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HomeMy WebLinkAboutSee Scopes - 2008-04-07 Council/Agency Meeting Held: Deferred/Continued to: *Appr ved ❑ Conditionally Approved ❑ Denied Cit Jerk' Signat e Council Meeting Date: July 16, 2012 Department ID Number: ED 12-011 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Bob Hall, Deputy City Manager/Director of Economic Development Paul Emery, Deputy City Manager/Director of Community Services SUBJECT: Approve and authorize execution of Amendment No. 1 to License Agreement between the City and See Scopes for coin operated telescopes on the Pier Statement of Issue: The City Council is asked to approve Amendment No. 1 with See Scopes which provides a five (5) year extension to the original License Agreement for their coin operated telescopes on the City's pier. Financial Impact: License Agreement provides for a 50% share of all revenue from the telescopes. The License generates revenue for the City approximately $1,500 and $2,500 annually. Recommended Action: Motion to: Approve and authorize the Mayor and City Clerk to execute "Amendment No. 1 to License Agreement Between the City of Huntington Beach and See Scopes." Alternative Action(s): Do not approve Amendment and direct staff as necessary. HB -1.09- Item 14. - 1 REQUEST FOR COUNCIL ACTION MEETING DATE: 7/16/2012 DEPARTMENT 1D NUMBER: ED 12-11 Analysis: See Scopes has operated the telescopes on the pier since 2008. See Scopes has kept the telescopes well maintained. The telescopes provide an added attraction for the Pier area. The license fee is fifty percent (50%) of their gross monthly receipts. This fee will continue over the term of the extended Agreement through April 2016. All other conditions of the original Agreement shall remain in full force and effect. In August 2011, the Economic Development Committee discussed See Scopes and recommended an extension to the License Agreement. Environmental Status: Not applicable Strategic Plan Goal: Enhance Economic Development Attachment(s): 1. "Amendment No. 1 to License Agreement Between the City of Huntington Beach and See Scopes" 2. License Agreement between the City of Huntington Beach and See Scopes dated April, 2008 Item 14. - 2 HB -110- ATTACHMENT # 1 AMENDMENT NO. 1 TO LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND SEE SCOPES THIS AMENDMENT is made and entered into by and between the CITY OF HUNTINGTON BEACH, a California municipal corporation, hereinafter referred to as "City," and the SEE SCOPES, a California corporation,hereinafter called "Licensee." WHEREAS, City and Licensee are parties to that certain agreement, dated April 7, 2008, entitled "LICENSE AGREEMENT BY AND BETWEEN THE CITY OF HUNTINGTON BLACK Aiv-'7i SEE SCOPES,"which agreement shall hereinafter be referred to as the"Original - Agreement,"and City and Licensee wish to extend the Term of the Original Agreement for an additional five-year period, NOW, THEREFORE, it is agreed by City and Licensee as follows: l. EXTENSION OF TERM[ Effective as of April 6, 2011, the Original Agreement is hereby extended for an additional period of five (5) years. Accordingly, the Original Agreement shall now expire on April 6, 2016. 2. REAFFIRMATION Except as specifically modified herein, all other terms and conditions of the Original Agreement shall remain in fall force and effect. 1 12-3325/79153 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their authorized officers on ��j , 2012. LICENSEE- CITY: SEE SCOPES CITY OF HUNTINGTON BEACH, A California corporation a municipal corporation of the State of California By: May (print or type name) Its: (circle one)Chairmarr residen ice President City CVrk �. a By: 0"'—' 1 .1 INITIATED AND APPROVED: C.A qw L-y 0 4 1 L-t- (print or type name) Lc�(� Its: (circle one) ecretary, hief Financial Officer/ Director of Economic Development Ass . ecretary-Treasurer A OVED FORM: 0i Attorney + � �l REVI AND APPROVED: Ci ager 2 12-3325/79153 ATTACHMENT #2 C- Council/Agency Meeting Held: ,AQa_ Deferred/Continued to: Tg Appr ec� ❑ Conditionally Approved ❑ Denied G�City erk's Sidnatut Council Meeting Date: 4/7/2008 Department D Number: CS08-001 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBE4 SUBMITTED BY: PAUL EMERY, INTERIM CITY ADMINISTRATOR f PREPARED BY: JIM B. ENGLE, DIRECTOR, COMMUNITY SERVIC SUBJECT: APPROVE AGREEMENT WITH SEE SCOPES FOR LESCOPE SERVICE TO THE PUBLIC ON THE MUNICIPAL PIER Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachments) Statement of Issue: There is a need to approve an agreement for provision and operation of coin-operated telescopes on the municipal pier. Funding Source: Not applicable Recommended Action: Motion to: Approve License Agreement between the City of Huntington Beach and See Scopes for coin- operated telescopes on beach and pier, and authorize the Mayor and City Clerk to execute same. Alternative Action(s): Do not approve agreement with See Scopes, and discontinue the operation of coin-operated telescopes on the beach and pier. Analysis: Since 1967, coin-operated telescopes have been available for public use on the municipal pier. Requests for Proposal were sent out to appropriate companies that provide this service. The proposal was also available on the city's website. As is city protocol, the solicitation process was coordinated through the Purchasing Division of the Finance Department. Upon review of the proposals, the successful bidder was See Scopes. See Scopes has been operating coin-operated viewing instruments since 1985 in Hawaii and numerous piers and other locations in northern and southern California. There were originally five (5) telescopes on the pier. This new contract calls for six (6) telescopes, with two (2) being accessible to the disabled. This is a three-year agreement. Ll xB -115- Item 14. - 7 REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 4/7/2008 DEPARTMENT ID NUMBER: CSOS-001 Strategic Plan Goal: Providing coin-operated telescopes on the municipal pier meets the city goal of "helping to provide quality public services with the highest professional standards to meet community expectations and needs, assuring that the city is sufficiently staffed and equipped overall. This public service will also create an environment that promotes tourism to increase revenues to support community services and transfer the city's economy into a destination economy." Environmental Status: Not applicable Attachmeg s): gg-' •- • B - o • 1. Agreement with See Scopes -2- 3/24/2008 2:25 PM Item 14. - 8 xB -116- ATTACHMENT # 1 LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND SEE SCOPES This License Agreement is made and entered into by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ("CITY") and See Scopes, a California company("LICENSEE"). WHEREAS, CITY is the owner of certain real property located on the western part of Main Street, Huntington Beach, west of:Pacific,Coast Highway in the City of Huntington Beach,. Orange County, California, and commonly known as the Huntington Beach Pier and Pier Plaza (hereafter referred to as"the Property); and LICENSEE desires to install, maintain and operate a number of Coin Operated Telescopes (hereinafter referred to as`Telescopeg) on the Property for a fee to users under the terms contained in this License Agreement; and CITY desires to grant LICENSEE a license (hereafter referred to as"the License to install, maintain and operate the Telescopes on specific locations within the Property area as determined at the sole discretion of the Community Services Director in the manner set forth in this License Agreement; and CITY and LICENSEE wish to enter into this License Agreement defining their respective rights and responsibilities concerning said License. NOW, THEREFORE, in consideration of the promises and Agreements hereinafter made and exchanged, the CITY and LICENSEE covenant and agree as follows: SECTION 1. SCOPE OF LICENSE; STATEMENT OF WORK; ACCEPTANCE OF RISK LICENSEE may enter upon the Property for the purpose of installing, operating and maintaining the Telescopes as set forth in Exhibit A attached hereto and incorporated herein by 17540 1 Item 14. - 10 HB -118- reference. Installation shall take place on Q 12 (Installation datd). Prior to Installation Date, CITY and LICENSEE shall meet to determine a work schedule and specific locations for the Telescopes. CITY may at its sole discretion set forth the date of installation as well as the number and location of Telescopes. However, the installation date shall be no later than and the number of Telescopes shall be no less than 5/X LICENSEE shall furnish, at its own expense, all labor, plans, tools, equipment, supplies, . transportation, utilities and all other items, services, applicable permits, and Telescopes necessary to complete and construct/install the Telescopes in a good and workmanlike manner. Maintenance: In the event one of the Telescopes becomes inoperable, including coin intake, as determined by CITY or LICENSEE, the machine shall be immediately repaired or replaced. LICENSEE agrees to assume the.risk of all loss or damage arising out of the nature of the scope of this License, during its progress or prior to acceptance, from the action of the elements, from any unforeseen difficulties which may arise or be encountered in the prosecution of work, and for all other risks of any description connection with the work, including, but not limited to, all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as are herein expressly stipulated to be borne by CITY, and for well and faithfully completing the work within the stipulated time and in the manner shown and described in this Agreement, and in accordance with the requirements of CITY under them for the compensation set forth in the.accepted proposal for coin operated viewing instruments from LICENSEE to CITY(Proposal). If a service was not included in the Proposal, LICENSEE may provide the service at CITY request on a time and materials basis. 