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HomeMy WebLinkAboutHuntington Beach Conference and Visitors Bureau - HBCVB - 2009-03-02Council/Agency Meeting Held: 21 2,40 Deferred/Continued to: Apyed iti all Ap rave a� enie )4A4 �S C�ty' ler�, Signal re Council Meeting Date: 3/2/2009 Department ID Number: ED 09-10 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUN L MEMBERS SUBMITTED BY: FRED A. WILSON, CITY ADMINISTRA PREPARED BY: JIM B. ENGLE, DIRECTOR OF COMMUNITY SERVI STANLEY SMALEWITZ, DIRECTOR OF ECONOMIC VELOPMENT c SUBJECT: APPROVAL OF NON-EXCLUSIVE LICENSE AGREEMENT WITH THE HUNTINGTON BEACH CONFERENCE AND VISITORS BUREAU FOR USE OF VISITORS KIOSK LOCATED AT PIER PLAZA Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The City Council is asked to approve a five-year non-exclusive license agreement with the Huntington Beach Conference and Visitors Bureau for the use of the visitors kiosk located at Pier Plaza. Funding Source: Not applicable. Recommended Action: Motion to: Approve and authorize the Mayor and City Clerk to execute the Non -Exclusive License Agreement between the City of Huntington Beach and the Huntington Beach Conference and Visitors Bureau for the use of the visitors kiosk located at Pier Plaza. Alternative Action(s): Recommend staff to renegotiate the License Agreement or do not approve the License Agreement between the City of Huntington Beach and the Huntington Beach Conference and Visitors Bureau. REQUEST FOR CITY COUNCIL. ACTION MEETING ®ATE: 3/2/2009 DEPARTMENT I® NUMBER: E® 09-10 Analysis: The Huntington Beach Conference and Visitors Bureau (HBCVB) is the official destination marketing organization of Huntington Beach. The HBCVB operates as a non-profit 501 (c) (6) corporation and has an agreement with the City of Huntington Beach to promote the city as the premier overnight beach destination in Orange County and Southern California. The current visitor center for the HBCVB is located at 301 Main Street. This office offers personal assistance and a complete collection of literature about the Huntington Beach area, including magazines, maps and guides for Orange County. Alongside this, the HBCVB provides free visitor guides, .conference services for meeting planners, group tours and various advertising and public relations programs. As part of the FY 2006/2007 budget, the City Council approved the use of Redevelopment Agency funding to design and build a visitors kiosk. The purpose of the visitors kiosk is to promote the city as a destination attraction and to make it easier for visitors to obtain information on local restaurants, businesses, and city-wide activities. Upon removal of the current ATM kiosk, the new kiosk will be placed in the same location and should be in operation by the summer of 2009. It is proposed that the HBCVB will license this kiosk space in order to assist in the promotion of tourism and creation of additional revenues for the City. The agreement does accommodate an area for an ATM unit. Once selected, the ATM operator will enter into a separate license agreement with the City which will be brought to City Council for approval in the near future. The City Attorney's Office has prepared a non-exclusive license agreement between the City and the HBCVB for a term of five (5) years with one (1) option to extend for an additional five (5) years thereafter. The current license fee is $10.00 per year. The HBCVB will be responsible for all interior and exterior maintenance of the facility. The HBCVB has reviewed and approved the proposed license agreement. Staff recommends that City Council approved this non-exclusive license agreement with the HBCVB. Strategic Plan Goal: L-4 Create an environment that promotes tourism to increase revenues to support community services and transform the city's economy into a destination economy. Environmental Status: Not applicable -2- 2/19/2009 11:02 AM REQUEST FOR CITY COUNCIL ACTION MEETING ®ATE: 3/2/2009 DEPARTMENT I® NUMBER: E® 09-10 Attachment(s): -3- 2/10/2009 11:27 AM ATTACHMENT Yti NON-EXCLUSIVE LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND THE HUNTINGTON BEACH CONFERENCE AND VISITORS BUREAU THIS NON-EXCLUSIVE LICENSE AGREEMENT (the "Agreement") is made and entered into by and between the CITY OF, HUNTINGTON BEACH, a municipal corporation of the State of California ("Licensor"), and the HUNTINGTON BEACH CONFERENCE AND VISITORS BUREAU ("Licensee"), a non profit 501(c)(6) organization. WHEREAS, Licensee represents and warrants that it is a non profit 501(c)(6) organization that wishes to disseminate information regarding events and activities in the City of Huntington Beach; and That there are no lawsuits or claims against it or any of its employees, agents or volunteers, for negligence, violations of law or misconduct; and The City is in the process of constructing a kiosk on Pier Plaza that, in part, will house a information center as well as a automated teller machine. Licensor has relied on Licensee's above representation and warranties as a basis for entering into this Agreement and on that basis desires to allow such use. NOW, THEREFORE,.in consideration of the promises and agreements hereinafter made and exchanged, the parties covenant and agree as follows: 1. PREMISES AND PERMISSION TO USE Licensor owns the real property known as Pier Plaza located in Huntington Beach, California (hereafter the "Premises). Licensor also owns the Information and Visitors Kiosk ("Kiosk") located on Premises. Exhibit "A" contains the exact location of the Kiosk (excluding those portions of the Kiosk that will be used exclusively as an automated teller machine (ATM)); drawings and sketches of the Kiosk are also depicted on Exhibit "A." Exhibit A is attached hereto and incorporated by this reference. Licensor grants to Licensee a non-exclusive license to occupy 08-1714.001 /29665 1 and operate the Kiosk within the Premises. The license granted herein is conditioned on Licensee operating the Kiosk discussed herein The right and permission of Licensee is subordinate to the prior and paramount right of Licensor to use the Premises for public purposes to which it is now and may, at the option of Licensor, be devoted. Licensee undertakes and agrees to use the Premises and to exercise this license at all times in such manner as will not unreasonably interfere with the full use and enjoyment of the Premises by Licensor. Licensee hereby acknowledges title to the Premises is vested in Licensor and agrees never to assail or resist the same, and further agrees that Licensee's use and occupancy of the Premises shall be referable solely to the permission herein given. Licensee agrees to obtain prior written approval from Licensor which may be withheld at the sole discretion of Licensor before any alteration or expansion of the Premises. 2. LICENSEE'S RESPONSIBILITIES FOR OPERATING A KIOSK AT PIER DT A 7A A. General Requirements: (1) Obtain and maintain any governmental licenses, permits and approvals required to enable Licensee to operate the Kiosk as provided herein on the Premises; (2) Provide fully qualified staff in accordance with any applicable governmental and/or City requirements; Kiosk; (3) Provide any equipment, supplies and materials required to operate the (4) Allow ATM owner / employees or their designees access to the frontloading ATM for repair, maintenance, cash removal and/or any other access requirements that will be detailed in a separate agreement between the Licensor and the owner of the ATM. Said 08-1714.001/29665 2 terms and conditions will be provided to Licensee upon execution by Licensor and ATM owner. Licensee is aware of and agrees that the City at its sole and absolute discretion may negotiate terms and conditions of the ATM including location of equipment, hours of operation, construction schedule maintenance etc. and that those terms and conditions may conflict with terms and conditions of this License; in the event of a conflict, the terms and conditions contained in the agreement between Licensor and ATM owner shall govern. (5) Licensee shall not obstruct, cause or permit any obstruction surrounding the Premises or any part thereof in any manner whatsoever. B. Maintenance Requirements: (1) Licensee shall be solely responsible for all exterior and interior maintenance, including landscaping (if needed), roof, paint, and flooring etc. (except for actual ATM machine and enclosed ATM interior area). All choices of exterior paint color must be submitted to Licensor's Director of Community Services for approval; and (2) Licensee shall be solely responsible for non -custodial interior maintenance including any modifications made to interior kiosk space, voice or data equipment etc. (3) Licensee shall be solely responsible for all interior custodial maintenance of the Premises; (4) Licensee shall comply with all written notices served by Licensor with regard to the care and maintenance of the Premises as provided herein. The written notice will specify the work to be done, the estimated cost of such work and the period of time deemed to be reasonably necessary for completion of such work. Should Licensee fail to comply with Licensor's written notice within fifteen (15) days, or within a time deemed reasonably necessary as specified on the notice, Licensor shall then proceed to cause the required work to be performed and Licensee shall be responsible for the cost of such work. 08-1714.001 /29665 3 3. LICENSOR'S RESPONSIBILITIES Licensor shall be responsible for providing to Licensee the Premises for Licensee to provide services set forth herein. Licensor and Licensee will determine hours of operation which must be approved in writing by the Director of Community Services at his or her sole discretion. 4. LICENSE FEE Licensee shall pay Licensor Ten Dollars ($10.00) per year for use of the Premises (the "License Fee"). License fee shall become due and payable on an annual basis on the month and date of the commencement of this License. 5. TIME OF ESSENCE Time shall be the essence of this Agreement and each and all of its terms, covenants or conditions in which performance is a factor. 6. TERM This Agreement shall commence at 12:01 a.m. on March 02, 2009, for a five-year term, which shall expire at 11:59 p.m. on March 02, 2014 , unless extended, or sooner terminated, as provided for herein. At the end of the initial term, this Agreement may renew for one additional five-year term unless either party, with or without cause, gives the other party a minimum of thirty (30) days written notice prior to expiration of the lease of its intent not to renew for the additional term. 7. NON -POSSESSORY INTEREST Licensor retains full possession of the Premises and any improvements or personal property owned by Licensor on the Premises. Licensee will not acquire any interest in the Premises, improvements or property, either temporary, permanent, irrevocable, possessory or otherwise, by reason of this Agreement or by the exercise of the permission given herein. Licensee 08-1714.001/29665 4 shall make no claim to any such interest. Any violation of this provision by Licensee will immediately void and terminate this Agreement. 