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HomeMy WebLinkAbout16 T SPTS PK CONCESS 10-17-94NO. 16 10-17-94 DATE: October 11, 1994 Inter-Corn TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER COMMUNITY SERVICES DEPARTMENT TUMTIN SPORTS PARK CONCESSION REQUEST FOR PROPOSAL RECOM](ENDATION: Approve the Request For Proposals For a Food Concession And/or Tennis Concession at the Tustin Sports Park. FISCAL IMPACT: The buildings on the site are being constructed as shells. The successful proposer(s) will be responsible for the expenses to outfit the buildings for the respective operations. Actual projected revenue to the City from concession operations will be based on responses to the Request for Proposals (RFP). The proposers responses will be based on a fixed monthly rate as well as a percentage of projected-revenue. BACKGROUND: The design and planning process for the Tustin Sports Park determined that food and beverage and tennis services could best be provided by contract concessionaires. Such concessionaires are best suited to yield expert services while providing the City with a revenue source to help offset park operations. To secure qualified concession operators, staff has drafted the attached (RFP). This RFP allows proposers to respond as a food and beverage concession only; a tennis concession only; or both food and beverage and tennis. Below is a proposed timeline for the RFP: City Attorney review City Council approval 45 day proposal advertisement and preparation period Pre-proposal Conference Review proposals and interview top proposers Select successful proposer(s) Negotiation lease terms City Council report due City Council approval of agreement October 10 - October 14, 1994 October 17, 1994 October 20 - December 5, 1994 Nove~uber 9, 1994 December 5 - 28, 1994 December 28, 1994 December 28, 1994 - January 12, 1995 January 11, 1995 January 16, 1994 Staff has developed a list of 23 firms which have expressed interest in submitting proposals. Staff will also advertise the RFP in local and regional newspapers and trade journals. Recreation Supervisor Susan M. Jones Recreation Superintendent Christine A. Shingleton Assistant City Manager Attachments R~2: TSPR FP. CC REQUEST FOR PROPOSAI JS FOR A FOOD CONCESSION AND/OR TENNIS CONCESSION TUSTIN SPORTS PARK CITY OF TUSTIN TUSTIN SPORTS PARK REQUEST FOR PROPOSAL FOOD CONCESSION/TENNIS CONCESSION TABLE OF CONTENTS Section Description Request for Proposals A. Purpose B. Background C. Scope of Proposal 1. Bid Components a. Tennis concession b. Food and beverage concession 2. Term of Concession 3. Concession Payment 4. Sample Contract 5. Scope of Operations a. Food and Beverage Operations b. Tennis concession operations c. General standards 6. Special Provisions Scope of Proposals 1. Request for Proposals Process 2. Pre-Proposal Conference 3. Public Records Act 4. Bid Documents 5. Representations 6. Special Provisions II. Instructions to Proposers Ao Responsiveness to Request for Proposal Qualifications Proposal Contents 1. Proposal Forms 2. Statement of Professional History 3. Affidavit to Accompany Proposals 4. Equal Employment Opportunity Certification 5. Authorization Affidavit to Release Information 6. Special Information a. Financial Statement b. General Business Statement c. Business References PaRe No. I-1 I-1 I-1 1-1 I-1 I-1 I-2 I-2 I-2 I-2 I-2 1-2 I-3 I-3 I-4 I-4 t-4 1-4 I-5 I-5 I-5 I-6 II-1 II-1 II-1 1I-1 II-1 II-1 II-1 II-1 II-1 II-2 II-2 II-2 II-2 d. Professional References e. Financial References f. Concession Payment g. Cash Flow Analysis and Proforma h. Proof of insurability i. Proposed Price List/Menu j. Service Program k. Maintenance and Operation Plan 1. Capital improvement Program m. Preparation of Proposals n. Proposal Guarantee o. Advance p. Submission of Proposals q. Deadline for Submission of Proposals III. Selection Process and Evaluation Criteria A. Selection Process B. Evaluation Criteria 1. Proposer's Experience and Capability 2. Payment of Concession 3. Capital Improvement Program 4. Service Program 5. Program Concepts and Approach 6. Local Experience 7. Response to Instructions to Proprosers C. Evaluation Process D. Approval of Contract Attachment A Sample Lease Attachment B Plans of the Concession Building Attachment C Site Plan Attachment D Project Tustin Sports Park Program Participation Attachment E Insurance Form II-3 11-3 II-3 II-3 II-3 II-4 II-4 1I-4 II-4 II-4 11-$ II-6 II-6 II-7 III-1 III-1 III-1 1II-1 1II-1 III-1 III-1 1II-2 1II-2 III-2 II1-2 III-2 SECTION I REQUEST FOR PROPOSAL I. REQUEST FOR PROPOSALS A. PURPOSE The City of Tustin is requesting proposals from qualified firms or individuals to provide for the operation of a tennis concession and the maintenance and operation of a food and beverage concession in Tustin Sports Park or for the operation of a tennis concession only or food and beverage concession only. B. BACKGROUND The City of Tustin is currently constructing a 20 acre sports park. The park site is located on Jamboree Road between Keller Drive and Robinson Drive and addressed as 12850 Robinson Drive. The. park will feature six lighted tennis courts, three lighted softball/multipurpose fields, two lighted soccer fields, a picnic shelter with seating for 85 people, two lighted outdoor basketball courts, parking for 210 cars, a playground, a and 2,700 square feet concession/storage/restroom building. Tennis facilities at the park will include six (6) lighted tennis courts with bleacher seating and a pro-shop. The tennis program will operate from office space in the concession building located in the center of the park (see Site Plan and Building Floor Plan included as Attachment B). The park site is adjacent to a 10 acre elementary school site. The Tustin Unified School District expects to open the school for children in fall of 1995. Potential organized activities planned for this park will include: adult softball (year round week day evenings); weekend softball tournaments (approximately 45 per year); youth soccer practice and games; tennis