17540 2 HB -119- Item 14. - 11 LICENSEE acknowledges that it is fully familiar with all the terms, conditions and obligations of this Agreement, the location of the job site, and the conditions under which the work is to be performed, and that it enters into this Agreement based upon.its investigation of all such matters and is relying in no way upon any opinions or representations.of CITY. It is agreed that the terms of the Proposal, Specifications of the Coin Operated Telescopes as well as any construction documents if any are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, shall be bound by said documents insofar as they: relate in part or in any way, directly or indirectly, to the work covered by this Agreement. Should there be any conflict between the terms of this License, the Proposal, or any construction documents, then this License shall control and nothing herein shall be considered as an acceptance of the terms of said proposal which is in conflict herewith. SECTION 2. TERM This License shall commence upon its approval by CITY and shall terminate r7 t p e- S unless extended, or sooner terminated, as provided for herein. SECTION 3. LICENSE FEE In consideration of this License, LICENSEE agrees to pay to CITY a fee(ticense Fed)of fifty percent (50%) of the gross monthly receipts of each Telescope for the use of the Property to operate the Telescopes. Gross monthly receipts shall include each time the Telescope is activated regardless of whether compensation was actually received by LICENSEE. LICENSEE shall pay the License Fee monthly on or before the 15th day of each month during the term of this License Agreement to the CITY at the City Treasurers Office, P.O. Box 7.11, Huntington Beach, California, 92648, or at such other place or places as CITY may from time-to-time designate by 17540 3 Item 14. - 12 HB -120- written notice delivered to LICENSEE in the manner set forth in the Notice Section of this License Agreement. SECTION 4. LATE CHARGE AND PENALTY If the License Fee is not received by the City Treasurer by the fifteenth day of each . month during the term of this License Agreement, or the next business day if the fifteenth day falls on a weekend or holiday, LICENSEE shall pay the following late charge and.penalty: (1) a late charge of ten percent (10%) per week shall be applied to any outstanding balance after any payment hereunder is due but unpaid; and (2) one and a half percent (2%) penalty per month shall be added for each month the License Fee is due but unpaid. SECTION 5. BOOKS AND RECORDS LICENSEE shall keep true and accurate books and records showing all of its business transactions in separate records of account of the fee for Telescopes use in a manner acceptable to CITY, and CITY and/or its designated representatives shall have the right, at all reasonable times, to inspect such books and records including, without limitation, State of California sales or use tax returns or other State return records, and LICENSEE hereby agrees that all such records and instruments shall promptly be delivered and made available to CITY and/or its designated representatives within thirty (30) days of receiving written request therefor. LICENSEE shall furnish to CITY and/or its designated representatives copies of its quarterly California sales and use tax returns related to this License at the time each is filed with the State of California. The books and records shall show the total amount of Gross Sales made each calendar month in, on, or from the Property. LICENSEE agrees to maintain at its central offices all records, books of account and cash register tapes, showing, or in any way pertaining to the Gross Sales made in, on, or from the Property during such calendar month, including, without 17540 4 HB -121- Item 14. - 13 limitation, State of California sales or use tax returns or other State tax returns, for a period of five(5) years following the close of each calendar month. SECTION 6. RESERVATIONS ENCUMBRANCES AND RIGHTS-OF-WAY A. CITY expressly reserves the right to convey or encumber the Property, in whole or in part, for any purpose not inconsistent or incompatible with the rights or privileges of LICENSEE under this License Agreement. In addition, LICENSEE agrees to subordinate this LICENSE to any existing or future CITY financing regarding the Property or any portion thereof. LICENSEE also agrees to cooperate and provide any documentation necessary for CITY to obtain.any such financing. B. This License is subject to pre-existing contracts, licenses, easements, encumbrances and claims affecting the Property, if any, and it is made without warranty by CITY of title, condition.or fitness of the land for the stated or intended use. SECTION 7. TIME OF ESSENCE Time shall be of the essence of this License Agreement and each and all of its terms, covenants or conditions in which performance is a factor. SECTION 8. TERMINATION This License Agreement may by terminated by either party with or.without cause upon thirty (30) days written notice delivered to the other party to this License Agreement in the manner set forth in the Notice Section of this License Agreement. SECTION 9. MAINTENANCE LICENSEE agrees to care for and maintain the Telescopes,at LICENSEE's sole cost.and expense, during the entire term of this License Agreement or any extension thereof, in good and satisfactory condition as acceptable to the CITY. Care for and maintenance includes but is not limited to removal of graffiti. In the event LICENSEE does not maintain the Property or 17540 5 Item 14. - 14 HB -122- Telescopes 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. SECTION 10. CONTROL OF EQUIPMENT LICENSEE shall keep any equipment used or brought onto the Property for the purposes of operating or maintaining the Facility under its absolute and complete control at all.times and said equipment shall be used on the Property at the sole risk of LICENSEE. SECTION 11. REMOVAL OF THE TELESCOPES UPON TERMINATION Upon termination of this License Agreement, LICENSEE will remove the Telescopes placed on the property and restore the Property to its natural condition to the satisfaction of, and at no cost to, the CITY. SECTION 12. ADDITIONS ALTERATIONS AND REMOVAL A. No modifications, alterations or additions to the Property or Telescopes,. including, without limitation, landscape design, construction of additional structures or changes to the structural design of the Property or Telescopes, shall be constructed or made by LICENSEE without first obtaining the prior written approval of CITY, which may be withheld by CITY in its sole and complete discretion. B. Except as provided under this License Agreement, no alteration or removal of the Telescopes or Property or natural features of the Property shall be undertaken without LICENSEE first obtaining the prior written approval of CITY. C. LICENSEE's obligation to obtain CITY's prior written approval.is separate and independent of LICENSEE's obligation to obtain any permits from CITY, including without limitation,building permits. 17540 .6 HB -123- Item 14. - 15 SECTION 13. CITY'S CONTRACT ADMINISTRATOR CITY's Director of Community Services, or his designee, shall be CITY's Contract Administrator for this License Agreement with the authority to act on behalf of CITY for the purposes of this License Agreement, and all CITY approvals and notices required to be given herein to CITY shall be so directed and addressed. SECTION 14. INDEMNIFICATION. DEFENSE AND HOLD HARMLESS LICENSEE hereby agrees to protect, defend, indemnify and hold harmless CITY, 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(including arbitration) of every nature or liability of any kind or nature) arising directly or indirectly out of the grant of the License under this License Agreement including that 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 CITY shall approve selection of LICENSEE's counsel. The CITY shall be reimbursed by LICENSEE for all costs and attorney's fees incurred by CITY in enforcing the obligations set forth in this Section. 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. SECTION 15. 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 operating the Facility on the Property pursuant to this license. 17540 7 Item 14. - 16 HB -124- 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. SECTION 16. GENERAL LIABILITY INSURANCE In addition to LICENSEE's covenant to defend,hold harmless and indemnify CITY, LICENSEE shall carry at all times, on all activities to be performed on the Property and/or the Facility 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 License 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. Under no circumstances shall said above- mentioned insurance contain self-insured retention, or a"deductibld'or any other similar form of limitation on the required coverage. 17540 $ HB -125- Item 14. - 17 SECTION 17. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENT LICENSEE shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this License Agreement; said certificates shall provide the name and'policy number of each carver and.policy; and shall state 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 License Agreement is terminated. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of CITY by LICENSEE under this License 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 upon execution of this License Agreement by LICENSEE. SECTION 18. INSURANCE HAZARDS LICENSEE shall not commit or permit the commission of any acts on the Property or Telescopes nor use or permit the use of the Property or Telescopes in any manner that will increase the existing rates for, or cause the cancellation of any liability, property, or other insurance policy for the Property required by this License Agreement. LICENSEE shall, at its sole cost and expense, comply with all requirements of any insurance carrier providing any insurance policy for the Property and/or Telescopes or required by this License Agreement necessary for the continued maintenance of these policies at reasonable rates. 17540 9 Item 14. - 18 HB -126- SECTION 19. 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 Property or the operation of the Telescopes. 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 Property and Telescopes under this License Agreement. 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. SECTION 20. WASTE LICENSEE shall not alter, damage or commit any kind of waste upon the Property of Facility or any improvement, equipment or personal property thereon and shall.not interfere in any manner with the operations or activities of CITY. LICENSEE shall not cause any workmen's or materialmen's liens to be placed upon the Property or Facility and agrees to indemnify and hold CITY harmless against any such liens including but not limited to the payment of attorneys' fees. SECTION 21. DAMAGE, DESTRUCTION OR NUISANCE LICENSEE shall not commit or permit the commission by others of any damage or destruction of, on, or to the Property or Telescopes. 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 Property; and LICENSEE shall not use or permit the use of the Property or Telescopes for any unlawful purpose. 17540 10 xB -127- Item 14. - 19 SECTION 22. 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 use of the Property and operation of the Telescopes. Upon request, LICENSEE shall promptly furnish to CITY satisfactory evidence establishing such payment. SECTION 23. SIGNS AND ADVERTISING CITY shall have the right to approve in its sole discretion and at any .time require LICENSEE to change or remove signs, names, placards, decorations or advertising placed on, or inscribed, painted or affixed upon the Telescopes. Should CITY approve of any sign, name, placard, decoration or advertising, LICENSEE shall maintain the same at all times during the entire term of this License Agreement or any renewals or extensions thereof. All signs, names, placards, decorations or advertising must comply with all requirements of any governmental authority with jurisdiction. SECTION 24. ASSIGNMENT The parties acknowledge that CITY is entering into this License Agreement in reliance upon the experience and abilities of LICENSEE and its principals. Consequently, LICENSEE shall not voluntarily assign, encumber or otherwise transfer its interest in the License Agreement or allow any other person or entity (except LICENSEE's authorized representatives) to occupy or use all or any part of the Property or Telescopes without the prior written consent of CITY, which consent may be withheld at CITY's sole discretion. Provided, however, that CITY's` consent shall not relieve LICENSEE from any and all of its. obligations, liabilities, duties or responsibilities under this License Agreement. Any assignment, encumbrance, occupation or use of the Property or Telescopes without such consent shall be voidable and, at CITY's sole discretion, shall constitute a Default of this License Agreement. 