sr-032481-6v~;.
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Sang Monica, California March 10, 1981
~9AR 2 4 19~~_
T0: Mayor and City Council
FROM: City Staff
SUBJECT: Alcoholic beverage service at the Civic Auditorium
Introduction
This report analyses the public sale of beer at the Civic
Auditorium during the trial period authorized by the City
Council on April 29, 1980, item number 6L, and makes a
recommendation regarding public sale of alcoholic beverages
at certain events at the Civic Auditorium.
Background
Council authorized the City to contract for public service
of beer at a series of boxing exhibitions held at the Civic
Auditorium over the past year. Through February 11, 1981,
£our boxing exhibitions were held and the additional revenue
to the City generated by the beer sale was considerable--$.23
per customer--and without incident with regard to crowd
control problems. The average per customer revenue from all
sources is $1.17. Additionally alcoholic beverages were
made available to all '°Golden Circle Club° members in the
East Wing as per the provisions of Resolution 3579 (CCS), and
additional revenue to the City generated by this service
averaged $.77 per customer. The Resolution allows alcoholic
beverage service to attendees of a closed event and does not
specifically prohibit public sale of alcoholic beverages at
Civic Auditorium events.
Recommendation
Staff recommends Council allow an expanded trial period
for full alcoholic beverage service to the public at those
events where such service would be deemed suitable by the
Director of the Civic Auditorium. Further that, in the
interest of continuity and economy, said service be con-
timed through Aquarius Concessions, Inc., the highest
percentage bidder for the initial period. The extended
trial period should cover the time necessary to complete
the lobby expansion but not to exceed one year from this
date.
Prepared by: Gary Ferguson
CONCESSION AGREEMENT
THIS AGREEP~IENT is made and entered into by and between the
City of Santa Monica, a municipal corporation (hereinafter referred
to as "CITY") and Aquarius Concession Company, Inc., a California
corporation whose address is 1900 Avenue of the Stars, Suite 970,
Los Angeles, California 90067, (hereinafter referred to ws "AQUARIUS").
WHEREAS, the CITY is a municipal corporation duly organized
and validly existing under the laws of the State of California with
the power to carry on its business as it is now being conducted
under the statutes of the State of California and the Charter of
the CITY;
WHEREAS, AQUARIUS is a corporation, duly organized, validly
existing and in good standing under the law of the State of California
with corporate power to own property and carry on its business as it
is now being conducted;
WHEREAS, on May 21, 1980, AQUARIUS submitted a proposal for
an Alcoholic Beverage Concession at the Santa Monica Civic Auditorium
(hereinafter referred to as "PROPOSAL"');
WHEREAS, AQUARIUS is willing and able to perform the pro-
fessional services herein;
WfiEREAS, CITY desires to engage AQUARIUS to render certain
professional services hereinafter described.,
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NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties, as follows:
1. PROPOSAL INCORPORATION.
The PROPOSAL as hereinabove alleged is incorporated herein
and the terms therein made a part of this agreement.
2. TERM.
The term of this agreement shall be deemed to have commenced
this 10th day of April, 1981, and shall terminate on the 9th day
of April, 1982, unless earlier terminated pursuant to Paragraphs 12
and 13 herein.
3. SERVICES TO BE PERFORMED BY AQUARIUS.
AQUARIUS will operate a concession in the Santa Monica Civic
Auditorium at each event which is deemed suitable by the Director
of the Civic Auditorium (hereinafter referred to as "EVENT(S)").
Said concession will serve alcoholic beverages to the public at said
designated EVENTS.
4. OBLIGATION OF
In consideration of the covenants set forth herein, CITY
shall:
A. Provide AQUARIUS with at least 10 days notice of time
and date of the EVENTS at which AQUARIUS is to perform the services
set forth in Paragraph 3. The notice required in this paragraph
shall be either oral or written and given to the designated repre-
sentative of AQUARIUS.
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B. Provide AQUARIUS with a location at each designated
EVENT which is suitable to perform the services set forth in
Paragraph 3. Said location will be subject to the approval of
AQUARIUS and Director of the Civic Auditorium of CITY.
C. The designation of EVENTS at which AQUARIUS is to
perform the services set forth in Paragraph 3 above and the manner
of notice required in this Paragraph is at the sole discretion of
the Director of the Civic Auditorium of the CITY.
5. COMPENSATION
In consideration of the covenants set forth herein, AQUARIUS
shall pay the greater of the following to CITY:
A. 33.60 of the net sales collected for the services set
forth in Paragraph 3 above for Pach EZTENTa
or
B. $300.00 per EVENT at which AQUARIUS is requested to
perform services set forth in Paragraph 3 herein.