8. NON -RECORDING Licensee shall not record this Agreement. 9. INDEMNIFICATION DEFENSE AND HOLD HARMLESS AGREEMENT Licensee hereby agrees to protect, defend, indemnify and hold harmless Licensor, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, losses, expenses, judgments, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with Licensee's, (or Licensee's sublicensee, if any) negligent (or alleged negligent) performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by Licensee, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of Licensor. Licensor shall be reimbursed by Licensee for all costs and attorneys' fees incurred by Licensor in enforcing this obligation. Licensee will conduct all defense at its sole cost and expense and Licensor shall approve selection of Licensee's counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as limitation upon the amount of indemnification to be provided by Licensee. 10. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE Licensee acknowledges awareness of Section 3700 et seq. of the California Labor Code, which requires every employer to be insured against liability for workers' compensation. Licensee covenants that it shall comply with such provisions prior to the commencement of this Agreement. Licensee shall obtain and furnish to Licensor workers' compensation and employers' liability insurance in amounts not less than the State statutory limits. Licensee shall require all its 08-1714.001/29665 5 sublicensees and contractors to provide such workers' compensation and employers' liability insurance for all of the sublicensees' and contractors' employees. Licensee shall furnish to Licensor a certificate of waiver of subrogation under the terms of the workers' compensation and employers' liability insurance and Licensee shall similarly require all sublicenses and contractors to waive subrogation. 11. GENERAL PUBLIC LIABILITY INSURANCE In addition to the workers' compensation and employers' liability insurance and Licensee's covenant to defend, hold harmless and indemnify Licensor, Licensee shall obtain and furnish to Licensor, a policy of general public liability insurance, including motor vehicle coverage against any and all claims arising out of or in connection with the Premises. This policy shall indemnify Licensee, its officers, employees and agents, while acting within the scope of their duties, against any and all claims arising out of or in connection with the Premises, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of One Million Dollars ($1,000,000.00) per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than One Million Dollars ($1,000,000.00) for the Premises. This policy shall name Licensor, its officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the Agreement shall be deemed excess coverage and that Licensee's insurance shall be primary. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage in excess of $5,000. 08-1714.001 /29665 12. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS Prior to commencement of this Agreement, Licensee shall furnish to Licensor certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this Agreement; these certificates shall: (a) provide the name and policy number of each carrier and policy; (b) shall state that the policy is currently in force; and (c) shall promise to provide that such policies shall not be canceled or modified without thirty (30) days' prior written notice of Licensor; however ten (10) days' prior written notice in the event of cancellation for nonpayment of premium. Licensee shall maintain the foregoing insurance coverages in force during the entire term of the Agreement or any renewals or extensions thereof or during any holdover period. The requirement for carrying the foregoing insurance coverages shall not derogate from Licensee's defense, hold harmless and indemnification obligations as set forth in this Agreement. Licensor or its representatives shall at all times have the right to demand the original or a copy of any or all the policies of insurance. Licensee shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. 13. INSURANCE HAZARDS Licensee shall not commit or permit the commission of any acts on the Premises nor use or permit the use of the Premises in any manner that will increase the existing rates for, or cause the cancellation of any liability, property, or other insurance policy for the Premises or required by this Agreement. Licensee shall, at its sole cost and expense, comply with all requirements of any insurance carrier providing any insurance policy for the Premises or required by this Agreement necessary for the continued maintenance of these policies at reasonable rates. 08-1714.001 /29665 7 14. RELOCATION AND ASSISTANCE In the event this Agreement is terminated for any reason by Licensor, Licensee shall not be entitled to any relocation rights or benefits and expressly waives such benefits and rights under local, State or Federal relocation assistance plans. 