17540 11 Item 14. - 20 xB -128- SECTION 25. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this License Agreement shall inure to the benefit of, and be binding upon, the parties and their successors, including, without limitation, their assignees, users, 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, or uses, or.other transfers hereinbefore set forth, or(2) CITY's consent thereto. SECTION 26. WAIVER OF CLAIMS LICENSEE hereby waives any claim against CITY, 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 License Agreement, or any part thereof, or caused by any judgment or award in any suit or.proceeding_declaring this License Agreement null, void or voidable, or delaying the License Agreement or any part thereof from being carried out. SECTION 27. DESTRUCTION Should the Property or Telescopes be partially destroyed, this License Agreement shall continue in full force and effect, and LICENSEE, at LICENSEE's sole cost and expense, shall complete the work of repairing and restoring the Property and Telescopes to their prior condition .providing such work can be accomplished under all applicable governmental laws and regulations within one hundred eighty (180) days. Should the Property or Telescopes be so far destroyed that in CITY's reasonable judgment they cannot be repaired or restored to their former condition within one hundred eighty (180) days, CITY shall give LICENSEE notice of such determination in writing and each party may, in that partys sole discretion: 17540 12 xB -129- Item 14. - 21 (a) Continue this License Agreement in full force and effect in which case LICENSEE shall repair and restore, at LICENSEE's sole cost and expense, the Property and Facility to their former condition; or (b) Terminate this License Agreement by giving the other party thirty (30) days written notice of its election to terminate the License Agreement. In the event that either party elects to terminate this License Agreement, the entire amount of any insurance proceeds, if any, shall be paid to CITY. The proceeds of any such insurance payable to CITY may be used, in the sole discretion of CITY, for rebuilding or repair as necessary to restore the Property or for any other such purpose(s) as CITY sees fit. In addition, if LICENSEE elects to terminate the License Agreement, LICENSEE must still comply with all of.its obligations, liabilities, duties and responsibilities under the License Agreement, including, without limitation, paying any License Fee up to the time of termination. SECTION 28. CITY'S OPTION TO CLOSE THE PROPERTY CITY may close the Property without liability and without advance notice to LICENSEE therefor at any time as CITY 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 CITY in its sole discretion. The length of time of any closing of the Property by CITY longer than two (2) weeks during a period when the Facility would otherwise be operating shall extend the term of the License Agreement by the same amount of time. If this occurs, LICENSEE and. CITY shall memorialize this extension in writing. - 17540 13 Item 14. - 22 HB -130- SECTION 29. CONFLICT OF INTEREST LICENSEE warrants and covenants that no official or employee of CITY, nor any business entity in which an official or employee of CITY is interested, (1) has been employed or retained by LICENSEE to solicit or aid in the procuring of this License Agreement; or (2) shall be employed by LICENSEE in the performance of this License Agreement without the immediate written divulgence of such fact to CITY. In the event CITY 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 CITY, LICENSEE, upon request of CITY, shall terminate such employment immediately. For breaches or violation of this Section, CITY shall have the right both to terminate this License 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 CITY shall have any financial interest in this License Agreement in violation of the applicable provisions of the California Government Code. SECTION 30. NO TITLE INTEREST No title interest of any kind is hereby given and LICENSEE shall never assert any claim or title to the Property. ' SECTION 31 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 case to the addresses specified below; provided that CITY and LICENSEE, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent: 17540 1.4 IIB -131- Item 14. - 23 CITY: LICENSEE: City of Huntington Beach Russ Hill, Owner ATTN: Community Services Director See Scopes 2000 Main Street P.O. Box 4192 Huntington Beach, CA 92648 Seal Beach, CA 90740 SECTION 32. 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 of the Property and/or operation of the Telescopes whether such statutes, ordinances, regulations and requirements be now in force or hereinafter enacted. This License Agreement is expressly subject to the laws, regulations and policies of CITY. LICENSEE shall deliver to CITY a copy of any notice from any governmental entity received by LICENSEE regarding any alleged violation of law regarding the License Agreement, the Property or the Telescopes or from any person allegedly entitled to give notice under any conditions,, covenants, or restrictions binding or affecting the Property or Facility. 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 CITY and LICENSEE and shall be grounds for termination of this License Agreement by CITY. SECTION 33. INTERPRETATION OF THIS License Ajzreement The language of all parts of this License 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 License 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 License Agreement. No covenant or provision shall 17540 15 Item 14. - 24 HB -132- be deemed dependent upon any other unless so expressly provided here. As used in this License 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 License Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law: SECTION 34. SURVIVAL Terms and conditions of this License Agreement, which by their sense and context survive the expiration or termination of this License Agreement, shall so survive. SECTION 35. MODIFICATION No waiver or modification of any language in this License Agreement shall be valid unless in writing and duly executed by both parties. SECTION 36. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this License Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included ..or excluded 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 License Agreement. SECTION 37. ATTORNEYS FEES Except as expressly set herein, in the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this License Agreement or to secure the 17540 16 HB -133- Item 14. - 25 performance hereof, each party shall bear its own attorneys fees, such that the prevailing party shall not be entitled to recover its attorneys fees from the non-prevailing party. SECTION 38. GOVERNING LAW This License Agreement shall be governed and construed in accordance with the laws of the State of California. SECTION 39. DUPLICATE ORIGINAL The original of this License 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. SECTION 40. ENTIRETY The parties acknowledge and agree that they are entering into this License 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 License Agreement. The parties also acknowledge and agree that no representations, inducements, promises, License 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 License Agreement, and that that party has not executed this License Agreement in reliance on any representation, inducement, promise, License Agreement, warranty, fact or circumstance not expressly set-forth in this License.Agreement. This License Agreement, and the attached exhibits, contain the entire License Agreement between the parties respecting the subject matter of this License Agreement, the Property, Telescopes, or the License created under this License Agreement and supersede all prior understandings and License Agreements, whether oral or in writing between the parties respecting the subject matter hereof. 17540 17 Item 14. - 26 HB -134- IN WITNESS WHEREOF,the parties hereto have caused this License Agreement to be executed by and through their authorized officers on 0 7 , 200_6_. SEE SCOPES CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California By: print name ITS: (circle one)Chairman/ r,esiden ice President Mayor AND By City Clerk ® D� print name INITIATED AND APPROVED: ITS: (circle one)Secretary/Chief Financial Officer Asst. Secretary-Treasurer / Direc r f Community Se s REVIEWS A 7VED: 56pAED AS TO FORM: City Admini orty Atto y 1 ' A -2,1-08 C44Y Le-e' "SW6 A -2- & 71 "'z- �'� 0$13 t/o v 17540 18 HB -135- Item 14. - 27 EXHIBIT A Item 14. - 28 iix -136- B. Background and Project Summary See Scopes Background See Scopes was established in 1985 and operates out of Huntington Beach, California. Its only business is the concessioning of coin-operated viewing instruments. We have viewing instruments on four Islands in Hawaii, several piers, and numerous locations in Northern and Southern California. Our instruments are on more Southern California piers than any other vendor. We provide instruments manufactured by See Coast Mlanufacturing Company in Fairhope,Alabama. Their web site is www.seecoast.com Instruments We offer both telescopes and binoculars_ We believe we are the only vendor that does. We find that a binocular and a telescope placed side by side will produce more revenue that two telescopes or two binoculars, side by side. We propose placing one of each on each side of the pier and one of each on the two wheel-chair accessible bases Our binoculars are ten-power(10X) and are automatic focusing. No adjusting of focus is required. Binoculars offer a under field of view. Our telescopes are twenty-power (20X) and offer a narrower field of view. All instruments are equipped with new, high quality, staL-of-the-art, precision optics, which assure sharp, dear viewing. All instruments have an unalterable meter for cash control. Our method of operation is to buy, insure, and maintain the instruments. We will collect the coins and send the City a detail statement by instrument of the meter readings(See appendix b)and a check for 50%of the amount collected. There is NO COST to the City of Huntington Beach. We catty two million dollars of liability insurance, The City of Huntington Beach can be named on a special attachment Colors and Paint Although three standard colors are available, I recommend Nitro Blue. It'is a very aesthetically pleasing