6. METHOD OF PAYMENT.
On or before the tenth day cf the month after the services
set forth in Paragraph 3 occur, AQUARIUS shall:
A. Provide CITY with a written report in the form of an
audit which sets forth the total gross sales and net sales at each
EVENT, the date of the EVENT, the number of alcoholic beverages
sold at each EVENT in the category of beer and wine and the category
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of other alcoholic beverages, the price of each type of alcoholic
beverage and such other information that will be deemed necessary
by the Director of the Civic Auditorium of CITY. Said audit
will be in the form specified by the Director of the Civic Audi-
torium of CITY;
B. Pay to the CITY the compensation specified in Paragraph 5
above.
7. PERSONNEL.
A. AQUARIUS represents that it has, or shall secure at its
own expense, all personnel required ap perform the services under
this Agreement including, but not limited to, security personnel as
deemed necessary by Director of Civic Auditorium of CITY.
B. All of the services required hereunder shall be performed
by AQUARIUS or under its supervision and all personnel engaged in
the work shall be fully qualified and shall be authorized or permitted
under State and local law to perform such services.
8. TIME OF PERFORMANCE.
The services of AQUARIUS are to commence as soon as practi-
cable after the execution of this Agreement.
9. PERSONAL EQUIPMENT AND MAINTENANCE,
A. AQUARIUS shall acquire, provide, maintain and repair
at its sole cost and expense such equipment, materials, supplies,
etc. as AQUARIUS needs for its use for the proper conduct of the
aforesaid services.
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B. AQUARIUS shall be solely responsible for the cleaning and
maintenance of the immediate area in which they perform the services
specified in Paragraph 3 and any storage areas provided by CITY.
10. COMPLIANCES.
AQUARIUS, in performance of the services contemplated hereunder,
shall comply with all statutes, State or Federal, and all ordinances,
rules and regulations enacted or issued by the CITY and shall act to
insure - compliance in a manner subject to the approval of the Director
of the Civic Auditorium of the CITY.. Within ten days after the execu-
tion of this agreement, AQUARIUS shall furnish to the CITY copies
of all local, State, and Federal licenses required to perform the
services set forth in Paragraph 3 herein.
11. RECORDS.
AQUARIUS shall maintain complete and accurate records with
respect to net and gross sales, costs, expenses, receipts inventory
and other such information required by the Director of the Civic
Auditorium of the CITY. All such records shall be maintained on a
generally accepted accounting basis and shall be clearly identified
and readily accessible. AQUARIUS shall provide free access to the
representatives of CITY, the State of California, and the Comptroller
General of the United States, or their appointees, at all proper
times to such books and records, and the right to examine and audit
same, and to make transcripts therefrom as necessary, and to allow
inspection of all work, data, documents, proceedings and activities
related to this Agreement. Such records, together with supporting
documents, shall be kept separate from other documents and records
and shall be maintained for a period of three (3) years after
receipt of final payment.
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12. TERMINATION BY CITY FOR BREACH.
In the event AQUARIUS hereto fails or refuses to perform
any of the provisions hereof at the time and in the manner required
hereunder, AQUARIUS shall be deemed in default in the performance
of this agreement. If such default is not cured within a period of
five (5) days after receipt by AQUARIUS from CITY of written notice
of default, specifying the nature of such default and the steps
necessary to cure such default, CITY may terminate the agreement
forthwith by giving to the defaulting party written notice thereof.
Upon such termination or upon failure to complete
services to be provided, AQUARIUS shall pay to CITY that
proportion of the compensation specified in Paragraph 5 unpaid
by AQUARIUS prier tc the effective date of termination,
13. TERMINATION BY CITY WITHOUT CAUSE.
The CITY shall have the option, at its sole discretion, of
terminating this Agreement by giving thirty (30) days written
notice of termination to AQUARIUS as provided for hereinafter. Upon
termination of this Agreement, AQUARIUS shall pay to CITY that
portion of the compensation specified in Paragraph 5 unpaid by
AQUARIUS prior to the effective date of termination.
14. NOTICES.
All notices, demands, requests or approvals to be given
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under this Agreement, shall be given in writing and shall be deemed
served when delivered personally, or seventy-two (72) hours after
the deposit thereof in the United States Mail, postage prepaid,
registered, or certified, addressed as hereinafter provided.
All notices, demands, requests or approvals from AQUARIUS
to CITY shall be addressed to the Director of Civic Auditorium,
1855 Main Street, Santa Monica, California 90401.
All notices, demands, requests or approvals from CITY to
AQUARIUS shall be given to Aquarius Concession Company, Inc.,
1900 Avenue of the Stars, Suite 970, Los Angeles, California 90067.
15. INDEPENDENT CONTRACTOR.
In performance of this Agreement, both parties will be
acting in an independent capacity and not as agents, employees,
partners, or joint ventures of one another.