15. INSPECTION OF PREMISES Without advance notice given by Licensor to Licensee, Licensee shall permit Licensor or Licensor's agents, representatives or employees to enter the Premises at all reasonable times for the purpose of inspecting, investigating and surveying the Premises to determine whether Licensee is complying with the terms of this Agreement and for the purpose of performing other lawful acts that may be necessary to protect Licensor's interest in the Premises or to perform Licensor's duties under this Agreement. Licensor also shall have the right in its sole discretion to perform any and all work of any nature necessary for the preservation, maintenance and operation of property owned, controlled or occupied by Licensor. If practicable, Licensee shall be given reasonable notice when such work becomes necessary, and Licensee shall adjust its operations on the Premises in such a manner that Licensor may proceed. 16. LICENSOR'S OPTION TO CLOSE THE PREMISES Licensor may close the Premises without liability whatsoever and without advance notice to Licensee therefore at any time as Licensor in its sole discretion deems necessary for the protection of life, limb or property, or for public health, safety or welfare purposes, or upon reasonable notice to effect any repair, remodeling or rebuilding deemed necessary by Licensor in its sole discretion. In addition, upon reasonable notice, Licensor may close the Premises at its sole discretion without liability whatsoever if Licensor is hosting an event in the area that conflicts with the operation of the Kiosk. Determination of said conflict shall be at the sole discretion of the Director of Community Services. 08-1714.001/29665 8 17. PUBLIC NECESSITY Licensor may, suspend or revoke this Agreement without liability to Licensee when public necessity so requires, or suspend operation immediately hereunder temporarily in the event of public emergency, as may be determined by the City Administrator in his or her sole discretion. Such suspension will terminate when the public necessity or emergency no longer exists. 18. PAYMENT OF UTILITY CHARGES Licensee shall open its own account with Southern California Edison and shall pay, and hold Licensor and the property of Licensor, free and harmless from, all charges for all public utility services including gas, water electricity, on the Premises during the entire term of this Agreement or any renewals or extensions thereof. 19. PERSONAL PROPERTY TAXES AND BUSINESS LICENSE Licensee shall timely pay all taxes, assessments, or other charges levied or imposed _ by any governmental entity on the trade fixtures and other personal property placed by Licensee in, on, or about the Premises including, without limiting the generality of the other terms used in this Section, any shelves, counters, partitions, fixtures, machinery and equipment, brought on the Premises by Licensee. If required by ordinance, Licensee shall maintain a business license from Licensor. 20. PAYMENT OF OBLIGATIONS Licensee shall promptly pay, at its sole cost and expense, before they become delinquent, any and all bills, debts, liabilities and obligations incurred by Licensee in connection with Licensee's occupation and use of the Premises and/or operation of the Information Kiosk. Upon request, Licensee shall promptly furnish to Licensor satisfactory evidence establishing such payment. 08- t 7 t 4.001 /29665 9 21. COMPLIANCE WITH LAWS Licensee, at its sole cost and expense, shall comply with all statutes, ordinances, regulations and requirements of all governmental entities, including, without limitation, Federal, State, county or municipal, relating to Licensee's use and occupancy of the Premises whether such statutes, ordinances, regulations and requirements be now in force or hereinafter enacted. This Agreement is expressly subject to the laws, regulations and policies of Licensor. Licensee shall deliver to Licensor a copy of any notice from any governmental entity received by Licensee regarding any alleged violation of law regarding the Agreement or Premises or from any person allegedly entitled to give notice under any conditions, covenants, or restrictions binding or affecting the Premises. The judgment of any court of competent jurisdiction, or the admission by Licensee in a proceeding brought against Licensee by any government entity, that Licensee has violated any such statute, ordinance, regulation or requirement shall be conclusive as between Licensor and Licensee and shall be grounds for termination of this Agreement by Licensor. 22. DAMAGE, DESTRUCTION OR NUISANCE Licensee shall not commit or permit the commission by others of any damage or destruction of, on, or to the Premises. Licensee shall not maintain, commit or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Premises; and Licensee shall not use or permit the use of the Premises for any unlawful purpose. 23. LIENS Licensee shall not permit any mechanics' or materialmens' or other liens to stand against the Premises by reason of any use or occupancy by Licensee, or any person claiming under Licensee. If Licensee desires to contest or withhold any payment which would lead to the placement of any liens or contest any such liens, then prior to commencing such contest and 08-1714.001 /29665 10 withholding, Licensee shall furnish Licensor with a bond to secure the payment of such obligation and obtain Licensor's prior written approval of the bond. 24. NO CONDEMNATION VALUE TO LICENSEE If any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to Licensor. This Agreement shall have no condemnation value to Licensee. 