color, and in my studies, appear; to attract the most traffic. If another color is considered more appropriate by your people,any color on the web site is acceptable to us. Our paint is rugged, durable, glossy long tasting powder coat It is specialty formulated for our instruments. Additionally, a final anti-graffiti power coat to maintain a shine and protect from salt air is applied. Bases - Including Wheel Chair Accessible Our bases are coated with the same coating as our instruments. They have a thirty inch(30")cirr,.ular platform, eleven inches (11°) above ground level for shorter people. Both types of viewing instruments offer full 360 degrees of rotation. Our wheel chair accessible bases are ADA complian for wheel chair usage and come complete with the Wheel Chair logo. They are also frequently used by children too short to use the regular instruments, even with the base platforms. (800)932-5888 P.O.BOX 4191 FAX(714)536-8324 (714)374-1366 SEAL BEACH,CA 90740 seescopes@aol.com Hs -137- Item 14. - 29 Co Methodology Section Installation and Availability We will perform all of the installation effort,with the appropriate City personners concurrence.We will drill seven holes in the concrete decking for each instrument(four for the ADA base). The holes will be 518 inch in diameter and 3.5 inches deep and will be epoxy sealed and will use stainless steel lag boas and lag shields. After approval, the entire installation process will take about two lours. The specific placement of each instrument will be essentially where the old telescopes are now. We plan to put one telescope and one binocular on each side of the pier. We will submit a written plan and diagram to the appropriate City officials for their written concurrence. No installation will be started without approval. Upon removal,the holes will be plugged with liquid concrete and will be unnoticeable. All instruments are custom manufactured and shipped from Alabama. This process takes about four weeks_ Customer Satisfaction Preventive maintenance will be performed in conjunction with coin collection. A tag will be affixed to each showing our 800 number and repairs will be performed wn'thin twenty-four hours after trouble is reported. With close monitoring and the inherent qua►dy of the instruments, the probability of any sort of outage is very remote. A member of our staff will visit the Pier at least once each and every week to assure proper operation, clean and polish the instruments and remove any graffiti which may have been put onto the instruments.. This will be in addition to monthly,or more frequent,coin collection. We maintain an inventory of all parts and in the event of our outage, our vender provides overnight delivery service. Also, in the presence of salt air,sand, dust and smog, the instruments Will be replaced with new or factory refurbished instruments at least every three years. Collection and Analysis All instruments being installed now charge fifty (50) cents. The instruments are equipped with unalterable internal meters. When the revenue is collected, a remittance statement with meter readings, and a check for 50% of the revenue will be sent monthly to the City of Huntington Beach. The meter readings are analyzed on an on-going basis and adjustment will be made if appropriate. "Adjustment" means adding or moving instruments, changing from binocular to , } telescope or telescope to binocular. Any such adjustment will be with prior City approval. w. �v r Item 14. - 30 xB -138- DATE(MMIDDIYYYI') CERTIFICATE OF LIABILITY INSU DICE 02/1I/2008 PRODUCER (562)439-9731 FAX (S62)439-44S3 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Hamman-Miller-Beauchamp-Deebl e, Inc. ONLY ARID CONFERS NO RIGHTS UPON THE CERTIFICATE 3633 East Broadway HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR Y ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P. 0. Box IS20 Long Beach, CA 90801-IS20 INSURERS AFFORDING COVERAGE NAIC 6 SURED 4,WRERA: Northfield Insurance Company . INSURER B. See Scopes INSURER C: 6046 Shadowbrook Circle INSURER D: Huntington Beach, CA 92648 INSURERE: 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. INSR ADIYL TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITSGENERAL LIABILITY CPS 51760 09/28/2007 09/28/2009 EACH OCCURRENCE $ 1,000,0 X COMMERCIAL GENERAL LIABILITY DAMAGtFS�E„ 80DCO $ 100,00 CLAIMS MADE ®OCCUR MED EXP(Arty one Person) $ 5,0001 A PERSONAL R ADV INJURY $ 1,0w,ow GENERAL AGGREGATE $ 2,OW,OW GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMPJOP AGG $ 1,000,000 X POLICY JE LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT ANY AUTO (Ea aodderr!) $ ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per Person) HIRED AUTOS BODILY INJURY $ NON-OWNED AUTOS (Per accident) PROPERTY DAMAGE $ (Per acaderd) GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR El CLAIMS MADE JEN E C Wiev, AGGREGATE $ $ DEDUCTIBLE $ RETENTION $ _ 3,316 $ , WORKERS COMPENSATION AND 1.WCMATU OTH IR EMPLOYEW LIABILITY ANY PROPRIETORIPARTN£ROMCkMVE E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? EL DISEASE-EA EMPLOY $ IF yes,describe under SPECIAL PROVISIONS below EL DISEASE-POLICY LIMIT $ OTHER DESCRIPTIQN OL oP�RATIONS J LQCATIONS I ICLES I 4US(DNS DEQ BY EN06RSEMENT I SP C OVISIONS ertifIC otolder �s name as a�'t�on insured per sc�ie u�e on file with the carrier. 10 days notice of cancellation for non-payment of premium. CERTIFICATE HOLDER CANCELLATION 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 LEFT, City of Huntington Beach BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 20W Main Street OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. Huntington Beach, CA 92648-2702 AUTHORIiEDREPRESENTATIVE Daniel Rodd /G061IENS 'ORD 25(2001108) OACORD CORPORATION 1988 HB -139- Item 14. - 31 POUCY NUMBER: CP5 517 6 0 COMMERCIAL GENERAL UABiL17Y CG 20 11 01 96 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - MANAGERS OR LESSORS OF PREMISES This andorsernent modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE 1. Designation of Premises(Part Leased to You): INSURED'S TELESCOPES LOCATED AT HUNTINGTON BEACH PIER 2. Flame of Person or Orantzatlon(Additional Insured): CITY OF HUNTINGTON BEACH, ITS ELECTS OR APPOINTED OFFICIALS, AGENTS, OFFICERS, EMPLOYEES AND voLUNTEER.S 200 MAIN STREET, HUNTINGTON BEACH, CA 92646 3. Additional Premium: INCLUDED Of no entry appears above,the Information required to compete this endorsement will be shown In the Declarations as appiicabie to this endorsement.) WHO IS AN INSURED (Section 11) Is amended to include as an insured the person or organization shown In the Schedule but only with respect to IW Alty arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the Schedule and subject to the following additional exclusions: This Insurance does not apply to: 1. Any°occurrence"which takes pace after you cease to be a tenant In that premises. oA ffA- 2. Structural alterations, new construction or demolition operations performed by or on behalf of the person or AW organization shown In the Schedule. 3 l s Jo y CO 20 11 01 to Copyright,Insurance Semices Office,Inc.,1994 Page 1 of 1 ❑ Item 14. - 32 Hs -140- From: To:Gisela Campagne Date:2/23/2008 Time:12:41:50 PM Page 2 of 2 02/21/2008 THU 17:36 FAX 714 885 5830 ACSC ISS 191002 INTERINSURANCE EXCHANGE of the AUTOMOBILE CLUS Mailing address P.O.SOX 25W1,SANTA ANA,CALIFORNIA22799-SM BINDER OF INSURANCE Name and Address of Lienholder or Additional Insured Policy#G 1;860306 City o£Huntington Beach y 2000 Main Street NOTICE TO LIENHOLDER Huntington Beach,CA 92648 IN THE EVENT OF CANCELLA1*10K OF THIS BINDER, THE EXCHANGE WILL GIVE THE LIEIJHOLDER 10 DAYS WRITTEN NOTICE OF CANCELLATION Loan Number The Lrterinsurauce Exchange of the Aotosaobile Club Here by acknowledges itself bound to the named insured for the coverages spec fled in the schedule subject to all the provision of the Exchanges applicable polity form. The issuanet of a policy to the named Insured or,If it policy is In force,the issuance of an endorsement covering the automobile,boat or trailer described herein sball void this binder.A pro rate premium chargt computed fop the term of coverage in accordance with the carrels rafts of the Eachaage in effeu at inception of the binder will he made maim such a policy or policy endorsement is issued. This cinder shall not be construed to aribrd cumulative immrance vvith any existing polity. Name ofinsared HILL, RUSSELL L JR DESCRIPTION 43F AUTOMOBILE BOAT ®R TRAILER Car# Year I Trade Name TypG of Body or Boat Identification Number 1 2007 ACURA PP 2HNYD28397H548306 4 20061 CAD PP 1G6KD57Y56U131556 AUTOMOBILE INSURANCE LIMffS OF LIABILITY "X"tr4catae coverage bol.nd and afforded 3odily Injury Liability 1,000 thousand dollars,each parson Car 02 Car#3 1 000 thousand dollars,each occurrence Property Damage Liability 1,000 thousand dollars, each occurrence Medical Paymorris $ each person ❑ ❑ Underinsured MotorlstlUninsured Motorist Not Less Than$1.5,000 each peison!$30,000 each accident Comprehensive(mel.Fire and Theft) (a)Actual cash value less 5 500 deduetibis (b)Lltrtlt of Llability of$ less$ deductible ❑ ❑ Coliislon (a)Actual Cash Value lase$ 500 deductible ® 0 D Uninsumed Deductible Waiver (b)Unit of Liability of$ less$ deductible C ❑ Uninsured Collbion [ ❑ WATERCRAFT INSURANCE (BOAT) LIMITS OF LIABILITY "X"Indicates coverage bound and afforded Bodily Injury and Property Damage Liability Thousand Dollars,Each Occurrence Actual Cash Value not to exceed Limit of Uablilty of I"�I Physical Damage LJ $ lens$ _ deductible Effective date of Hinder 02/21/2008 12.01 AM This binder shall expire 30 days from the effective date or may be cancelled by the named insured at any time during such 30 day period. The Exchange may cancel this binder by mailing to the named insured al the address above written notice stating wh tt,not less then 10 days thereafter,such cancellation shall be effeettve.The mailing of such aoDce shall be sufficient proof of notice. District office 4kMINISTRATIVE OFFICES, ACSC Management Services,Inc. By CARRIE KLAR ATTORNEY-IN-FACT (Authorized Representative) 3Q314 E 4-98 HB -141- Item 14. - 33 r Su �� rty CITY OF ]HHCTNTINGTON BEACH 2000 Main Street, Huntington Beach, CA 92648 Huntin o"ni; Beach o Declaration of Non-Employer Status In order to comply with the City Council Resolution No. 6277, you are required to provide proof of Workers' Compensation Insurance. If you have no employees, this form must be signed and returned to: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 1 certify that in the performance of the activity or work for which this permit is issued, 1 shall not employ any person in any manner so as to become subject to California Workers' Compensation Insurance requirements. I authorize the City of Huntington Beach to immediately and retroactively revoke the license or permit issued under this declaration if I hire any employee(s) or become subject to the provision of the laws requiring Workers' Compensation Insurance. Applicant/Company Name: y PAS Address: ���- ��o X_ D? 1 Applicant's Signature: Title: r- Location Signed: Date Signed: 0 Telephone Number: 7/� /3 6 Item 14. - 34 HB -142- KuA ROUTING SHEET INITIATING DEPARTMENT: COMMUNITY SERVICES SUBJECT: APPROVE AGREEMENT WITH SEE SCOPES FOR TELESCOPES ON PIER COUNCIL MEETING ®ATE: April 7, 2008 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 Attome Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached ❑ Approved as to fonn by Ci Attome ) Not Applicable Certificates of Insurance (Approved by the CityAttomey) Attached Not Applicable ❑ Fiscal Impact Statement (Unbudgeted, over $5,000) Attached ❑ Not Applicable Bonds (If applicable) Attached El Not Applicable Staff Report (If applicable) Attached El Not Ap licable Commission, Board or Committee Report (If applicable) Attached ❑ Not Applicable Findings/Conditions for Approval and/or Denial Attached ❑ Not Applicable EXPLANATION FOR fflS HG ATTACHMENTS REVIEWED RETURNED, FORWARDED Administrative Staff ( ) Deputy City Administrator (Initial) ( ( ) City Administrator (Initial) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: , 7' RCA Author: JBE/G. Campagne xB -143- Item 14. - 3 5 City of Huntington Beach 2000 Main Street • Huntington Beach, CA 92648 OFFICE OF THE CITY CLERK .