lessons and tournaments; and group picnics. Drop-in activities expected for the park will include: playground use; tennis games and basketball games; picnics; and jogging. SCOPE OF PROPOSALS 1. BID COMPONENTS The City will accept proposals for any of the following or any combination thereof: Operation of a tennis concession comprised of developmentoftennisprograms and services needed by the general public. Operation of thefacility will include pro-shop sales and services, court rentals and reservations, leagues, Competition ladders, tournaments and lessons. o o o Operation of a food and beverage concession which would serve as a snack bar for park visitors and participants in sporting activities located at the park. TERM OF CONCESSION The minimum term of any concession shall be five years, commencing on the date a concessionaire first opens for business. Two five year extension options could be available. The conditions for exercising such options shall be specified during contract negotiations. CONCESSION PAYMENT No minimum concession payment has been attached to any or all requested operations addressed in this Request for Proposal. Those firms submitting a proposal are required to set forth a monthly minimum base concession payment on each component of the operations/facilities bid upon. This base concession payment shall be paid monthly. For each bid component, an additional percentage fee shall be made to City based on a pementage of gross receipts to be made at least quarterly. Proposers are highly encouraged to reference current market data regarding their proposed concession payment amounts. SAMPLE CONTRACT A Sample contract is included in this Request for Proposal. Regardless, whether one of two concession agreements are desired, the City would expect that any final operating agreement would at least contain terms and conditions that resemble those contained therein. Any proposal modification to the agreement should be accompanied by an explanation as to why the modification is requested. The City may not waive federal and state requirements. SCOPE OF OPERATIONS a. Food and Beverage Operations The City is constructing a building which will have tenant shell space of approximately 1,000 square feet for food and beverage operations. The successful proposer shall also install furnishings and equipment and shall operate and shall keep the facilities open to the public during regularly scheduled hours of park operation (see Schedule of Events, Exhibit 3) as required by the City and as the City deems shall adequately serve the public. The successful food and beverage concession shall be open for business a minimum of 15 hours per week. 1-2 Tennis Concession Operations The City is constructing a building which will have tenant shell space of approximately 300 square feet for terinis concession operations which shall include operation of a tennis pro shop. The concession operation will also be responsible for the maintenance of tennis lights, including replacing lights, and resurfacing of courts when necessary. The successful proposer shall be responsible for weekly washing of the tennis courts. Proposer shall further be responsible for purchasing and replacing all nets and windscreens. The tennis courts have been designed as community facilities. A minimum number of two (2) courts shall be available for walk-on open play at no cost at all times. Such courts will be.available for one hour or two sets. Court reservations can be made on the remaining four (4) of the tennis courts. If these four (4) courts are not reserved or scheduled for a clinic or tournament, they shall be available for walk-on open play Lessons shall be available to 'the public at competitive rates determined by the Proposer and approved by the City. Court reservations shall be for a period of sixty (60) minutes each, with a per court hourly charge, which will be established by the City. Court reservations will be for Tustin residents only. Lights are available for a charge of dollars ($ ) per court for sixty (60) minutes. Tennis lights will be metered so they may be used when the pro shop is closed. Tennis court lighting will be programmed to shut off at 10:00 p.m. Reservations shall be on a first-come, first-served basis. The Concessionaire may elect to change reservation rates only when notice is received by the City and upon thirty (30) days written notification. General Standards applicable to all concession operators. All concessionaires shall be operated as a public accommodation and in a non-discriminatory manner. Utility services will be available with the monthly costs for services to be borne by the proposer. Services and equipment shall be subject to inspection and approval by the City Building Department, County Health Department and Fire Marshal, as applicable. I-3 The City shall be responsible for the maintenance and repair of the exterior of all concession structures, unless the concessionaire has been found by the City to have been responsible for damage. Proposers shall be responsible for maintenance and all tenant improvements to all interior concession areas. SPECIAL PROVISIONS Proposers are required to respond to special provisions identified in Instructions to Bidders. D. SCOPE OF PROPOSALS 1. REQUEST FOR PROPOSALS PROCESS The City, at its sole discretion, may reject any or all proposals submitted in response to this RFP. The City shall not be liable for any cost incurred in connection with the preparation and submittal of any proposal. In the event the City accepts a proposal, an agreement may be entered into with the proposer who has submitted the proposal deemed to be in the best interests of the City. Selection of the best proposal(s) will be made on the basis of the criteria set forth in this RFP. The City reserves the right to negotiate the final terms of any agreement(s) with one or more of the highest rated, responsible proposers. Proposers are cautioned that any response to their RFP shall not be considered a "bid" pursuant to the Public Contracts Code of the State of California. Subsequent to advertisement and solicitation of proposals by the City, proposals shall be received and evaluated. Thereafter, a final contract may be recommended to the City Council for its approval. 