16. INSURANCE
A. Proof of Carriage of Insurance. 60ithin ten days after
the execution of this Agreement, AQUARIUS shall furnish the CITY
with certificates showing the type, amount, class of operations
covered, effective dates and dates of expiration of policies. Such
certificates, which do not limit AQUARIUS's indemnification, shall
also contain substantially the following statements: "The insurance
covered by this certificate will not be cancelled or materially
altered, except after ten (10) days written notice has been received
by the CITY."
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B. The policies of insurance which must be secured are:
(1) General Liability: Insurance coverage shall
include, but is not limited to, bodily injury, public a3ability and
property damage. This policy's single limit liability amount shall
not be less than Two Million Dollars ($2,000,000.00).
(2) Workers' Compensation: All employees of
AQUARIUS must be included under such policy in an amount and with
coverage tc meet all requirements of the Labor Code of the State
of California.
C. CITY, its officers and employess shall be named as
additional insured on all policies of liability insurance. All
policies of insurance shall be in a company authorized by law to
transact insurance business in the State of California.
17. GOVERNING LAW.
The validity of the Agreement and any of its terms or
provisions, as well as the rights and duties, shah be interpreted
and construed pursuant to the law of the State of California.
18. PARAGRAPH HEADINGS.
The paragraph headings contained herein are for convenience
and reference only and are not intended to define or limit the
scope of this agreement.
19. INDEMNIFICATION AND HOLD HARMLESS.
A. AQUARIUS agrees to indemnify, defend and save harmless
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CITY, its officers, agents and employees from and against any and
all liability, suits, claims, losses, damages, costs and expenses,
whatsoever, accruing or resulting to any and all persons, firms
or corporations furnishing or supplying work, services, materials
or supplies in connection with the performance of this Agreement,
and from any and all liability,. suits, claims, losses, damages,
costs, and expense, whatsoever which may be asserted, prosecuted
or established against the CITY, its employees and/or agents
arising out of or in any manner connected with AQUARIUS ''s performance
of this Agreement. AQUARIUS further agrees to reimburse C3TY for
reasonable attorneys' fees and costs incurred by CITY as a result
of defending against third-party claims or suits which arise out
of AQUARIUS's performance hereunder.
B. AQUARIUS, as a material part of the consideration of this
Agreement, hereby waives any and all present and future claims
agains CITY, its officers, agents and employees for liability, suits,
claims, losses damages, costs and expenses which relate or pertain
to its goods, wares, merchandise, snstallatcns, personal property or
equipment, inventory in, upon or about the Santa Monica Civic Aud-
torium, and for injuries to AQUARIUS, its agents or employees or
persons in and about the Santa Monica Civic Auditorium from any
cause arising at any time other than intentional misconduct on the
part of CITY, its officers,. agents and employees.
C. AQUARIUS accepts the Santa Monica Civic Auditorium and
any other improvements thereon in their present condition, and is
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without any representation or warranty by CITY as to the condition
of such, and the CITY shall not be responsible for any latent
defect or change of condition in the Santa rionica Civic Auditorium,
or improvements thereon, or for any change in the condition or for
any damage occurring thereto, or because the existence of any
violations of-any state, county, or municipal statutes, laws or
regulations.
20. PROHIBITION OF ASSIGNMENT OR TRANSFER,
AQUARIUS shall not assign or otherwise transfer this agreement
or any interest therein. Any attempted transfer or assignment will
be void and of no force and effect and any assignee or transferee
shall acquire no right or interest by reason of such attempted
assignment or transfer..
21. INTEGRATED CONTRACT.
This Agreement supercedes any and all other agreements,
either oral or in writing, between the parties hereto with respect
to services of AQUARIUS, and contains all the covenants and condi-
tions between the parties with respect to any services in any manner
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whatsoever. Each party to this Agreement acknowledges that no
representation, inducements, promises, or agreements, orally or
otherwise, have been made by any party, or by anyone acting on
behalf of any party, which are not embodied herein, and that no
agreement, statement or promise not contained in this Agreement
shall be valid or binding. Any modification of this Agreement
will be effective only by written execution signed by both CITY
and AQUARIUS.
IN WITNESS WHEREOF the parties hereto have executed this
Agreement on this U, °~- day of _ q~~~ 1981,
AQUA S CONCESSIO COMPANY, INC.
By:
Title: i~ / // ~~~/ .
CITY OF SANTyA MO ICS
f ' rf ~F _ /~ F"
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Title: ~~7~~
ATTEST:
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City Clerk
APPROVED AS TO FORM:
in Cit Attorn
g Y Y
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