- A A JOAN L. FLYNN CITY CLERK April 8, 2008 Russ Hill, Owner See Scopes P. O. Box 4192 Seal Beach, CA 90740 Dear Mr. Hill: Enclosed is a duly executed copy of the License Agreement between the City of Huntington Beach and See Scopes for telescope service to the public on the Huntington Beach Municipal Pier. Sincerely, IeN jrA) Jo n L. Flynn, CMC City Clerk Enclosure: Agreement Ufollowup:agrmthr Sister Cities: Anjo, Japan u Waitakere, New Zealand Item 14. - 3 6 HB -144- (Telephone:714-536-5227) City Of Huntington Beach 2000 Main Street ® Huntington Beach, CA 92648 (714) 536-5227 ® www.huntingtonbeachca.gov FF8 P a Office of the City Clerk -71 1908 t Joan L. Flynn, City Clerk July 18, 2012 Russ Hill, Owner See Scopes P. O. Box 4192 Seal Beach CA 90740 Dear Mr. Hill: Enclosed for your records is an original signed copy of the "Amendment No. 1 to License Agreement Between the City of Huntington Beach and See Scopes." Sincerely, Joa L. Flynn, CIVIC City Clerk JF:pe Enclosure G:followup:agrmtltr Sister Cities: Anjo,Japan ® Waitakere, New Zealand Council/Agency Meeting Held: Deferred/Continued to: 1 Appr e o ❑ Conditionally Approved ❑ Denied E�PCity erk's S' natur Council Meeting Date: 4/7/2008 Department ID Number: CS08-001 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMB SUBMITTED BY: PAUL EMERY, INTERIM CITY ADMINISTRATOR 1'w PREPARED BY: JIM B. ENGLE, DIRECTOR, COMMUNITY SERVIC SUBJECT: APPROVE AGREEMENT WITH SEE SCOPES FOR LESCOPE SERVICE TO THE PUBLIC ON THE MUNICIPAL PIER Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: There is a need to approve an agreement for provision and operation of coin-operated telescopes on the municipal pier. Funding Source: Not applicable Recommended Action: Motion to: Approve License Agreement between the City of Huntington Beach and See Scopes for coin- operated telescopes on beach and pier, and authorize the Mayor and City Clerk to execute same. Alternative Action(s): Do not approve agreement with See Scopes, and discontinue the operation of coin-operated telescopes on the beach and pier. Analysis: Since 1967, coin-operated telescopes have been available for public use on the municipal pier. Requests for Proposal were sent out to appropriate companies that provide this service. The proposal was also available on the city's website. As is city protocol, the solicitation process was coordinated through the Purchasing Division of the Finance Department. Upon review of the proposals, the successful bidder was See Scopes. See Scopes has been operating coin-operated viewing instruments since 1985 in Hawaii and numerous piers and other locations in northern and southern California. There were originally five (5) telescopes on the pier. This new contract calls for six (6) telescopes, with two (2) being accessible to the disabled. This is a three-year agreement. REQUEST FOR CITY COUNCIL ACTION MEETING ®ATE: 4/7/2008 DEPARTMENT I® NUMBER: CS08-001 Strategic Place Goal: Providing coin-operated telescopes on the municipal pier meets the city goal of "helping to provide quality public services with the highest professional standards to meet community expectations and needs, assuring that the city is sufficiently staffed and equipped overall. This public service will also create an environment that promotes tourism to increase revenues to support community services and transfer the city's economy into a destination economy." Environmental Status: Not applicable Attachment(s): 1. Agreement with See Scopes -2- 3/24/2008 2:25 PM ATTACHMENT # 1 LICENSE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH AND SEE SCOPES This License Agreement is made and entered into by and between the CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California ("CITY') and See Scopes, a California company("LICENSEE"). WHEREAS, CITY is the owner of certain real property located on the western part of Main Street, Huntington Beach, west of Pacific Coast Highway in the City of Huntington Beach, Orange County, California, and commonly known as the Huntington Beach Pier and Pier Plaza (hereafter referred to as"he Propert ft and LICENSEE desires to install, maintain and operate a number of Coin Operated Telescopes (hereinafter referred to as"Telescopeg) on the Property for a fee to users under the terms contained in this License Agreement; and CITY desires to grant LICENSEE a license (hereafter referred to as 'lhe Licensd) to install, maintain and operate the Telescopes on specific locations within the Property area as determined at the sole discretion of the Community Services Director in the manner set forth in this License Agreement; and CITY and LICENSEE wish to enter into this License Agreement defining their respective rights and responsibilities concerning said License. NOW, THEREFORE, in consideration of the promises and Agreements hereinafter made and exchanged, the CITY and LICENSEE covenant and agree as follows: SECTION 1. SCOPE OF LICENSE; STATEMENT OF WORK; ACCEPTANCE OF RISK LICENSEE may enter upon the Property for the purpose of installing, operating and maintaining the Telescopes as set forth in Exhibit A attached hereto and incorporated herein by 17540 1 reference. Installation shall take place on Q Z. (Installation date). Prior to . Installation Date, CITY and LICENSEE shall meet to determine a work schedule and specific locations for the Telescopes. CITY may at its sole discretion set forth the date of installation as well as the number and location of Telescopes. However, the installation date shall be no later than and the number of Telescopes shall be no less than X LICENSEE shall furnish, at its own expense, all labor, plans, tools, equipment, supplies, . transportation, utilities and all other items, services, applicable permits, and Telescopes necessary to complete and construct/install the Telescopes in a good and workmanlike manner. Maintenance: In the event one of the Telescopes becomes inoperable, including coin intake, as determined by CITY or LICENSEE, the machine shall be immediately repaired or ` replaced. LICENSEE agrees to assume the risk of all loss or damage arising out of the nature of the scope of this License, during its progress or prior to acceptance, from the action of the elements, from any unforeseen difficulties which may arise or be encountered in the prosecution of work, and for all other risks of any description connection with the work, including, but not limited to, all expenses incurred by or in consequence of the suspension or discontinuance of work, except such as are herein expressly stipulated to be borne by CITY, and for well and faithfully completing the work within the stipulated time and in the manner shown and described in this Agreement, and in accordance with the requirements of CITY under them for the compensation set forth in the accepted proposal for coin operated viewing instruments from LICENSEE to CITY (Proposal). If a service was not included in the Proposal, LICENSEE may provide the service at CITY request on a time and materials basis. 17540 2 LICENSEE acknowledges that it is fully familiar with all the terms, conditions and obligations of this Agreement, the location of the job site, and the conditions under which the work is to be performed, and that it enters into this Agreement based upon its investigation of all such matters and is relying in no way upon any opinions or representations.of CITY. It is agreed that the terms of the Proposal, Specifications of the Coin Operated Telescopes as well as any construction documents if any are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein, and that CONTRACTOR and its subcontractors, if any, shall be bound by said documents insofar as they relate in part or in any way, directly or indirectly, to the work covered by this Agreement. Should there be any conflict between the terms of this License, the Proposal, or any construction documents, then this License shall control and nothing herein shall be considered as an acceptance of the terms of said proposal which is in conflict herewith. SECTION 2. TERM This License shall commence upon its approval by CITY and shall terminate n a e e- ear-S ,�unless extended, or sooner terminated, as provided for herein. SECTION 3. LICENSE FEE In consideration of this License, LICENSEE agrees to pay to CITY a fee(license Fed)of fifty percent (50%) of the gross monthly receipts of each Telescope for the use of the Property to operate the Telescopes. Gross monthly receipts shall include each time the Telescope is activated regardless of whether compensation was actually received by LICENSEE. LICENSEE shall pay the License Fee monthly on or before the 151h day of each month during the term of this License Agreement to the CITY at the City Treasurer's Office, P.O. Box 7.11, Huntington Beach, California, 92648, or at such other place or places as CITY may from time-to-time designate by 17540 3 written notice delivered to LICENSEE in the manner set forth in the Notice Section of this License Agreement. SECTION 4. LATE CHARGE AND PENALTY If the License Fee is not received by the City Treasurer by the fifteenth day of each month during the term of this License Agreement, or the next business day if the fifteenth day falls on a weekend or holiday, LICENSEE shall pay the following late charge and penalty: (1) a late charge of ten percent (10%) per week shall be applied to any outstanding balance after any payment hereunder is due but unpaid; and (2) one and a half percent (2%) penalty per month shall be added for each month the License Fee is due but unpaid. SECTION 5. BOOKS AND RECORDS LICENSEE shall keep true and accurate books and records showing all of its business transactions in separate records of account of the fee for Telescopes use in a manner acceptable to CITY, and CITY and/or its designated representatives shall have the right, at all reasonable times, to inspect such books and records including, without limitation, State of California sales or use tax returns or other