25. TERMINATION Licensor or Licensee may terminate this Agreement upon thirty (30) days prior written notice to either party. 26. INSTALLATION AND REMOVAL OF TRADE FIXTURES Licensee shall provide any equipment, supplies and materials required to operate the Information Kiosk. In addition, Licensee may with prior written consent of the Licensor during the term of this Agreement and any renewal or extension thereof, at Licensee's sole cost and expense, install and affix in, to, or on the Premises such items, herein called "trade fixtures," for use in Licensee's trade or business as Licensee may, deem advisable. Any and all such trade fixtures that can be removed without structural damage to the Premises shall remain the property of Licensee and may be removed by Licensee at any time prior to the expiration or sooner termination of this License. 27. RESTORATION AND SURRENDER OF PREMISES/TITLE TO IMPROVEMENTS On expiration or termination of this Agreement, Licensee shall, without compensation to Licensee, promptly surrender and deliver the Premises to Licensor in as good condition as such were at the commencement date of this Agreement, reasonable wear and tear 08-1714.001 /29665 11 excepted. Licensee also shall, without compensation to Licensee, surrender all improvements to Licensor in good condition and repair, ordinary wear and tear excepted, free and clear of all liens and encumbrances. Licensee also shall remove all of its trade fixtures and other personal property (all trade fixtures and/or personal property purchased by the City shall remain the property of the City and shall not be removed). Licensor may in its sole discretion accept all or any portion of the Premises, as then improved with improvements and no sum whatsoever shall be paid to Licensee or any other person; or Licensor may require Licensee to remove all or any portion of such improvements, at Licensee's own risk and cost and expense; or Licensor may itself remove or have removed all or any portion of such improvements, at Licensee's own risk and cost and expense. If required by Licensor to do so, in removing any such improvements, Licensee shall restore the Premises as nearly as possible to the conditions existing prior to their installation or construction. All such removal and restoration shall be to the satisfaction of Licensor and shall be completed within thirty (30) days of the expiration or termination of this Agreement, provided, however, that Licensee shall be considered a holdover licensee after expiration or termination of the Agreement until the time Licensee completes this removal and restoration work, including, without limitation, the removal of all of its trade fixtures and other personal property left on the Premises. In addition, all of Licensee's trade fixtures and other personal property left on the Premises after the expiration of this 30-day period, regardless of cause, shall be deemed abandoned by Licensee In Licensor's sole discretion, it may choose to do one or more of the following: (1) take any or all of such trade fixtures and other personal property as Licensor's property; (2) store any or all of such trade fixtures and other personal property in a public warehouse or other location at the sole cost, expense and risk of Licensee, and for the account and in the name of Licensee; or (3) dispose of any or all of such trade fixtures and other personal property at the sole cost, expense and risk of Licensee. In addition, Licensee's indemnification, hold harmless and defense obligations set forth in this 08-1714.001 /29665 12 Agreement shall apply to such trade fixtures and/or other personal property, and to Licensor's action with respect thereto. In addition to the above, on or before expiration or termination of this Agreement, Licensor may provide written notice to Licensee that Licensee shall, without compensation to Licensee, raise the Kiosk and dispose of all materials and restore the Premises as nearly as possible to the conditions existing prior to their installation or construction at the Licensor's discretion. 28. DEFAULT BY LICENSEE Should Licensee default in the performance of any of the terms, conditions, or obligations contained in the Agreement, Licensor may, in addition to the remedies specified herein, re-enter and regain possession of the Premises in the manner provided by the laws of the State of California then in effect. 29. INSOLVENCY OF LICENSEE The insolvency of Licensee as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Licensee, or the making of a general assignment for the benefit of creditors by Licensee, or the filing of a petition in bankruptcy shall terminate this Agreement and entitle Licensor to re-enter and regain possession of the Premises. 30. CUMULATIVE REMEDIES The remedies given to Licensor in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. 31. NO ASSIGNMENT OR SUBLEASE This Agreement is personal to Licensee, and Licensee shall not assign, sublease, transfer or sell this Agreement or any privilege hereunder in whole or in part, and any attempt to do so will be void and confer no right on any third party. 