199_7 by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation, hereinafter referred to as "CITY," and A162 Ko hereinafter referred to as "LICENSEE." WHEREAS, LICENSEE has applied to CITY for permission to encroach into the public right of way adjoining LICENSEE'S property, for the purpose of seating additional restaurant patrons therein; and CITY desires to allow such encroachment; and The parties wish to enter into an agreement defining their respective rights and responsibilities concerning said encroachment, NOW, THEREFORE, in consideration of the promises and agreements hereinafter made and exchanged, the parties covenant and agree as follows: 1. PERMISSION Permission is hereby given to LICENSEE to enter upon and use the public right of way as depicted in the map attached hereto as Exhibit "A" (hereinafter referred to as the "Public Right of Way") for the purpose of providing additional, temporary seating and tables for LICENSJEE'S restaurant patrons. LICENSEE agrees to remove and replace such seating and tables each day, so that the seating and tables will not be stored or kept in the Public Right of Way overnight. This License is non-exclusive, and the Public Right -of Way shall at all times remain open for use by the public. g*agrecoutdoor.doc 2/22/96 2. TERM; FEES AND CHARGES The term of this License is one year. This License may be canceled on 10 days written notice from CITY to LICENSEE. In consideration of this License, LICENSEE agrees to pay to CITY an application fee, a use charge, and an inspection fee in the following amounts: a) Application Fee: Thirty Dollars ($30.00) one time fee. b) Use Charge: One Cent ($0.01) per square foot of public right of way (6 encroached upon, for a total use charge ofs.,�s 0-� 63 e L44s: ($ ) per year. c) Inspection Fee: Three Hundred Dollars ($300.00) per year. 3. INDEMNIFICATION, DEFENSE, HOLD HARMLESS LICENSEE hereby agrees to protect, defend, indemnify and hold and save harmless CITY, its officers, and employees against any and all liability, claims, judgments, costs and demands, however caused, including those resulting from death or injury to LICENSEE'S employees and damage to LICENSEE'S property, arising directly or indirectly out of the grant of License herein contained, including those arising from the passive concurrent negligence of CITY, but save and except those which arise out of the active concurrent negligence, sole negligence, or the sole willful misconduct of CITY. LICENSEE will conduct all defense at its sole cost and expense. 4. WORKERS' COMPENSATION INSURANCE Pursuant to the California Labor Code Section 1861, LICENSEE acknowledges awareness of Section 3700 et seq. of said code, which requires every employer to be insured against liability for workers' compensation; LICENSEE covenants that it will comply with all such laws and provisions prior to the encroachment into the Public Right of Way pursuant to this license. 2 g*agrecoutdoor.doc 2/22/96 • LICENSEE shall maintain such Workers' Compensation Insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, and Two Hundred Fifty Thousand Dollars ($250,000) bodily injury by disease, policy limit, at all times incident hereto, in forms and underwritten by insurance companies- satisfactory to CITY. 5. INSURANCE LICENSEE shall carry at all times incident. hereto, on all activities to be performed in the Public Right of Way as contemplated herein, general liability insurance, including coverage for bodily injury, and property damage. All insurance shall be underwritten by insurance companies in forms satisfactory to CITY. Said insurance shall name the CITY, its officers, agents and employees and all public agencies as determined by the CITY as Additional Insureds. LICENSEE shall subscribe for and maintain said insurance policies in full force and effect during the life of this Agreement, in an amount of'not less than One Million Dollars ($1,000,000) combined single limit coverage. If coverage is provided under a form which includes a designated general aggregate limit, such limit shall be not less than One