State return records, and LICENSEE hereby agrees that all such records and instruments shall promptly be delivered and made available to CITY and/or its designated representatives within thirty (30) days of receiving written request therefor. LICENSEE shall furnish to CITY and/or its designated representatives copies of its quarterly California sales and use tax returns related to this License at the time each is filed with the State of California. The books and records shall show the total amount of Gross Sales made each calendar month in, on, or from the Property. LICENSEE agrees to maintain at its central offices all records, books of account and cash register tapes, showing, or in any way pertaining to the Gross Sales made in, on, or from the Property during such calendar month, including, without 17540 4 limitation, State of California sales or use tax returns or other State tax returns, for a period of five(5) years following the close of each calendar month. SECTION 6. RESERVATIONS ENCUMBRANCES AND RIGHTS-OF-WAY A. CITY expressly reserves the right to convey or encumber the Property, in whole or in part, for any purpose not inconsistent or incompatible with the rights or privileges of LICENSEE under this License Agreement. In addition, LICENSEE agrees to subordinate this LICENSE to any existing or future CITY financing regarding the Property or any portion thereof LICENSEE also agrees to cooperate and provide any documentation necessary for CITY to obtain any such financing. B. This License is subject to pre-existing contracts, licenses, easements, encumbrances and claims affecting the Property, if any, and it is made without warranty by CITY of title, condition or fitness of the land for the stated or intended use. SECTION 7. TIME OF ESSENCE Time shall be of the essence of this License Agreement and each and all of its terms, covenants or conditions in which performance is a factor. SECTION 8. TERMINATION This License Agreement may by terminated by either party with or without cause upon thirty (30) days written notice delivered to the other party to this License Agreement in the manner set forth in the Notice Section of this License Agreement. SECTION 9. MAINTENANCE LICENSEE agrees to care for and maintain the Telescopes, at LICENSEE's sole cost and expense, during the entire term of this License Agreement or any extension thereof, in good and satisfactory condition as acceptable to the CITY. Care for and maintenance includes but is not limited to removal of graffiti. In the event LICENSEE does not maintain the Property or 17540 5 Telescopes 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. SECTION 10. CONTROL OF EQUIPMENT LICENSEE shall keep any equipment used or brought onto the Property for the purposes of operating or maintaining the Facility under its absolute and complete control at all times and said equipment shall be used on the Property at the sole risk of LICENSEE. SECTION 11. REMOVAL OF THE TELESCOPES UPON TERMINATION Upon termination of this License Agreement, LICENSEE will remove the Telescopes placed on the property and restore the Property to its natural condition to the satisfaction of, and at no cost to, the CITY. SECTION 12. ADDITIONS, ALTERATIONS AND REMOVAL A. No modifications, alterations or additions to the Property or Telescopes,. including, without limitation, landscape design, construction of additional structures or changes to the structural design of the Property or Telescopes, shall be constructed or made by LICENSEE without first obtaining the prior written approval of CITY, which may be withheld by CITY in its sole and complete discretion. B. Except as provided under this License Agreement, no alteration or removal of the Telescopes or Property or natural features of the Property shall be undertaken without LICENSEE first obtaining the prior written approval of CITY. C. LICENSEE's obligation to obtain CITY's prior written approval.is separate and independent of LICENSEE's obligation to obtain any permits from CITY, including without limitation,building permits. 17540 .6 1 SECTION 13. CITY'S CONTRACT ADMINISTRATOR CITY's Director of Community Services, or his designee, shall be CITY's Contract Administrator for this License Agreement with the authority to act on behalf of CITY for the purposes of this License Agreement, and all CITY approvals and notices required to be given herein to CITY shall be so directed and addressed. SECTION 14. INDEMNIFICATION, DEFENSE AND HOLD HARMLESS LICENSEE hereby agrees to protect, defend, indemnify and hold harmless CITY, 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(including arbitration) of every nature or liability of any kind or nature) arising directly or indirectly out of the grant of the License under this License Agreement including that 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 CITY shall approve selection of LICENSEE's counsel. The CITY shall be reimbursed by LICENSEE for all costs and attorney's fees incurred by CITY in enforcing the obligations set forth in this Section. 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. SECTION 15. 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 operating the Facility on the Property pursuant to this license. 17540 7 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. SECTION 16. GENERAL LIABILITY INSURANCE In addition to LICENSEE's covenant to defend,hold harmless and indemnify CITY, LICENSEE shall carry at all times, on all activities to be performed on the Property and/or the Facility 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 License 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. Under no circumstances shall said above- mentioned insurance contain a self-insured retention, or a"deductibld'or any other similar forin of limitation on the required coverage. 17540 8 SECTION 17. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED . ENDORSEMENT LICENSEE shall furnish to CITY certificates of insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages as required by this License Agreement; said certificates shall provide the name and policy number of each carrier and policy; and shall state 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 License Agreement is terminated. The requirement for carrying the foregoing insurance shall not derogate from the provisions for indemnification of CITY by LICENSEE under this License 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 upon execution of this License Agreement by LICENSEE. SECTION 18. INSURANCE HAZARDS LICENSEE shall not commit or permit the commission of any acts on the Property or Telescopes nor use or permit the use of the Property or Telescopes in any manner that will increase the existing rates for, or cause the cancellation of any liability, property, or other insurance policy for the Property required by this License Agreement. LICENSEE shall, at its sole cost and expense, comply with all requirements of any insurance carrier providing any insurance policy for the Property and/or Telescopes or required by this License Agreement necessary for the continued maintenance of these policies at reasonable rates. 17540 9 SECTION 19. 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 Property or the operation of the Telescopes. 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 Property and Telescopes under this License Agreement. 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. SECTION 20. WASTE LICENSEE shall not alter, damage or commit any kind of waste upon the Property of Facility or any improvement, equipment or personal property thereon and shall not interfere in any manner with the operations or activities of CITY. LICENSEE shall not cause any workmen's or materialmen's liens to be placed upon the Property or Facility and agrees to indemnify and hold CITY harmless against any such liens including but not limited to the payment of attorneys' fees. SECTION 21. DAMAGE, DESTRUCTION OR NUISANCE LICENSEE shall not commit or permit the commission by others of any damage or destruction of, on, or to the Property or Telescopes. 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 Property; and LICENSEE shall not use or permit the use of the Property or Telescopes for any unlawful purpose. 17540 10 SECTION 22. 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 use of the Property and operation of the Telescopes. Upon request, LICENSEE shall promptly furnish.to CITY satisfactory evidence establishing such payment. SECTION 23. SIGNS AND ADVERTISING CITY shall have the right to approve in its sole discretion and at any .time require LICENSEE to change or remove signs, names, placards, decorations or advertising placed on, or inscribed, painted or affixed upon the Telescopes. Should CITY approve of any sign, name, placard, decoration or advertising, LICENSEE shall maintain the same at all times during the entire term of this License Agreement or any renewals or extensions thereof. All signs, names, placards, decorations or advertising must comply with all requirements of any governmental authority with jurisdiction. SECTION 24. ASSIGNMENT The parties acknowledge that CITY is entering into this License Agreement in reliance upon the experience and abilities of LICENSEE and its principals. Consequently, LICENSEE shall not voluntarily assign, encumber or otherwise transfer its interest in the License Agreement or allow any other person or entity (except LICENSEE's authorized representatives) to occupy or use all or any part of the Property or Telescopes without the prior written consent of CITY, which consent may be withheld at CITY's sole discretion. Provided, however, that CITY's` consent shall not relieve LICENSEE from any and all of its obligations, liabilities, duties or responsibilities under this License Agreement. Any assignment, encumbrance, occupation or use of the Property or Telescopes without such consent shall be voidable and,- at CITY's sole discretion, shall constitute a Default of this License Agreement. 