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HomeMy WebLinkAboutCAFECITO LLC; 2011-10-04;LICENSE AGREEMENT BETWEEN THE CITY OF CARLSBAD AND CAFECITO. LLC REGARDING USE AND UTILIZATION OF SPACE AT THE CARLSBAD CITY LIBRARY ON DOVE LANE FOR A COFFEE CART BUSINESS 1.0 PARTIES THIS LICENSE AGREEMENT ("License Agreement"), dated Otf tj~ d(pl\ ("Effective Date") is made and entered into and between the City of Carlsbad, a California Municipal Corporation, hereinafter referred to as the "CITY", and CAFECITO, LLC, hereinafter referred to as the "VENDOR". 2.0 RECITALS WHEREAS, the CITY is the owner of the Library facility at 1175 Dove Lane ("Dove Library") and holds fee title to portions of real property and a long-term lease on other portions of the property on which the Library is located; and WHEREAS, the CITY provides library services, special events and activities to over 750,000 patrons and 112,000 library card holders annually; and WHEREAS, a portion of the Library includes approximately 200 square feet of space (the "Premises") located adjacent to the front entrance to the Library, between the entry doors and the Gowland Meeting Room and the CITY exercises control over the same Premises designed to be utilized for purposes compatible with, and supportive of, the mission of a public library and public library services; and WHEREAS, subject to certain terms and conditions, the CITY desires to allow the exclusive use of the Premises by VENDOR for storing a coffee vending cart, and the area immediately outside the Premises for the sale of coffee and related beverages and coffee cart related pre-packaged snacks; NOW, THEREFORE, for good and valuable consideration, the CITY and VENDOR agree to enter into this Agreement for use of the Premises subject to the following terms and conditions: 3.0 TERMS 3.1 Authorization for Use. Subject to the terms and conditions set forth below, CITY authorizes VENDOR to use the Premises for storing a mobile coffee cart during hours of non- operation, and to use the water and electrical outlet inside the Premises during hours of operation. A floor plan of the Premises is shown in Exhibit "A" attached hereto and hereby incorporated by this reference. 3.2 Term. The term of this AGREEMENT shall be for one year beginning on the Effective Date of this AGREEMENT. The parties may renew this AGREEMENT by mutual consent and in writing for two (2) additional one (1) year term periods, by giving written notice Dove Library Coffee Cart License Agreement of such renewal to the other party requesting an additional term period at least ninety (90) calendar days prior to the end of the AGREEMENT'S ending date. 3.3 Use. The CITY shall allow the VENDOR use of the Premises for storing a mobile coffee cart during hours of non-operation. Hours of operation shall be no more than thirty (30) minutes outside the hours of operation of the Carlsbad Library, except for authorized special events. 4.0 LICENSE FEE Consideration. VENDOR shall pay CITY a minimum annual fee of $6,000 payable monthly at the rate of $500, or 10% of gross receipts, whichever sum is greater. Fee shall be payable by the 5th of each month. Payment can be made by cash, check or debit/credit card. If paying with cash or by debit/credit card, payment must be made in person at a Carlsbad City Library facility. Terms are net 30 days to remit payment. 5.0 OBLIGATIONS 5.1 Obligations of the CITY 5.1.1 The CITY shall maintain the Premises including foundation, roof, structural components and facility's systems including sewer, water, and electrical systems. 5.1.2 The CITY shall provide electric, water and sewer utility services, landscape maintenance, and general maintenance to the exterior of the Premises as part of the overall Library maintenance. The CITY shall not be liable for any loss or damage caused by, or resulting from, any variation, interruption, or failure of any utility services due to any cause. 5.1.3 Should the VENDOR choose to utilize the janitorial service provider contracted by the CITY, VENDOR shall reimburse the CITY the cost incurred by the CITY for janitorial services to the Premises. 5.1.4 The CITY shall provide access to the on-site trash bin and recycling bin. 5.1.5 The City shall provide as-needed access to a janitorial sink inside the Library for proper disposal of coffee cart wastewater. 5.2 Obligations of the VENDOR 5.2.1 VENDOR shall provide mobile coffee cart services to the general public consisting of coffee, related beverages and optionally, pre-prepared coffee cart type food at the main Carlsbad City Library at 1775 Dove Lane, Carlsbad, California. Vendor estimates having all equipment in place and beginning coffee cart services by November 1, 2011. The first month's license fee will be prorated on a 30-day calendar depending on the actual start date. 5.2.2 VENDOR shall provide a non-permeable mat to control spillage at the coffee cart. VENDOR shall provide a trash receptacle, to be emptied in the on-site CITY provided trash bin. VENDOR shall provide a recycling receptacle, to be emptied in the on-site CITY provided Dove Library Coffee Cart License Agreement recycling bin. VENDOR shall provide, at his/her expense, storage and security for any coffee cart and supplies kept within the Premises. 