2. PRE-PROPOSALCONFERENCE Prior to submittal of proposals, a Pre-Proposal Conference will be held on the site for the purpose of inspecting the site and answering questions about the site and anticipoted tenant concession areas. Location: Tustin Civic Center 300 Centennial Way Date: November 14, 1995 Time: 10:00 a.m. Only those questions concerning the proposal process, and questions resulting from the walk-through inspection will be considered in the presence of all attendees. There will be no private or unilateral consultations prior to the City's deadline for Receipt of Proposal. Any questions that arise after the Pre-Proposal Conference must be submitted in writing. Questions and resulting answers will be made available to all proposers. NOTICE TO PROPOSERS REGARDING THE PUBLIC RECORDS ACT Documents submitted in response to this RFP are subject to public disclosure as permitted by the California Public Records Act. Specifically, responses to this RFP become the exclusive property of the City of Tustin. At such time as the City Manager recommends approval of an agreement to the City Council, and such recommendation appears on the Council's agenda, all proposals submitted in response to this RFP become a matter of public records and shall be regarded as such. Exceptions will be those elements in each proposal which are trade secrets as that term is defined in California Government Code Section 6254.7 and which are so marked as "Trade Secret", "Confidential", or "Proprietary". The City shall not in any way be liable or responsible for the disclosure of any such records including, without limitation, those so marked if disclosure is deemed to be required by law or by order of the Court. Proposers who indiscriminately and without justification identify ali or most of their proposal as exempt from disclosure may be deemed unresponsive. In the event the City is named in any litigation seeking the release of all or part of a proposal submitted in response to this RFP, the proposer shall hold harmless and indemnify the City of any liability, including attorneys fees incurred by the City in its defense. BID DOCUMENTS An RFP package is available for public inspection at the Tustin Civic Center Community Services Department, 300 Centennial Way, Tustin, CA 92680. REPRESENTATIONS The City will not be bound by any representations that are not set forth in the RFP, any minutes of the Pre-Proposal Conference if made, and any final agreement. The Proposer is responsible for making all necessary investigations and examinations of documents, operations and premises affecting performance. Failure to do so will not act to relieve any condition of the above documents. It is mutually agreed that the submission of a bid shall I-5 be considered conclusive evidence that the bidder has made such investigations and examinations. Any reasonable inquiry to determine the responsibility Of a proposer may be conducted. The submission of a proposal shall constitute permission by the proposer for the City to verify all information contained therein. If the City deems it necessary, additional information may be requested from the proposer. The failure of a proposer to promptly supply information in connection with such inquiry, including but not limited to, information regarding past performance, financial stability, and ability to perform on schedule, may be disqualification from further consideration. do The proposer may withdraw its proposal at any time prior to the date and time which is set forth herein as the deadline for acceptance of proposals, upon written request for same. All proposals shall be firm offers and may not be withdrawn for a period of ninety (90) days following the date set to receive the proposals. The City reserves the right to consider a late proposal. However, should that happen, all timely responsive respondents shall be given an additional period of time equivalent to the late submittal with which to supplement and/or modify the proposals that were submitted on time. SPECIAL PROVISIONS In addition, proposers are required to respond to special provisions identified in Instruction to Proposers. I-6 SECTION II INSTRUCTIONS TO PROPOSERS II. INSTRUCTIONS TO PROPOSERS A. PROPOSALS DEEMED RESPONSIVE TO THIS RFP The Proposer's response to the RFP must be made according to the specifications set forth in this section, both for content and sequence. Any proposal failing to comply with said specifications and therefore deemed to be non- responsive shall be subject to rejection by the City. B. QUALIFICATIONS Each proposer should demonstrate the following qualifications in responding to this Request for Proposal: Must demonstrate a minimum of three (3) years of experience within the last ten (10) years in the operation of a food facility/concession or snack bar and/or tennis operation. Must possess a line of credit in the amount satisfactory to the City Attorney to equip and operate the concessions that the proposer is responding to. Food and beverage operations must possess a complete past record of employment or history of business experience in the operation of a food business as verified and supported by references or letters. Proposed Tennis operations must possess demonstrated knowledge, education, reputation and performance with tennis programs as verified and supported by references or letters. C. PROPOSAL CONTENWS The Proposal must contain the following information: 1. Proposal Forms. (Page II-8,9) 2. Statement of Professional History. (Page II-10,11) 3. Affidavit to Accompany Proposals. (Page II-12) 4. Authorization to Release Information. (Page II-13) 5. Equal Employment Opportunity Certification (Page II-14) II-1 Special Information a. Financial Statement A full detailed and audited presentation of the true condition, including