17540 11 SECTION 25. TERMS BINDING ON SUCCESSORS All the terms, covenants and conditions of this License Agreement shall inure to the benefit of, and be binding upon, the parties and their successors, including, without limitation, their assignees, users, 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, or uses, or other transfers hereinbefore set forth, or(2) CITY's consent thereto. SECTION 26. WAIVER OF CLAIMS LICENSEE hereby waives any claim against CITY, 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 License Agreement, or any part thereof, or caused by any judgment or award in any suit or.proceeding declaring this License Agreement null, void or voidable, or delaying the License Agreement or any part thereof from being carried out. SECTION 27. DESTRUCTION Should the Property or Telescopes be partially destroyed, this License Agreement shall continue in full force and effect, and LICENSEE, at LICENSEE's sole cost and expense, shall complete the work of repairing and restoring the Property and Telescopes to their prior condition .providing such work can be accomplished under all applicable governmental laws and regulations within one hundred eighty (180) days. Should the Property or Telescopes be so far destroyed that in CITY's reasonable judgment they cannot be repaired or restored to their former condition within one hundred eighty (180) days, CITY shall give LICENSEE notice of such determination in writing and each party may, in that partys sole discretion: 17540 12 (a) Continue this License Agreement in full force and effect in which case LICENSEE shall repair and restore, at LICENSEE's sole cost and expense, the Property and Facility to their former condition; or (b) Terminate this License Agreement by giving the other party thirty (30) days written notice of its election to terminate the License Agreement. In the event that either party elects to terminate this License Agreement; the entire amount of any insurance proceeds, if any, shall be paid to CITY. The proceeds of any such insurance payable to CITY may be used, in the sole discretion of CITY, for rebuilding or repair as necessary to restore the Property or for any other such purpose(s) as CITY sees fit. In addition, if LICENSEE elects to terminate the License Agreement, LICENSEE must still comply with all of its obligations, liabilities, duties and responsibilities under the License Agreement, including, without limitation,paying any License Fee up to the time of termination. SECTION 28. CITYS OPTION TO CLOSE THE PROPERTY CITY may close the Property without liability and without advance notice to LICENSEE therefor at any time as CITY 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 CITY in its sole discretion. The length of time of any closing of the Property by CITY longer than two (2) weeks during a period when the Facility would otherwise be operating shall extend the term of the License Agreement by the same amount of time. If this occurs, LICENSEE and. CITY shall memorialize this extension in writing. 17540 13 SECTION 29. CONFLICT OF INTEREST LICENSEE warrants and covenants that no official or employee of CITY, nor any business entity in which an official or employee of CITY is interested, (1) has been employed or retained by LICENSEE to solicit or aid in the procuring of this License Agreement; or (2) shall be employed by LICENSEE in the performance of this License Agreement without the immediate written divulgence of such fact to CITY. In the event CITY 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 CITY, LICENSEE, upon request of CITY, shall terminate such employment immediately. For breaches or violation of this Section, CITY shall have the right both to terminate this License 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 CITY shall have any financial interest in this License Agreement in violation of the applicable provisions of the California Government Code. SECTION 30. NO TITLE INTEREST No title interest of any kind is hereby given and LICENSEE shall never assert any claim or title to the Property. ' SECTION 31 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 case to the addresses specified below; provided that CITY and LICENSEE, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent: 17540 14 CITY: LICENSEE: City of Huntington Beach Russ Hill, Owner ATTN: Community Services Director See Scopes 2000 Main Street P.O. Box 4192 Huntington Beach, CA 92648 Seal Beach, CA 90740 SECTION 32. 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 of the Property and/or operation of the Telescopes whether such statutes, ordinances, regulations and requirements be now in force or hereinafter enacted. This License Agreement is expressly subject to the laws, regulations and policies of CITY. LICENSEE shall deliver to CITY a copy of any notice from any governmental entity received by LICENSEE regarding any alleged violation of law regarding the License Agreement, the Property or the Telescopes or from any person allegedly entitled to give notice under any conditions,, covenants, or restrictions binding or affecting the Property or Facility. 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 CITY and LICENSEE and shall be grounds for termination of this License Agreement by CITY. SECTION 33. INTERPRETATION OF THIS License Agreement The language of all parts of this License 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 License 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 License Agreement. No covenant or provision shall 17540 15 be deemed dependent upon any other unless so expressly provided here. As used in this License 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 License Agreement which is hereby affected shall be curtailed and limited only to the extent necessary to bring it within the requirements of the law. SECTION 34. SURVIVAL Terms and conditions of this License Agreement, which by their sense and context survive the expiration or termination of this License Agreement, shall so survive. SECTION 35. MODIFICATION No waiver or modification of any language in this License Agreement shall be valid unless in writing and duly executed by both parties. SECTION 36. SECTION HEADINGS The titles, captions, section, paragraph and subject headings, and descriptive phrases at the beginning of the various sections in this License Agreement are merely descriptive and are included solely for convenience of reference only and are not representative of matters included or excluded 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 License Agreement. SECTION 37. ATTORNEYS FEES Except as expressly set herein, in the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this License Agreement or to secure the 17540 16 performance hereof, each party shall bear its own attorneys fees, such that the prevailing party shall not be entitled to recover its attorneys fees from the non-prevailing party. SECTION 38. GOVERNING LAW This License Agreement shall be governed and construed in accordance with the laws of the State of California. SECTION 39. DUPLICATE ORIGINAL The original of this License 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. SECTION 40. ENTIRETY The parties acknowledge and agree that they are entering into this License 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 License Agreement. The parties also acknowledge and agree that no representations, inducements, promises, License Agreements or warranties, oral or otherwise, have been made by that party, or anyone acting on that partys behalf, which are not embodied in this License Agreement, and that that party has not executed this License Agreement in reliance on any representation, inducement, promise, License Agreement, warranty, fact or circumstance not expressly set-forth in this License. Agreement. This License Agreement, and the attached exhibits, contain the entire License Agreement between the parties respecting the subject matter of this License Agreement, the Property, Telescopes, or the License created under this License Agreement and supersede all prior understandings and License Agreements, whether oral or in writing between the parties respecting the subject matter hereof. 17540 17 IN WITNESS WHEREOF,the parties hereto have caused this License Agreement to be executed by and through their authorized officers on � 200_&_. SEE SCOPES CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California By: print name ITS: (circle one)Chainn resident ice President Mayor AND �°`7�/�� By: City Clerk © D� print name INITIATED AND APPROVED: ITS: (circle one)Secretary/Chief Financial Officer Asst. Secretary-Treasurer / ' Direct r f Community Se s REVIEWE A AP ROVED: JAjEDASTOFORM: City Admini or NY ty Atto y 112®Z-e8 Gi y �' e►�s ` t A '�->' 17540 18 EXHIBIT A B. Background and Project Summary See Scopes Background See Scopes was established in 1985 and operates out of Huntington Beach, California. Its only business is the concessioning of coin-operated viewing instruments. We have viewing instruments on four islands in Hawaii, several piers, and numerous locations in Northern and Southern California. Our instruments are on more Southern California piers than any other vendor. We provide instruments manufactured by See Coast Manufacturing Company in Fairhope,Alabama. Their web site is www.seecoast.com Instruments We offer both telescopes and binoculars. We believe we are the only vendor that does. We find that a binocular and a telescope placed side by side will produce more revenue that two telescopes or two binoculars, side by side. We propose placing one of each on each side of the pier and one of each on the two wheel-chair accessible bases Our binoculars are ten-power(10X) and are automatic focusing. No adjusting of focus is required. Binoculars offer a wider field of view. Our telescopes are twenty-power (20X) and offer a narrower field of view. All instruments are equipped with new, high quality, state-of-the-art, precision optics, which assure sharp, clear viewing. All instruments have an unalterable meter for cash control. Our method of operation is to buy, insure, and maintain the instruments. We will collect the coins and send the City a detail statement by instrument of the meter readings(See appendix b)and a check for 50%of the amount collected. There is NO COST to the City of Huntington Beach. We carry two million dollars of liability insurance, The City of Huntington Beach can be named on a special attachment. Colors and Paint Although three standard colors are available, I recommend Nitro Blue. ltis a very aesthetically pleasing color, and in my studies, appears to attract the most traffic. If another color is considered more appropriate by your people,any color on the web site is acceptable to us. Our paint is rugged, durable, glossy tong lasting powder coat. It is specialty formulated for our instruments. Additionally, a final anti-graffiti power coat to maintain a shine and protect from salt air is applied. Bases - Including Wheel Chair Accessible Our bases are coated with the same coating as our instruments. They have a thirty inch(30")circular platform, eleven inches (11") above ground level for shorter people. Both types of viewing instruments offer full 360 degrees of rotation. Our wheel chair accessible bases are ADA complian for wheel chair usage and dame complete with the Wheel Chair Logo. They are also frequently used by children too short to use the regular instruments, even with the base platforms. (800)932-5888 P.O.BOX 4191 FAX(714)636-8324 (714)374-1366 SEAL BEACH,CA 90740 seescopes@aol.com © Methodology Sect' Installation and Availabiiity We will perform all of the installation effort,with the appropriate City personnel's concurrence.We will drill seven holes in the concrete decking for each instrument(four for the ADA base). The holes will be 5/8 inch in diameter and 3.5 inches deep and will be epoxy sealed and will use stainless steel lag bolts and lag shields. After approval, the entire installation process will take about two hours. The specific placement of each instrument will be essentially where the old telescopes are now. We plan to put one telescope and one binocular on each side of the pier. We will submit a written plan and diagram to the appropriate City