08-1714.001/29665 13 32. WAIVER OF DEFAULT The waiver by Licensor of any default by Licensee of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent default by Licensee either of the same or another provision of this Agreement. 33. CONSENT When Licensor's consent/approval is required under this Agreement, its consent/approval for one transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence of the same or any other transaction or event. 34. FORCE MAJEURE — UNAVOIDABLE DELAYS Should the performance of any act required by this Agreement to be performed by either Licensor or Licensee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any, other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act shall be extended for a period equivalent to the period of delay, and performance of the act during the period of delay shall be excused. Provided, however, that nothing contained in this Section shall excuse the prompt payment of the License Fee or other consideration by Licensee as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, Licensor or Licensee, required to perform the act. 35. NOTICE Unless specifically providing for verbal or electronic notice, all notices, certificates, or other communications required to be given hereunder shall be in writing and made in the following manner, and shall be sufficiently given and deemed received when (a) personally delivered; or (b) three (3) business days after being sent via United States certified mail — return receipt requested; or (c) one (1) business day after being sent by reputable overnight courier, in each 03-1714.001/29665 14 case to the addresses specified below; provided that Licensor and Licensee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent: LICENSOR: LICENSEE: City of Huntington Beach Huntington Beach Conference and Visitors Bureau Attn: Director of Economic Development Attn: Steve Bone, President and CEO 2000 Main Street 301 Main Street, Suite 208 Huntington Beach, CA 92647 Huntington Beach, CA 92648-5171 36. BINDING ON HEIRS AND SUCCESSORS All the terms, covenants and conditions of this Agreement shall inure to the benefit of and be binding upon the parties and their successors, including, without limitation, their assignees, encumbrancers, occupiers or users, sublicensees or other transferees. The provisions of this Section shall not be deemed as a (1) waiver of any of the prohibitions and conditions against assignments, encumbrances, occupations or uses, sublicensees or other transfers hereinbefore set forth, or (2) Licensor's consent thereto. 37. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the termination or expiration of this Agreement, shall so survive. 38. WAIVER OF CLAIMS Licensee hereby waives any claim against Licensor, its officers, elected or appointed officials, employees, agents or volunteers for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Agreement, or any part thereof, or caused by any judgment or award in any suit or proceeding declaring this Agreement null, void or voidable, or delaying the Agreement or any part thereof from being carried out. 08-1714.001/29665 15 39. CONFLICT OF INTEREST Licensee warrants and covenants that no official or employee of Licensor, nor any business entity in which an official or employee of Licensor is interested, (1) has been employed or retained by Licensee to solicit or aid in the procuring of this Agreement; or (2) shall be employed by Licensee in the performance of this Agreement without the immediate written divulgence of such fact to Licensor. In the event Licensor determines that the employment of any such official, employee or business entity is not compatible with such official's or employee's duties as an official or employee of Licensor, Licensee, upon request of Licensor, shall terminate such employment immediately. For default or violation of this Section, Licensor shall have the right both to terminate this Agreement without liability and, in its discretion, recover the full amount of any such compensation paid to such official, employee or business entity. No official or employee of Licensor shall have any financial interest in this Agreement in violation of the applicable provisions of the California Government Code. 40. INDEPENDENT CONTRACTOR Licensee is, and shall be, acting at all times in the performance of this Agreement as an independent contractor herein and not as an employee of Licensor. Licensee shall secure at its expense, and be responsible for all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions of Licensee and its officers, agents and employees and all business licenses, if any, in connection with the services to be performed hereunder. 41. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded 08-1714.001/29665 16 from such provisions, and do not interpret, define, limit or describe, or construe the intent of the parties or affect the construction or interpretation of any provision of this Agreement. 42. MODIFICATION No waiver or modification of any language in this Agreement shall be valid unless in writing and duly executed by both parties. 