5.2.3 VENDOR shall maintain the Premises at its sole cost and expense in such a manner that the Premises remain in a usable and safe condition and substantially in the same condition, subject to normal wear and tear, as at the Effective Date of this AGREEMENT. 5.2.4 VENDOR agrees to maintain hours of operation that best serve the community and customers of the Library, as long as those hours are within the operating hours specified in the permitted use for this service. 5.2.5 VENDOR must obtain from the CITY, in advance and in writing, approval for any planned improvements, additions or alterations to the Premises. In connection with all such alterations, additions or improvements, VENDOR shall obtain the CITY'S written approval and provide a copy of proposed improvements, additions or alterations, and a copy of the work scope and proposal from any contractor, subcontractor or vendor, who VENDOR desires to contract with to perform work on the Premises. Improvements, additions or alterations desired by the VENDOR shall not be an expense to the CITY. VENDOR shall obtain any and all necessary permits and approvals for any desired improvements or alterations and shall deliver to the CITY a copy of the same prior to commencement of improvements to the Premises. 5.2.6 VENDOR shall keep true and accurate books and records showing all of its business transactions in separate records of account for its operations in a manner acceptable to CITY and CITY shall have the right through its representative and at all reasonable times, to inspect such books and records including State of California sales tax return records and VENDOR hereby agrees that all such records and instruments are available to CITY. VENDOR will submit to CITY, no later than forty-five (45) days after the close of business year, any of the following documents: • A copy of the appropriate IRS form indicating gross business receipts for the Library location • A copy of the four quarterly business sales tax submissions to the State Board of Equalization when all revenue is subject to sales or use tax • An audit by an independent Certified Public Accountant (CPA) if one is routinely performed • A simple letter from an outside paid tax preparer stating the actual gross receipts of the business for the Library location. The reporting of gross receipts shall be made to the CITY for the purposes of reconciling revenue sharing according to section 4.0 of this AGREEMENT. CITY further reserves the right to examine and audit all such books and records at any time during the one (1) year period following the termination of this AGREEMENT. VENDOR agrees that as part of its record- keeping activity it shall at its own cost and expense, install and maintain such cash register equipment as may be deemed necessary by CITY and in compliance with any applicable tax law requirements. The term "gross receipt", wherever used in this AGREEMENT is intended to and shall mean all monies, property or any other things of value received by VENDOR through the operation of said concession or from any other business carried on or upon said Premises or any portion thereof, or from any other use of said Premises or any portion thereof by VENDOR, Dove Library Coffee Cart License Agreement without deduction or deductions, it being understood, however, that the term "gross receipts" shall not include any sales or excise taxes imposed by any governmental entity and collected by VENDOR. 5.2.7 VENDOR shall provide CITY with a copy of the Articles of Incorporation if vendor is a corporation, or any other documentation deemed by CITY to be valid proof the signatory(s) of the AGREEMENT have the legal authority to contractually bind VENDOR. 5.2.8 VENDOR shall provide and maintain all valid use permits for a coffee cart business on the Premises. 6.0 COMPLIANCE 6.1 VENDOR shall comply with all federal, state, county and local laws, statutes, ordinances, rules and regulations and the orders and decrees of any courts or administrative bodies in any manner affecting performance of activities conducted on the Premises. VENDOR shall display in a prominent location on his/her mobile coffee cart all required permits and licenses. 7.0 REPRESENTATIVE The Owner of VENDOR shall represent VENDOR in all matters pertaining to this AGREEMENT. 8.0 ASSIGNMENT OF CONTRACT / NON-POSSESSORY INTEREST 8.1 Assignment of License. VENDOR is without right to and shall not assign this AGREEMENT or any part thereof without the prior written consent of the CITY. 8.2 Non-Possessory Interest. VENDOR shall have no permanent or possessory interest in the Premises based upon this AGREEMENT or any activities that VENDOR may conduct on the Premises. 9.0 ASSUMPTION OF RISKS VENDOR assumes all risk of loss or damage to VENDOR'S property within the Premises, except damage or loss through the sole negligent act or intentional misconduct of the CITY. The CITY shall not be liable to VENDOR, or those claiming through the CITY, for injury, death, or property damage occurring at the Premises and arising out of the conduct of VENDOR. 