Million'Dollars ($1,000,000). In the event of aggregate coverage, LICENSEE shall immediately notify CITY of any known depletion of limits: LICENSEE shall require its insurer to waive its subrogation rights against CITY and agrees to provide certificates evidencing the same. 6. CERTIFICATES OF INSURANCE: ADDITIONAL INSURED ENDORSEMENT Prior to the encroachment into the Public Right of Way pursuant to this license, LICENSEE shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; said certificates shall provide the name and policy number of each carrier and policy, and shall state 3 gAagrecoutdoor.doc 2/22/96 that the policy is currently in force and shall promise to provide that such. policies will not be canceled without thirty (30) days prior written notice to CITY. LICENSEE shall maintain the foregoing insurance coverages in force until this Agreement is terminated. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of CITY by LICENSEE under this Agreement. CITY or its representative shall at all times have the right to demand'the original or a copy of all said policies of insurance. LICENSEE shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to each of LICENSEE'S insurance policies, naming the CITY, its officers and employees as Additional Insureds shall be provided to the City Attorney for approval prior to the encroachment into the Public Right of Way pursuant to this License. 7. RELEASE LICENSEE hereby releases and forever discharges CITY of and from any and all claims, demands, actions or causes of action whatsoever which LICENSEE may have, or may hereafter have, against the CITY specifically arising out of the matter of the entry of LICENSEE onto"the Public Right of Way. This is a complete and final release and shall be binding upon LICENSEE and the heirs, executors, administrators, successors and assigns of LICENSEE'S use of the Public Right of Way. LICENSEE hereby expressly waives any rights under or benefit of any law of any jurisdiction whatsoever providing to the contrary. Neither the acceptance of this release nor any payment made hereunder shall constitute any admission of any liability of CITY. 8. WASTE LICENSEE shall, not alter, damage or commit any kind of waste upon the Public Right of Way or any improvement, equipment or personal property thereon and shall not interfere 4 g*agrecoutdoor.doc 2/22/96 in any manner with the operations or activities of CITY. LICENSEE shall make no change in the use of the Public Right of Way nor shall the design of the Public Right of Way be changed other than as authorized herein without prior written consent of CITY. LICENSEE shall not cause any workmen's or materialmen's liens to be placed upon the Public Right of Way and agrees to indemnify and hold CITY harmless against any such liens including but not limited to the payment of attorneys' fees. 9. MAINTENANCE LICENSEE agrees to care for and maintain the Public Right of Way in good and satisfactory condition as acceptable to the City. Maintenance shall daily cleaning of the Public Right of Way including but not limited to removal of all rubbish, food stuffs, paper, bottles, cans, gum, cigarettes, animal litter, dirt and sand. At the end of each business day, any and all furniture, fixtures or other items, permitted and used in the operation of the business shall be removed from the Public Right of Way. Such items shall not be returned to the Public Right of Way until the beginning of the next business day. Steam cleaning or high pressure water cleaning of the Public Right of Way, including the sidewalk, curb and gutter shall be accomplished as needed or as directed by the CITY. In the event LICENSEE does not maintain the Public Right of Way in a satisfactory manner, LICENSEE authorizes CITY to perform such maintenance on LICENSEE'S behalf. All costs incurred performing said maintenance shall be assessed to and billed directly to the LICENSEE. LICENSEE agrees to pay such costs within ten (10) days of billing. In the event any damage is caused to the Public Right of Way, including any damage to the brick pavers, hardscape, sidewalks, curb, planters, bollards, landscape, irrigation include but not be limited to system, street light, street or other utilities improvements, as a result of the encroachment authorized hereunder, LICENSEE agrees to repair same at its own expense. 