the last fiscal year, of the Proposer's assets, liabilities and net worth. This report must include a balance sheet and income statement. If the Proposer is a partnership or joint venture, individual financial statements must be submitted for each general partner or joint venture thereof. In the event funds are to be borrowed to finance any portion of the total investment, a Letter-of-Intent from the bank or other lending agency must be attached, indicating the minimum amount which will be loaned and any applicable percentage rate. The Letter-of-Intent may contain the qualification that the loan will only be consummated upon award of an agreement with the City. b. General Business Statement A statement of all the proposer's important business activities. This statement should emphasize Proposer's experience in concession operations that the proposer is responding on, (i.e. the development, management and operation of a food concession similar to those specified herein, or the development, management and operation of tennis programs or sports concessions). This shall include at least four (4) years of operational data, including but not limited to; gross receipts by major categories, operational cost by major categories, and number of employees. In the event that the Proposer has provided such services on a contractual basis to a public agency or private entity, the Proposer shall submit the name, address, and phone number of each clientele, a brief description of the services provided and other pertinent data. Further, the Proposer must identify any such agreements and or contracts that, within the last ten (10) years, have been canceled or not renewed. Business References A minimum of five (5) business references including names, addresses, telephone numbers and nature and magnitude of the business association in each instance. These references must be persons or firms with whom you have transacted business during the past five (5) years. II-2 d, Professional References A minimum of five (5) professional references including names, addresses, telephone numbers and nature and magnltude of the professional association in each instance. Financial References A minimum of five (5) financial references including names, addresses and telephone numbers in each instance. It is required that two (2) of the five (5) references must be banks or savings and loan institutions; and the type of relationship shall also be indicated (e.g. checking accounts, savings, real estate loans, construction loans). Concession Payment A proposed concession payment plan as specified in Section I.,items C.2 and C.3 of this RFP for each concession operation being bid upon. Cash Flow Analysis and Proforma An analysis of the proposer's evaluation of the projected ability of the subject facility/concession to provide sufficient revenue to recapture proposer's investment, coy.er operating costs, service any debt and provide a rate of return. The analysis shall reflect a minimum of the first five (5) years of operation and indicate the estimated annual revenue and operating expense figures. The pro forma shall include: 1) 2) 3) A list of all revenue producing operations; A complete breakdown of anticipated operating expenses; and A list of all anticipated funding sources for your proposal. Proof of Insurability Proposers currently providing similar services shall submit a current Certificate of Insurance for the operations involved. Absent such Certificate, Proposer may submit a letter of commitment from an acceptable insurance company setting forth that the required insurance coverage, as described in the Sample Agreement, will be available at the time the commencement of the contract term. Letters of intent from insurance brokers will not be considered acceptable. Liability insurance II-3 jo mo coverage should be for $1 million combined single limit and should name the City of Tustin as additional insured. Proposed Price List~lenu A menu of contemplated foods and a list of anticipated prices, fees and charges for all contemplated foods and services to be sold or provided by the food concession shall be identified. Service Proqram A narrative description of all services, programs, and activity levels contemplated for each bid component. Said program shall also include a list of equipment and inventory to be furnished by the proposer with the anticipated cost of said items. Maintenance and Operation Plan A proposed maintenani:e and operations plan including the costs for the provision of the following: payroll/benefits; utilities; service/supplies; equipment; maintenance/repair of tenant facilities. Capital Improvement ProGram A capital improvement program is essential to ensure that the concession operations will be implemented. The plan should include: Proposed tenant improvements A schedule for completion of tenant improvements An estimated budget of improvements proposed Preparation of Proposals The proposal must be submitted typewritten on 8 1/2" x 11" white paper and must be bound in a secure manner. If the proposer wishes to submit material and data which is not specifically requested, do not include with the Proposal. This material must be included in an "Additional Data" section only. The following are examples of Additional Data: Standard sales brochures and pictures/photographs; Promotional material with minimal technical content; Generalized narrative of supplementary information; Supplementary graphic materials; II-4 If the proposal is made by an individual, it shall be signed with the full name of the Proposer, and his or her address shall be given. If it is made by a partnership, it shall be signed with the parthership name and by an authorized general partner and the full name and address of each general partner shall be given. If it is made by a joint venture, it shall be signed with the full name and address of each partner thereof. If it is submitted by a corporation, is shall be signed by the president and secretary in the corporate name and the corporate seal shall be