43. INTERPRETATION OF THIS AGREEMENT The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the remaining covenants and provisions of this Agreement. No covenant or provision shall be deemed dependent upon any other unless so expressly provided here. As used in this Agreement, the masculine or neuter gender and singular or plural number shall be deemed to include the other whenever the context so indicates or requires. Nothing contained herein shall be construed so as to require the commission of any act contrary to law, and wherever there is any conflict between any provision contained herein and any present or future statute, law, ordinance or regulation contrary to which the parties have no right to contract, then the latter shall prevail, and the provision of this Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. 44. GOVERNING LAW This Agreement shall be governed and construed in accordance with the laws of the State of California. 08-1714.001/29665 17 45. ATTORNEY' S FEES In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non -prevailing party. 46. DUPLICATE ORIGINAL The original of this Agreement and one or more copies hereto have been prepared and signed in counterparts as duplicate originals, each of which so executed shall, irrespective of the date of its execution and delivery, be deemed an original. Each duplicate original shall be deemed an original instrument as against any party who signed it. 47. ENTIRETY The parties acknowledge and agree that they are entering into this Agreement freely and voluntarily following extensive arm's length negotiations, and that each has had the opportunity to consult with legal counsel prior to executing this Agreement. The parties also acknowledge and agree that no representations, inducements, promises, agreements or warranties, oral or otherwise have been made by that party, or anyone acting on that party's behalf, which are not embodied in this Agreement, and that that party has not executed this Agreement in reliance on any representation, inducement, promise, agreement, warranty, fact or circumstance not expressly set forth in this Agreement. The Agreement, and the attached exhibits, contain the entire agreement between the parties respecting the subject matter of this Agreement, the Premises, the licensing of the Premises to Licensee, or the term created under this Agreement and supersede all prior understandings and agreements, whether oral or in writing between the parties respecting the subject matter hereof. 08-1714.001 /29665 18 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers on /)%A -,, e— C-11 e:!�A, 2009. LICENSEE: HUNTINGTON BEACH CONFERENCE AND VISITORS' BUREAU By: �S print name ITS: (circle one) Chainn n/President/V ce President AND B Lvz�� Y• •t L- 1... GF�Ld S print name ITS: (circle one) Secretaryof Financia e Asst. Secretary — Treasurer LICENSOR: CITY OF HUNTINGTON BEACH, a municipal corporation of the State of Califo m Mayor City Clerk !JA%oft INITIATED AND APPROVED: Director of Econerni,� Development REVIE D APPROVED: eitJ Administrator APPROVED AS TO FORM: City Attorney LP .01 08-1714.001/29665 19 - A �n z PROJEGT: SIERRA 51X PACK SHOWER BUILDING XXX Ol m . N o C1 1(R XXX sHEETTITLE TITLEI a 0N9u,Hi R4NITEC a �,e�kR ao _aaE— R9117 m 7ITLE2 ► r, �_ 4 �� — — — —_ — �� � �� �I —�� i� .� si, z, u a — _ Pofty Number. NC869775 Date Entered: 2/12/2009 DATE (MMMDrfrm CERTIFICATE OF LIABILITY,INSU NCE 1 2/12/2009 PRODUCER Brilliant insurance Services 20720 Ventura Blvd., Ste. 270 Woodland Hills, CA 91364 THIS CERTIFICATE IS ISSUED AS A MATTER OF MFORMAi10N ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Phone: (818) 264-0300 Fax: (818)264-0699 INSURERS AFFORDING COVERAGE NAIC# INSURED Huntington Beach Conference and INSURERA:Nautilus Inauranc:e Co. INSURER B: Visitors Bureau INSURERC. 301 Main Street, Suite #208 Huntington Beach, CA 92648 INSURER D: INSURER E f`AVCOAI2CG THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMEDASOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT Vd TH 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. FISR D' NSURANCE POUCYNUMBER POLICYEFFECTNE POLICY EXPIRATION LIMITS GENERAL LIABILITY EACH OCCURRENCE $1,000,000 AMAG PR MI ET aoemirmnea $100,000 A COMMERCIALGENERAL LIABILITY tTC869775 2/12/2009 2/12/2010 MEDEXP(Art onaperson) 55,000 CLAIMS MADE ® OCCUR PERSONAL BADVINJURY S1,0D0,000 - GENERAL AGGREGATE $2,000,000 GENL AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPIOPAGG $1,000,000 POLICY JPCT LOC Pm E AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ANY AUTO (Ea aoddent) BODILY INJURY S ALL OWNED AUTOS SCHEDULEDAUTOS (Pet person) BODILY INJURY $ HIREDAUTOS NON -OWNED AUTOS (per accident) PROPERTY DAMAGE $ (Per sodden) GARAGE LIABILITY AUTO ONLY -EA ACCIDENT S OTHER THAN EAACC S ANYAUTO $ AUTO ONLY: AGG EXCESS I UMBRELLA LIABILITY EACH OCCURRENCE S AGGREGATE 5 OCCUR 1:1CLAIMS MADE .APPR �TFD AS TO FO $ DEDUCTIBLE RETENTION $ T L R ' !C(j'' AT14S WORKERSOOMPENSATION j NEY T�RYSLM1l�i5 ?