10.0 INDEMNITY VENDOR agrees to indemnify, defend and hold the CITY and CITY's elected officials, officers, employees and agents harmless from and against any and all liabilities, claims, demands, causes of action, losses, damages and costs, including all costs of defense thereof, arising out of, or in any manner connected directly or indirectly with any actions or omissions or operations of VENDOR or the VENDOR'S agents, employees, contractors, officials, officers, patrons, invitees or representatives of the Premises. With respect to the indemnity and hold harmless provisions of this section, VENDOR shall, upon demand and at its own expense, Dove Library Coffee Cart License Agreement defend the CITY and its officers, officials, employees and agents, with legal counsel acceptable to the CITY, from and against any and all liabilities, claims, demands, causes of action, losses, damages and costs. 11.0 INSURANCE 11.1 VENDOR shall obtain, and during the term of this AGREEMENT shall maintain policies of general liability and property damage insurance (for structure and contents) from an insurance company authorized to do business in the State of California, in an amount not less than one million dollars ($1,000,000), for each occurrence in a form satisfactory to the CITY's Risk Manager. The insurance policy shall provide that the policies shall not be cancelled, terminated, or allowed to expire without thirty (30) day prior written notice to the CITY from the insurance company. VENDOR shall provide certificate of insurance and additional insured endorsement for insurance required pursuant to this section to the satisfaction of the CITY no later than the Effective Date of this AGREEMENT. The CITY shall be named as additionally insured by endorsement on these policies and provided proof of insurance by way of a certificate of insurance with additional insurance endorsement. 11.2 VENDOR shall procure a policy of Worker's Compensation Insurance as required by Labor Code of the State of California, if VENDOR has employees. 12.0 TERMINATION 12.1 If VENDOR is in default in the performance of this AGREEMENT, or materially breaches any of its provisions, the CITY at its sole option may terminate this AGREEMENT by giving written notice to VENDOR. On receipt of said notice, VENDOR shall cease all sale operations immediately and shall have five (5) days to remove the mobile coffee cart and all supplies from the Premises. 12.2. If the CITY defaults in the performance of the AGREEMENT, or materially breaches any of its provisions, VENDOR, at its sole option, may terminate this AGREEMENT by giving written notice to the CITY. 12.3 Either party may terminate this AGREEMENT, for convenience, without cause, upon sixty (60) days prior written notice to the other party. 13.0 RETURN OF POSSESSION TO CITY 13.1 On expiration of the Term or sooner termination of this AGREEMENT, VENDOR will return possession of the Premises to CITY in good order and condition. Except as otherwise authorized by the CITY, VENDOR should remove all of VENDOR'S merchandise, supplies, furnishings and equipment, owned or leased by VENDOR. Any non-movable or affixed property left in the Premises after expiration or termination of this AGREEMENT shall be deemed abandoned by VENDOR and shall be deemed the property of the CITY and CITY may disposed of said property without incurring any liability to VENDOR. 13.2 Should VENDOR continue to occupy the Premises after the expiration of the term without executing an extension or renewal term with CITY, such holdover shall be from month- to-month. Dove Library Coffee Cart License Agreement 14.0 ENTIRE AGREEMENT; AMENDMENT This writing constitutes the entire agreement between the parties relating to the terms and conditions hereunder. No modification of this Agreement shall be effective unless and until such modification is evidenced by writing signed by all parties. 15.0 GOVERNING LAW; VENUE. The existence, validity, construction, operation and effect of this AGREEMENT shall be determined in accordance with laws of the State of California. Venue shall be established in the County of San Diego in the event of a dispute between the parties. 16.0 NOTICES Notices and requests to CITY or VENDOR shall be delivered at the following address served upon CITY or VENDOR or any person hereafter authorized to either in writing and may be delivered personally or by U.S. Postal Service or other delivery services receive such notices or mailing; CITY: CITY Contact: VENDOR VENDOR Contact: Library Director City of Carlsbad 1775 Dove Lane Carlsbad, CA 92011 Steve Didier Phone: (760) 602-2014 FAX: (760)602-7942 Email: steven.didier@carlsbadca.gov Belinda Martinez-Canez Owner Cafecito, LLC 1114 West Street Oceanside, CA 92054 Name: Belinda Martinez-Canez Phone: 760-473-1947 FAX: n/a Email: belindacanez@hotmail.com Website: www.cafecito.org Dove Library Coffee Cart License Agreement 17.0 AUTHORITY The individuals executing this Agreement and the instruments referenced in it on behalf of Contractor each represent and warrant that they have the legal power, right and actual authority to bind Contractor to the terms and conditions of this Agreement. CONTRACTOR *By: CITY OF CARLSBAD, a Municipal Corporation of the State of California City Manager or Department Head ATTEST: LORRAINE M. WOOD City Clerk X,*,, If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. Chairman, President, or Vice-President **Group B. Secretary, Assistant Secretary, CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. 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