affixed in the place provided. In all cases, each signature must have the proper acknowledgement of execution attached to the Proposal Form. When proposals submitted by corporations or partnerships are signed by an agent other than an officer of a corporate officer or a general partner, a power of attorney from the corporation or a general partner of a partnership authorizing the signature must be submitted with the proposal; otherwise the proposal will be rejected as unauthorized and irregular. If the proposal is submitted by a partnership or joint venture, the Statement of Personal History attached to the Proposal Form must be completed by each general partner or joint venture thereof. If the proposal is submitted by a corporation, a Statement must be completed by each principal officer of said corporation. o More than one proposal from an individual, firm, partnership, corporation, joint venture, or association under the same or different names will not be considered. ° No Telegraphic, telephonic, or faxed proposal, or modification to a proposal will be accepted by the City. Proposal Guarantee Each Proposer shall submit with its Proposal either a cashier's check or a check certified by a responsible bank in either Orange, Riverside, San Bernardino, Los Angeles, or Ventura Counties and made payable to the City of Tustin in the amount of $500. This amount shall serve as a proposal fee and shall be non-refundable. No proposal shall be considered unless it is accompanied by a cashiers or certified check in said amount. Deposit of such funds shall not guarantee that an agreement will be approved by the City. II-5 Advance The proposer(s) selected by the City to enter into contract negotiations shall be required to deliver to the City an advance of funds in the amount of $2,000 in cash, or cashiers or certified check. Deposit of such funds shall not guarantee that a contract will be approved by the City. The City shall have the right to draw down on and to spend whatever portion of the advance as necessary for expenses associated with contract negotiations, including but not limited to, consultant fees and legal counsel fees. The City shall maintain accurate documentation of such expenditures. This information shall be made available to the proposer upon request. The advance is the initial amount to be placed by the proposer with the City. In the event, during the contract negotiation period, all of the initial amount or the advance is expended and the City reasonably believes additional funds are necessary to pay for the costs associated with the proposed contract, the City shall make a written request to the proposer for the funds to cover those additional expenses. No interest shall accrue or be due. the proposer this advance. Funds not expended will be refunded. Submission of Proposals The original proposal and four (4) additional copies must be submitted in a sealed envelope, plainly marked with the name, address and telephone number of the Proposer and bearing the words: "Proposal for a Concession Operations at Tustin Sports Park." It is the sole responsibility of the Proposer to see that the proposal is received before the submission deadline. A proposer shall bear all risks associated with delays in the United States Mail. The City reserves the right to consider a late proposal. However, should that happen, all timely responsive respondents shall be given an additional period of time equivalent to the late submittal with which to supplement and/or modify the proposals that were submitted on time. II-6 q. Deadline for Submission of Proposals The City will receive proposals at the location indicated below: C~ty Clerk's Office Tustin Civic Center 300 Centennial Way Tustin, CA 92680 The time and date set for receipt of proposals is on or before , 1995, prior to 5:00 p.m. local time. II-7 Name of Proposer 1 propose to provide in the following attachments. PROPOSAL FOR CONCESSION AT TUSTIN SPORTS PARK 1. Minimum qualifications concession services, at Tustin Sports Park, as described 2. Statement of Professional History 3. Affidavit to Accompany Proposals 4. Special Information 5. ACthorization to Release Information 6. Equal Employment Opportunity Certification I have read the Sample Agreement and related information in this Request for Proposal. I am personally acquainted with the premises of the above-named facility and am acquainted with the uses to be granted as identified in the Sample Agreement and I meet the qualifications for submitting a proposal. I have enclosed a certified or cashier's check in the amount of Five Hundred Dollars ($500), payable to the City of Tustin as a guarantee that I will enter into an agreement in the event my proposal is accepted. The undersigned hereby respectfully submits this proposal, including all required documents and statements. II-8 (Indicate the form of business concern on the line above i.e. corporation, individual, partnership, joint venture. (Indicate your, position, title or function.) Signature Signature Address Address ( ) ( Telephone # Telephone # Warning: Proposals are subject to being rejected as non-responsive of this proposal 'form is not fully executed including the certificate of the notary and the notarial seal Proposal Guarantee Professional References General Business Statement Statement of Personal History Bidder's EEO Certification Maintenance Program Authorization to Release Information Financial Statement (This document to be notarized) FOR OFFICE USE ONLY Business References Proposal Form, Notarized Financial References Proposed Price List/Menu Affidavit Service Program II-9 STATEMENT OF PROFESSIONAL HISTORY LEGAL NAME dba (if any). 