officials for their written concurrence. No installation will be started without approval. Upon removal,the holes will be plugged with liquid concrete and will be unnoticeable. All instruments are custom manufactured and shipped from Alabama. This process takes about four weeks. Customer Satisfaction Preventive maintenance will be performed in conjunction with coin collection. A tag will be affixed to each showing our 800 number and repairs will be performed within twenty-four hours after trouble is reported. With close monitoring and the inherent quality of the instruments, the probability of any sort of outage is very remote. A member of our staff will visit the Pier at least once each and every week to assure proper operation, clean and polish the instruments and remove any graffiti which may have been put onto the instruments.. This will be in addition to monthly,or more frequent,coin collection. We maintain an inventory of all parts and in the event of our outage, our vender provides overnight delivery service. Also, in the presence of salt air, sand, dust and smog, the instruments will be replaced_ with new or factory refurbished instruments at least every three years. Collection and Analysis All instruments being installed now charge fifty (50) cents. The instruments are equipped with unalterable internal meters. When the revenue is collected, a remittance statement with meter readings, and a check for 50% of the revenue will be sent monthly to the City of Huntington Beach. The meter readings are analyzed on an on-going basis and adjustment will be made if appropriate. "Adjustment" means adding or moving instruments, changing from binocular to , telescope or telescope to binocular. Any such adjustment will be with prior City approval. v.. V7 r `" DATE(MM/DDNYYY) CERTIFICATE OF LIABILITY INSURANCE 1 02/11/2008 PRODUCER (562)439-9731 FAX (562)439-44S3 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Hamman-Miller-Beauchamp-Deeble, Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 3633 East Broadway HOLDER.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR Y ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. P. 0. Box 1520 Long Beach, CA 90801-1520 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURERA: Northfield Insurance Company INSURER B: See Scopes INSURER C: 6046 Shadowbrook Circle INSURER D: Huntington Beach, CA 92648 INSURERE: 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. INSR D TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATIONINSRE LIMITS GENERAL LIABILITY CPS 51760 09/28/2007 09/29/2009 EACH OCCURRENCE $ 1,000,000 N MMERCIAL GENERAL LIABILITY DAMAGE TO RENTED $ 1�r0 CLAIMS MADE �OCCUR MED EXP(Any one person) $ 5r00A PERSONAL&ADV INJURY $ 1,000,0 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS-COMP/OP AGG $ 1,000,000 X1 POLICY n jECOT- M LOC AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $ ANY AUTO (Ea accident) ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per person) HIRED AUTOS BODILY INJURY NON-OWNED AUTOS (Per accident) $ PROPERTY DAMAGE $ (Peraccide" GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $ ANY AUTO OTHER THAN EA AOC $ AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR El CLAIMS MADE I E'N )�Ec I, 1 tto ey AGGREGATE $ 1 $ DEDUCTIBLE 3 /�� $ RETENTION $ ` $ WORKERS COMPENSATION AND WC STATU- OTH EMPLOYERS'LIABILITY E.L.EACH ACCIDENT $ ANY PROPRIETOR/PARTNOttEXECUTIVE OFFICERIMEMBER EXCLUDED? EL.DISEASE-EA EMPLOYE S if yes,describe under SPECIAL PROVISIONS below E.L.DISEASE-POLICY LIMIT $ OTHER DESCRIPTIQN OF TIONS I LgCATIONS/ ICLES I I,USLONS DEQ BY ENDORSEMENT!SP C OVISIONS ert�ficat�e older is named as a itionall -insured per sc�ie ue on file with the carrier. 10 days notice of cancellation for non-payment of premium. CERTIFICATE HOLDER CANCELLATION 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 LEFT, City of Huntington Beach BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY 2000 Main Street OF ANY KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. Huntington Beach, CA 92648-2702 AUTHORIZED REPRESENTATIVE Daniel Rodd /GOWENS "- ACORD 25(2001108) (DACORD CORPORATION 1988 POLICY NUMBER: CP55176 0 COMMERCIAL GENERAL LIABILITY CG 20 11 01 96 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURE® - MANAGERS OR LESSORS OF PREMISES This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE 1. Designation of Premises(Part Leased to You): INSURED'S TELESCOPES LOCATED AT HUNTINGTON BEACH PIER 2. Name of Person or Organization(Additional Insured): CITY OF HUNTINGTON BEACH, ITS ELECTED OR APPOINTED OFFICIALS, AGENTS, OFFICERS, EMPLOYEES AND VOLUNTEERS 200 MAIN STREET, HUNTINGTON BEACH, CA 92646 3. Additional Premium: INCLUDED (if no entry appears above,the information required to complete this endorsement will be shown In the Declarations as applicable to this endorsement) WHO IS AN INSURED (Section ll) Is amended to include as an insured the person or organization shown In the Schedule but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises teased to you and shown in the Schedule and subject to the following additional exclusions: This Insurance does not apply to: 1. Any°occurrence"which takes place after you cease to be a tenant in that premises. oA �,sA 2. Structural alterations, new construction or demofftfon operations performed by or on behalf of the person or AA organization shown in the Schedule. 3 !$f o Y CG 20 1101l8 Copyright,Insurance Services Office,Inc.,1994 Page 1 of 1 0 From: To:Gisela Campagne Date:2/23/2008 Time:12:41:50 PM Page 2 of 2 02/21/2008 THU 17:36 FAX 71.4 885 5830 ACSC ISS @002 1NTERINSURANCE EXCHANGE of the AUTOMOBILE CLUB Mailing address P.O.SOX 25001,SANTA ANA,CALIFORNIA22799.5001 BINDER OF INSURANCE Name and Address of Llenho(der or Additional Insured Policy#G :;860306 City of Huntington Beach 2000 Main Street NOTICE TO LIENHOLDER Huntington Beach,CA 92648 IN THE EVENT OF CANCELLATIOM OF THIS BINDER, THE EXCHANGE WILL GIVE THE LIE11HOLDER 10 DAYS WRITTEN NOTICE OF CANCELLATION Loan Number The Ltterinsurance Exchange of the Automobile Club Hereby acknowledges iitself bound to the pained insured for the coverages spec fled in the schedule subject to all the provision of the Exchanges applicable policy form. The issuance of a policy to the named Insured or,it a policy is in force,the issuance Oran endorsement covering the automobile,boater trailer described herein shall void this binder.A pro rate premium charge computed for the term of coverage in accordance with the current rates or the Exchange in e&.ct at inception of the binder will he made antess such a policy or policy endorsement is issued. This blader shall not be construed to afford camaiative innurance with any existing policy. Name oflasured HILL, RUSSELL L JR DESCRIPTION OF AUTOMOBILES BOAT OR TRAILER Car# Year Trade Name Hof Body or Boat Identification Number 1 2007 ACURA PP 2H YD28397H548306 4 20061 CAD PP 1G6KD57Y66U131556 AUTOMOBILE INSURANCE LIMITS OF LIABILITY "X"Indicates coverage boLnd and afforded Bodily Injury Liability 1,000 thousand dollars,each person Car 42 Car#3 1,000 thousand dollars,each occurrence ®. Property Damage Liability 1,000 thousand dollars, each occurrence Medical Payments $ each person ❑ ❑ Underinsured MotorlstlUninsured Motorist Not less Than$1.5,000 each penson!$30r000 each accident Comprehensive(incl.Fire and Theft) (a)Acimid Cash Value ions 500 deductible (b)Limit of Liability of 4 less$ deductible ❑ ❑ Collision (a)Actual Cash Value less$ 500 deductible [] Uninsured Deductible Waiver (b)Limit of Liability of$ less$ deductible C ❑ Uninsured Coliisdon V ❑ WATERCRAFT INSURANCE (BOAT) LIMITS OF INABILITY "X"Indicates Coverage boti rod and afforded Bodily Injury and Property Damage Liability Thousand Dollars,Each Occurrence Actuat Cash Value not to exceed Limit of Liability of ("'"'I Physical Damage LJ $ less$ _ deductible Effective date of Binder 02/21/2008 12:01 AM This binder shall expire 30 days from the effective date or maybe cancelled by the named insured at anytime during such 30 day period. The Exchange may cancel this binder by mailing to the named insured at the address above written notice stating wh m.not less then 10 days thereafter,such cancellation shall be effective.The mailing of such notice shall be sufficient proof of notice. District office AMWSTRATIVE OFFICES, ACSC Management Services,Inc. By CARRIE KI.AR ATTORNEY-IN-FACT (Authorized Representative) 30Si4 E 4-98 r Su � ity CITY OF HUNTINGTON BEACH 2000 Main Street, Huntington Beach, CA 92648 Huntin ii Beach o Declaration of Non-Employer Status In order to comply with the City Council Resolution No. 6277, you are required to provide proof of Workers' Compensation Insurance. If you have no employees, this form must be signed and returned to: City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 1 certify that in the performance of the activity or work for which this permit is issued, I shall not employ any person in any manner so as to become subject to California Workers' Compensation Insurance requirements. I authorize the City of Huntington Beach to immediately and retroactively revoke the license or permit issued under this declaration if I hire any employee(s) or become subject to the provision of the laws requiring Workers' Compensation Insurance. Applicant/Company Name: �Gy PAS Address: PZ, /2 o X- 6ZI q fg Jai 'L 13 6-�4, D?�Z Applicant's Signature: Title: A-1 1 ► Location Signed: A�3. �2,'� Date Signed: z z� a Telephone Number: 71 �-7 3 6 Z— RCA ROUTING INITIATING DEPARTMENT: COMMUNITY SERVICES SUBJECT: APPROVE AGREEMENT WITH SEE SCOPES FOR TELESCOPES ON PIER COUNCIL MEETING DATE: April 7, 2008 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not A plicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not A plicable Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable Contract/Agreement (w/exhibits if applicable) Attached (Signed in full by the City Attome ) Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached ❑ (Approved as to form by City Attorney) 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 Not Applicable Staff Report (If applicable) Attached ❑ Not Applicable Commission, Board or Committee Report (If applicable) Attached ❑ Not Applicable Findings/Conditions for Approval and/or Denial Attached ❑ Not Applicable EXPLANA i N FOR NSWNG Alf T/AC HNE I TS REVIEWED RETURNED FORWA ED Administrative Staff ( ) Deputy City Administrator (Initial) ( ) ( ) City Administrator (Initial) City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: .S�IX16 EX I-At&+ 7 'A' RCA Author: JBE/G. Campagne City ®f Huntington Beach 2000 Main Street • Huntington Beach, CA 92648 0 OFFICE OF THE CITY CLERIC JOAN L. FLYNN CITY CLERK April 8, 2008 Russ Hill, Owner See Scopes P. O. Box 4192 Seal Beach, CA 90740 Dear Mr. Hill: Enclosed is a duly executed copy of the License Agreement between the City of Huntington Beach and See Scopes for telescope service to the public on the Huntington Beach Municipal Pier. Sincerely, Jo en L. Flynn, CMC City Clerk Enclosure: Agreement G:fo 11owup:agrmtltr Sister Cities: Anjo, Japan o Waitakere, New Zealand (Telephone:714-536-5227)