}+- AND EMPLOYERS' LIABILITYYIN I EL. EACH ACCIDENT S ANY PROPRIETORIPARTNERIEXECUME E.L DISEASE -EA EMPLOYEE S OFFICEPM&MBER EXCLUDED? (Mandatory In NH) EL DISEASE -POLICY LIMIT $ Hpy8sa descibe udder 5PECUU.PROYISIONS Cetox OTHER A Building Coverage �1:869775 2/12/2009 2/12/2010 Limit~ $100,000 DESCRIPTION OF OPERATDN8I LOCATONS I VEHICLES I EXCLUSKM ADDED BY ENDORSEMENT! SPECIAL PROVISIONS The city, its officers, eleotkd Or appointed officials, employees agents, and volunteers are to be covered as additional inusreds by separate attached endorsements) as respects arising out of action performed by or on behalf of tha contractor, premises owned, occupied or used by the contractor. rRWnFIC6TF 114111 nFR CANE-.b! .LAIiUN City of Huntington Beach SHOULD ANY OF THE ABOVE D BED POLICIES SEC BEFORE THE F"IRATION 0 - DATE THEREOF, TH£ I INSURER EAVOR TOM DAYS WRITTEN 2000 Main Street NOTICE TO THE CERTIF ATE HOLDER MED TO THE LEFT, BUT F RE TO DO SO SHALL Huntington Beach, CA 92648 IMPOSE NO OBL16A7 N OR LIABILITY F ANY K THE INBU ITS AGENTS OR REPRESENTATVES. AUTHORIZED REP ATN£ ACORD 25 (2009101) ct} TstsO-NU�YGVKI l caRLra+Iwslvro. rut Tty.rus .cavl.cv. The ACORD name and logo are registered marks of ACORID Produced using Forms Boss Ptus Wltwara w -Fo SBoee.com; tropressiYe Publishing 800-=8.1977 PWGY-NUMR---xm 10 ROA City of Huntington Beach, 2000 Main Street, Huntington Beach, CA 92648. The city, its officers, elected or appointed officials, employees agents, and volunteers are to be covered as additional insured's by separate attached endorsement(s) as respects arising out of action performed by or on behalf of the contractor, premises owned, occupied or used by the contractor. V or tow-fie&MWdftj or i -M PC : vw-extr bWD*-Y0- Oro M-W, 4dMIIIYWI*..e AM IF31 L ifttti-R-41" '* , :.camp homeat .1 - 1U., - .91A.1.- - Rf�wblew?W �'w ih,�*W;Of in F (ADQWL CERTIFICATE OF LIABILITY INSURANCE DATE 01/13/MIDDIYYYYl 01/13/2009 PRODUCER - THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION AUTOMATIC DATA PROC INS AGCY INC ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 71 HANOVER RD MS 625 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR FLORHAM PARK, NJ 07932 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. (877)677-0428 XV770 70A INSURERS AFFORDING COVERAGE NAIC # INSURED HUNTINGTON BEACH CONFERENCE INSURER A:THE TRAVELERS INDEMNITY COMPANY OF CONNEC11CUT AND VISITORS BUREAU INSURER B: 301 MAIN ST, STE 208 INSURER C: HUNTINGTON BEACH, CA 92648 Inlcl fora n- E: COVERAGES 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. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. (NuR TYPE OF INSURANCE POLICY NUMBER POLICYEFFE" DATE (MMIDO Y) POLICYEXPIRATION DATE tMMlDDtYYj LIMITS GENERAL DABIITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE OCCUR EACH OCCURRENCE $ DAMAGE TO RENTED $ MED EXP oneperson) $ PERSONAL & ADV INJURY $ ENERAL E $ GEML AGGREGATE LIMIT APPLIES PER: PRO POLICY JECT f LOC PRODUCTS - COMA/OP AGG $ AUTOMOBILE UA13 UTY ANY AUTO ALL OWNED AUTOS SCHEDULEDAUTOS HIRED AUTOS - NON-OWN NON -OWNED AUTOS . ,AS . ..... ,_ _ -' c 4,);�, O �.OY9R Fi A�iVA A) AJAy��I f COMBINED SINGLE LIMIT (Ea accident) $ BO�DILLYY INN JURY p0 BODILY INJURY (Per accident) $ PROPERTY DAMAGE PROPERTY (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHERTHAN EA ACC AUTO ONLY: AGG $ $ EXCESSNMSRELLALIABILITY OCCUR CLAIMS MADE DEDUCTIBLE RETENTION $ EACH OCCURRENCE $ AGGREGATE $ - $ $ A woRICERSCOMPENSATloxAND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNER/EXECUTNE OFFICERIMEMBER EXCLUDED? Ifyyeess describe under SPECIALPROVISIONS bebo UB-9343M923-09 01/01/2009 01/0112010 X T uai s °R EL EACH ACCIDENT $ 1,000,000 EJ_. DISEASE -EA EMPLOYEE $1,000,000 -- E.L. DISEASE -POLICY LIMIT $1,000,000 OTHER I DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES 1 EXCLUSIONS ADDED BY ENDORSEMENT SPECIAL PROVISIONS IN THE EVENT OF NON-PAYMENT OF PREMIUM, ONLY TEN(10) DAYS NOTICE OF CANCELLATION SHALL BE GIVEN. CERTIFICATE HOLDER CANCELLATION CITY OF HUNTINGTON BEACH 2000 MAIN ST. HUNTINGTON BEACH, CA 92648 ACORD 25 (20011081 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEM BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORRED REPRESENTATIVE CORPORATION 19& IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement, A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001108) RCA ROUTING SHEET INITIATING DEPARTMENT: Economic Development SUBJECT: Approval of License Agreement with HBCVB for use of Visitors Kiosk at Pier Plaza COUNCIL MEETING DATE: March 2, 2009 . RCA ATTACHMENTS STATUS',.=` Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable Contract/Agreement (w/exhibits if applicable) Attached (Signed in full by the City Attorney) Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached ❑ (Approved as to form by City Attorne) Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached Not Applicable ❑ Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑ Not Applicable Bonds (If applicable) Attached t Applicable Staff Report (If applicable) Nott Applicable Commission, Board or Committee Report (If applicable) Attached Not Applicable Findings/Conditions for Approval and/or Denial Attached ❑ Not Applicable EXPLANATi oOM F0R Mi I=H G ATTACHMENTS HMv ENT REVIEWED RETURNED FOR DE® Administrative Staff ( ) ) Deputy City Administrator (Initial) ( ( ) City Administrator (Initial) ( ) ( ) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: � RCA Author: Krause, Ext. 1529 City of Huntington Beach 2000 Main Street • Huntington Beach, CA 92648 OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK March 4, 2009 Huntington Beach Conference and Visitors Bureau Attn: Steve Bone, President and CEO 301 Main Street, Suite 208 Huntington Beach, CA 92648-5171 Dear Mr. Bone Enclosed for your records a copy of the Non -Exclusive License Agreement bet iveen the City of Huntington Beach and the Huntington Beach Conference and Visitors Bureau for the use of the visitors kiosk located at Pier Plaza. Sincerely, Joan L. Flynn, CMC City Clerk JF:pe Enclosure G:followup:agrmtltr Sister Cities: Anjo, Japan • Waitakere, New Zealand ( Telephone: 714-536-5227 )