2. RESIDENCE ADDRESS 3. BUSINESS ADDRESS 4. TELEPHONE: Residence Business 5. SOCIAL SECURITY NUMBER Have you or your spouse ever filed for bankruptcy or been declared bankrupt7 Yes __ No __ Have you ever been fired or asked to resign? Yes No Have you as an adult ever been convicted, fined, placed on probation, given a suspended sentence in any court, or had any convictions expunged under Sections 1203.4- or 1203.4A of the Penal Code? Yes No Have you, or any principal, ever had a bond or surety canceled or forfeited? Yes No NOTE: If you answered "Yes" to any questions in Item 6 above, pertinent details must be provided on an additional sheet. Failure to do so may result in a delay, or possible disqualification of the proposal. II-10 I hereby certify that all statements made on or in connection with this Statement of Personal History are true to the best of my knowledge and belief, and I understand and agree that any misstatements or omission of material fact may cause forfeitur~ on my part of all rights to the proposed agreement to be awarded by the City of Tustin. Signature Date II-11 AFl STATE OF CALIFORNIA City of Tustin ,VIT TO ACCOMPANY PROP{. ) ) as ) That he/she is of : being first duly sworn, deposes anti states: who submits herewith to thc City of Tusfin the attached proposal; Affiant deposes and states: That the proposal is genuine; that the same is not a sham or collusive; Ihat all stalements of fact therein are tree; that such proposal was not made in the interest or behalf of any person, partnership, company, as&-',ciation, organization, or corporation nol therein named or disclosed. Affiant deposes and states: That the proposer has not directly or indireclly by agreement, communication, or conference with anyone attempted to induce action prejudicial Io the interest of the City of Tustin, or any other proposer, or anyone else interested in the proposed agreement; thai the proposer has not in any manner sought by collusion to secure for himself, itself, or themselves, an advantage over any oih.:r proposer. Affiant further disposes and states: (a) T~at none of our employees are employees of the City of Tusfin. Treat no City employee or City Council member serves as officers, principals, partners, or major shareholders of this proposer, (c) That we are not former City employees who have been employed by the City of Tustin in thc twelve months immediately preceding the date of this affidavit in positions of substantial responsibilily in the area of service to be provided by the proposed agreement, and that no such employees have taken part in the development of said proposed agreement or its service specifications, (d) Wi~at no person who has been employed by the City within the twelve months immediately preceding this affidavil serves as an officer, principal, partner, or major shareholder of Ibis proposer. I understand and agree that any falsification in this affidavit will be grounds for rejection of this proposal or cancellation of any agreement awarded pursuant Io this proposal. I cerlify under penalty of perjury under the laws of the State of California that the foregoing is correct and tree. Signed: WARNlNG Signature Title PROPOSALS WILL NOT BE CONSIDERED UNLESS THE AFFIDAVIT HEREON IS FULLY EXECUTED INCLUDING THE CERTIFICATE OF THE NOTARY AND THE NOTARIAL SEAL. Dated II-12 CITY OF TUSTIN AUTHORIZATION TO RELEASE INFORMATION I hereby authorize the release of all financial and credit information and/or verification of employment to the City of Tustin as said items related to my interest in securing an agreement with the City. This form may be reproduced or photocopies to be utilized as my consent to release financial and credit information or employment verification. Print Name Here Signed Financial Institution Applicable Accounts(s) (number and type) Financial Institution Applicable Account(s) (Number and Type) II-13 EQUAL EblPLOYMENT OPPORTUNITY (EEO) CERTIFICATION Bidder's Name Address Internal Revenue Service Employer Identification Number GENERAL The undersigned certifies and agrees that all persons employed by such firm, its affiliates, subsidiaries, or holding companies are and will be treated equally by the firm without regard to or because of race, creed, color, national origin, political affiliation, marital status, age, disability, or sex and in compliance with all anti-discrimination laws of the United States of America and the State of California. PROPOSER'S CERTIFICATE The proposer has a written employment. policy statement prohibiting discrimination in all phases of Yes No The proposer periodically conducts a self analysis or utilization analysis of its work force. Yes No The proposer has a system for determining if its employment practices are discriminatory against protected groups. Yes No Where problem areas are identified in employment practices, the proposer has a system for taking reasonable corrective action to include establishment of goals and timetables. Yes No (Please Type or Print) Name and Title of Signer Signature Date - I1-14 SECTION III SELECTION PROCESS AND EVALUATION CRITERIA IlL Bo o SELECTION PROCESS AND EVALUATION CRITERIA SELECTION PROCESS The City reserves the right to act as sole judge of the content of the proposals submitted for City's evaluation and selection. EVALUATION CRITERIA Selection of the best responsible proposal will be based upon the following considerations and criteria: 1. Proposer's Experience and Capability ao Proposer's demonstrated financial status and ability to finance the proposal submitted. bo Proposer's demonstrated ability to provide for the operation of the components bid upon. Co Proposer's demonstrated experience in the operation of a food and beverage service and/or tennis operations. Proposer's verified history of compliance with obligations and responsibilities assumed for food and beverage service operations aDd/or tennis operations. Payment of Concession The proposed amount of concession fees to be paid to the City on all components for which a proposal is submitted. Capital Improvement Program Any capital improvements offered by the proposer beyond the scope of this RFP. The nature and extent to which proposer's capital improvements will demonstrate positive, operational improvements to proposed shell improvements. Service Program a. The nature and extent of concession services to be offered to the public. III-1 b. Proposed maintenance of facilities proposed. 