5 g:4agrecoutdoor.doc 2/22/96 In the event LICENSEE does not comply with all conditions of approval required by the Conditional Use Permit and relevant Downtown Specific Plan and Downtown Guidelines, Huntington Beach Municipal Code Section 7.12.05 and other applicable Huntington Beach Municipal Code Sections, as determined by the Community Development Director, the License may be canceled on 10 days written notice from CITY to LICENSEE. 10. CONTROL OF EQUIPMENT: ANIMALS LICENSEE shall keep any equipment used or brought onto the Public Right of Way under its absolute and complete control at all times and said equipment shall be used on the Public Right of Way at the sole risk of LICENSEE. LICENSEE shall bring no animals, with the exception of seeing eye dogs, onto the Public Right of Way. 11. INDEPENDENT CONTRACTOR LICENSEE agrees that all work done or undertaken by it on the Public Right of Way shall be for its sole account and not as an agent, servant or contractor for CITY. LICENSEE agrees to indemnify and hold CITY and the Public Right of Way harmless from and against all claims or liens of workmen and materialmen. 12. NO ASSIGNMENT LICENSEE agrees that the permission herein extended shall be personal to it and that it shall not assign or permit any third party to avail itself of any of the privileges granted hereunder, without the express written permission of CITY. 13. NO TITLE INTEREST No title interest of any kind is hereby given and LICENSEE shall never assert any claim or title to the Public Right of Way. 6 g*agreemutdoor.doc 2/22/96 • 14. NOTICES All notices given hereunder shall be effective when personally delivered or if mailed, within 48 hours of the deposit of such notice in the U.S. Mail, postage prepaid, and certified with return receipt requested and addressed to LICENSEE or to CITY at the respective addresses shown below: CITY: Mr. Les Jones Director of Public Works City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 LICENSEE: .15. NO DISCRIlVIINATION LICENSEE agrees that in performance of this Agreement and in the use of the Public Right of Way authorized hereunder, it will not engage.in, nor permit its officers, agents or employees to engage in, any discrimination or discriminatory: practices against any person based on race, religion, creed, color, natural origin, ancestry, physical handicap, medical condition, marital status or gender. 16. ATTORNEY' S FEES' In the event suit is brought by either party to enforce the terms and provisions of this agreement or to secure the performance hereof, each party shall bear its own attorney's fees. J The prevailing party shall not be entitled to recover its attorney's fees. REST OF PAGE INTENTIONALLY LEFT BLANK 7 g*agree:outdoor.doc 2/22/96 • 16. ENTIRETY This Agreement contains the entire agreement between the parties. This Agreement shall be modified only by a -subsequent written amendment, as may be mutually agreed upon by the parties. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written. LI By: - ame � 1 �N 1vITS (E(rcle e) hairra�re'en ice President By: print name ITS: (circle one) ecre Chief Financial Officer/Asst. Secretary - Treasurer g*agree:outdoondoc 2/22/96 CITY OF HUNTINGTON BEACH, a municipal corpof the State of California W Direc*,2Vuublic Works��r L o�� APPROVED AS TO FORM: ;� ' �3 ,%City Attorney s ISSUE EDATi (MM/DD� Y) INSURANCE E 4�a1CRTIFICAOF 2 PRODUCERTHIS _ CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS ARNOLD INSURANCE AGENCY I ' NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW P. 0. Box 228 i 324 Main Street Huntington Bch., CA 92648 4 ? COMPANIES AFFORDING COVERAGE (714) 536-1414 ;...._,_.... __m.___.-._........,... �..._.. ___ _._._...._-.... __._._. — COMPAN i LETTER Y A TRUCK INSURANCE EXCHANGE CODE SUB -CODE COMPANY B ' INSURED LETTER MICHEL,L,E & TIMOTHY TURNER ? COMPANY C . DBA : HOLtL,' S YOGURT LETTER _._ :_._.