5. Program Conc~epts and Approach Demonstration of the Proposer's understanding of the Tustin Sports Park program, as impacted by: the site's physical characteristics, the public which will be receiving the services provided; and the local municipal and political environment. 6. Local Experience Consideration will be given to operators who have demonstrated experience in food and beverage concessions and/or tennis operations in the Southern California area. 7. Response to Instructions to Proposers EVALUATION PROCESS The evaluation of the proposals will be conducted by an evaluation team/committee selected by the Assistant City Manager. The committee may be generally comprised of City personnel, and my include experts from the private sector. In all cases, the committee will have the appropriate experience in the conduct, administration and evaluation of projects, proposa}s, lease agreements, construction contracts, bid documents and operations similar to the subject of this RFP. In connection with its evaluation, the Committee may, at its option, request interviews. During these interviews, the proposers will be allowed to present such evidence as may be appropriate in order that the staff can accurately analyze all materials and documentation submitted as part of the proposals. The committee will employ the applicable criteria and their expertise in evaluating all proposals, and thereafter shall submit a report to the City Manager detailing a highest-to- lowest ranking of all responsive proposals. At his option, the City Manager may reject all proposals submitted, or direct staff to enter into negotiations with one or more of the highest rated responsive proposals. Such negotiations are intended to result in a final contract deemed to be in the best interests of the City. APPROVAL OF CONTRACZ'i' Subsequent to the evaluation process, the City Manager will present a recommendation to the City Council for its approval of a concession agreement/service contract that said City Council award a contract to the successful proposers. Such recommendation shall be presented at a regular meeting of the City Council and is subject to public review and comment. III-2 ATI'ACHMENT A Sample Lease 111-3 SAMPLE LEASE THIS LEASE is made and entered i~to on this day of by and between the CITY OF TUSTIN, hereinafter r~:ferred to as "CITY" and hereinafter referred to as "LESSEE"; RECITALS Ao The City is the owner of the 20 Acre Tustin Sports Park site and is currently constructing an active sports park; and Bo The City Council is authorized by the provision of Government Code Section 37396 to lease City park and recreation property for the provision of services consistent with public park and recreation purposes; and City desires to lease two tenant spaces at the Tustin Sports Park property for the purpose of operating two concessions, including a food/beverage concession and tennis concession; and City desires to lease portions of the Sports Park site for such purposes in accordance with the terms and conditions set forth in this lease. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions set forth herein hereinafter contained, the parties hereto agree as follows: 1.0 DEMISED PREMISES 1.1 City leases to Lessee for its management and operation certain real property improvements which consists of a concession lease space. Such structures, buildings and/or improvements shall be surrendered to the City with the remainder of the demised premises upon termination of this agreement. 1.2 The demised premises, as shown on Exhibit A, shall be used only and exclusively for concession operations and such other purposes as are related thereto provided express approval therefore is granted by the City Manager, or his designee and for no other purpose whatsoever. 1.3 Lessee acknowledges personal inspection of the proposed park and concession improvements under construction and the surrounding area and evaluation of the extent to which the physical condition thereof will affect the operation of the concession. Lessee accepts the demised premises in their proposed physical condition as shown on construction plans and agrees to make no demands upon the City for any improvements or alteration thereof. 1 1.4 Lessee shall construct upon the demised premises the required capital improvements in accordance with the provisions set forth in Section 7 hereinafter and the attached Exhibit A. Said Project and any changes thereto shall be subject to the prior approval of the City Manage~-subsequent to approval by the City. All such construction shall i~e at Lesseets sole expenge. 1.4.01 Any other improvements, additions, alterations or changes to the demised premises shall be subject to: prior approval by the City Manager; securing of applicable permits; and compliance with such terms and conditions as may be imposed thereon by the City Manager. 1.5 I~.ssee hereby acknowledges the title of City, and/or any other public agencies having jurisdiction thereover, in and to the demised premises and the improvements located thereon, and covenants and agrees never to assail, contest or resist said title. 1.6 Ownership of all capital improvements constructed by Lessee upon the demised premises and all alteration, additions or betterments thereto, shall immediately vest and be vested in City at all times during and after the term hereof, without compensation being paid thereoL Such structures, buildings and/or improvements shall be surrendered to the City with the remainder of the demised premises upon termination of this Agreement. 2.0 TERM 2.1 The term of this agreement shall be for a period of_ commencing on the first day of the calendar month succeeding a sixty (60) days notice to proceed being issued to the Lessee. 2.2 In the event Lessee bolds over beyond the term herein provided with the consent express or implied of City, such holding shall be from month to month only, subject to the condition of this Agreement; shall not be renewal thereof, and shall be at the monthly compensation provided herein. 