______ 213 MAIN STREET ? COMPANY D HUNTINGTON BEACH, CA 92648 LETTER { COMPANY E j LETTER COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD 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. CO ! POLICY EFFECTIVE I POLICY EXPIRATION' I TYPE OF INSURANCE POLICY NUMBER LTRI { ALL LIMITS IN THOUSANDS { DATE (MM/DD/YY) DATE (MM/DD/YY) i A j GENERAL LIABILITY ! 1502-67-23 4-12-961 4-12-97 1 GENERALAGGREGATE I $ 1 , 000 X COMMERCIAL GENERAL LIABILITY PROD UCTS-COMP/OPS AGGREGATE! $ 1 , 000 CLAIMS MADE X_ ; OCCUR,, PERSONAL & ADVERTISING INJURY i $ ._ E OWNER'S & CONTRACTOR'S PROT! I--, > 1 ' EACH M $ - -w- 1 ,_00.0- !FIRE DAMAGE (Any one fire) { $ _ M _ MEDICAL EXPENSE (Any one person); $ AUTOMOBILE LIABILITY { ; COMBINED ! - }I I ANY AUTO { SINGLE $ .LIMIT s ALL OWNED AUTOS j BODILY INJURY ! � SCHEDULED AUTOS � , $ i � ' (Per arson ! ' I j HIRED AUTOS 1 t BODILY ! ! ! INJURY is NON -OWNED AUTOS j G GARAGE LIABILITY , 3. I PROPERTY 3 ! $ DAMAGE i EXCESS LIABILITY 4 r EACH i AGGREGATE OCCURRENCE! '., $ $ OTHER THAN UMBRELLA FORM f WORKER'S COMPENSATION STATUTORY I { (EACH ACCIDENT) AND _ (DISEASE —POLICY LIMIT) EMPLOYERS' LIABILITY 4 ! $ (DISEASE —EACH EMPLOYEE OTHER { i j _r VED11 S TO FORM: DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/RESTRICTIONS/SPECIAL ITEMS C:• IL HUT001T., C 'l vy 1 ul Or_neY ' By:, Dc-putt' City Attorney ADDITIONAL, INSURED END#E4103 CERTIFICATE HOLDER_ CANCELLATION CITY OF HUNTINGTON BEACH, ITS I'i SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE AGENTS, OFFICERS, AND EMPLOYEES EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL.*WZW'=XR P.O. BOX 190 i MAIL-2-0 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE HUNTINGTON BEACH, CA 92648 LEFT,lA1Ct�d1bADCJ51CG7iCQ�d1CH�9�Q{3�AiF}iV�7PQQCt$�09Dd7pp4 ' ! CfiF381CIR7C4G-�IXBiIDQXI��KJ�3EiC�bU3f>,7d�C Xt3E74 �CII�$6X REPRESE ATIVE �AUTHORIZED /�7 ACORD 25-S 3/88 © ORD CORPORATION 1988 "Attachi``to your policy, with the same number shown on this endorsement - E41 03 01 2nd Edition Named Insured • CH WE �iN_ £ TINOT._Y TURNER Agent- Policy -Number. . Address • DBA :' . HOI.r Y' S . YOGURT 18052 FRESHWATER ciR •97- 88 372 i502 67 23 . HUNTINGTON: BEACH,. -CA .92647 of the Company sdesignated in the Insured = Declarations Location - 213 )VAIN ST HUNTINGTON .BEACH CA 92648 - -(Same as above unless otherwise -stated here) Effective Date 4-1.2-96 Limit. of Liability $ 1, 000,000 each occurrence _ $ 1, 000, 000 Annual Aggregate ADDITIONAL INSURED ENDORSEMENT (SPECIAL SENTINEL),. In consideration of the premium we agree with you to the following: 1'. The. insurance provided by this policy for bodily injury liability and property damage liability under Coverage D—Business Liability insurance will also,apply to .the additional insured named below, but only with respect to an occurrence'arising-out of the ownership, maintenance or use of, that part of : - the insured location occupied by -you. 2. This insurance does not apply to: (a) Any occurrence which takes place after you cease to occupy the insured location.,. (b) Any structural alterations; new construction or demolition. operations-performed.by or. for any additional insured. named below. - 3..The additional insured will not.be construed or deemed to be a subscriber to the Company issuing this policy. . 4 The additional -insured -will. not be or become liable for any premium payments due upon this policy. 5. ,If -this policy is terminated for any reason we will .give 30 days notice in writing -to .the additional insured named below. . This'endorsement is part.ofyouur policy. It supersedes and controls anything to the contrary. It is otherwise t-- Subject to.all other -terms' of: the policy. = APPROVED AS TO FORM: GAIL HUTTON,, City. Attorney. By; Deputy City Attorney CITY OF -HUNTINGTON BEACH Additional, ITS -.AGENTS, OFFI-C_ERS, AND ENPCOYEES Insured PO .BOX 119.0 HUNTINGTON BEACH CA 92648 Countersigned a _ •`, _ _ _. ____ _ uth ' ized, Representative 91-4103 2ND EDITION 6.95 1501 C-96 1301 s YM Ar.w