2.3 Lessee may apply for an extension of the term of this agreement for up to two further successive terms of (collectively the options terms), each year's; provided that prior to the expiration date of the term, the City receives a written request therefore, signed by lessee, no later than ,sixty (60) days before the expiration date of the term. City's City Council shall have exclusive discretion to determine whether to grant or deny tessee's application. City shall have the right to deny/approve the grant of an extension of this agreement (and/or) to renegotiate the terms of this agreement, including buI not limited to basic service obligations, minimum concession payments, and required capital improvements. Lessee's option to extend this agreement shall also be conditional on all of the following: 1. Lessee is in good faith compliance with terms of this Agreement; The Agreement has not been canceled by City prior to the expiration of the term of this Agreement; 3. Lessee has not been found by City to be in default due to insolvency of Lessee; 4. Lessee has not been found to have abandoned, vacated or discontinued operations for a period in excess of hours; 5. Lessee has received satisfact~)ry performance evaluations from City. The acceptance of the City of any monies paid to City by Tenant as Percentage Rent, as shown by any statement furnished by Lessee shall not be construed as an admission of the accuracy of said statement, or if the sufficiency of the amount of said percentage rent payment, but City shall be entitled to review the adequecy of such payment as herin above set forth. 3.0 RENT 3.1 From and after the Lessee Commencement date, Lessee shall pay to City a minimum annual rent for the food and beverage concession (and/or tennis concession) of $ One twelfth (1/12th) of the minimum annual rent shall be payable monthly in advance on the first day of each month of the term. From and after the expiration of the full year of the Term, City will, every year, on the anniversary of lessee Commencement Date, adjust the Minimum Annual Rent by contract, measured by the base rent times the lesser of (a) the increase in the consumer price index for All Urban Consumers, All Items, base year 1982-1984 = 100, for the Los Angeles/Anaheim/Riverside geographical area as compiled by the United States Department of Labor for the immediately preceding year, or (b) four percent (4%). 3.2 Pementage Rent. In addition to the minimum Annual Rent, lessee shall pay percentage rent equal to__ percent (__%) of Gross Sales at each concession on gross sales to the extent that gross sales exceed the Minimum Annual Rent ($__). Said Percentage Rent shall become due and payable on the twenty- fifth (25th) day of the month, immediately following the month during which gross sales at either concession exceeded and thereafter shall be paid monthly on all additional gross sales made during the remainder of the Lease year. 3.3 Gross Sales. (a) The term "Gross Sales" as used herein shall mean: (1) The entire amount of the actual sales price, whether wholesale or retail, and whether wholly or partly for cash or on credit or in exchange for any other product, commodity, service, commercial paper or forbearance, of all sales of merchandise and all charges made by Tenant and its employees or others acting on its behalf for the rendition of services of any kind whatsoever, made from or upon the Premises. (2) All other receipts of all business conducted in, at or from the Premises, including all deposits not refunded to purchasers, proceeds, receipts or any revenue derived whatsoever 3 from the use of Premises (i.e. rental, repair or cleaning of tennis equipment, tennis reservation fees, tournament fees, fees for lessons, etc.). (3) Orders taken in or from the Premises although said orders may be filled elsewhere, and sales by any sublenant in or from the Premises, and all without credit to Tenant for uncollected or uncollectible credit accounts. (4) Gross receipts of all coin-operated devices which may be placed in the Premises by Tenant or under any rent concession, percentage or other arrangement including, without limitation, such devices as pinball machines, vending machines, video games and similar devices (but excluding revenue from telephones that are collected by a public and/or private utility), except that nothing herein shall be construed as City's consent to the use of same in the Premises; and (5) All other revenues or receipts generated by or arising from the use of the Premises. Co) Exclusions from Gross Sales. Notwithstanding anything to the contrary contained herein, Gross Sales shall not include, or if included there shall be deducted (but only to the extent that they have been included), the following: (1) Sales and use taxes, so-called luxury taxes, consumers' excise taxes, gross receipts taxes, and other similar taxes now or in the future imposed on the sale of merchandise or services, but only if such taxes are added to the selling price and collected from customers. (2) The transfer or exchange of merchandise between the stores or businesses of Tenant, if any, where such transfers or exchanges of memhandise are made solely for the convenient operation of a business owned and operated by Tenant and not for the purpose of consummating a prior sale made in, to or from the Premises or for the purpose of depriving City of the benefit of a sale which otherwise would be made in, at or from the Premises. (3) The amount of returns to shippers or manufacturers. (4) The amount of any cash or credit refund made upon any sale where the merchandise sold or some part thereof is thereafter returned by the purchaser. Each sale upon installment or credit shall be treated as a sale for the full price in the month during which such sale shall be made, irrespective of the time when Tenant shall receive payment (whether in full or partial) from its customers. (5) are not stock in trade. Sales of trade fixtures or personal property to be replaced by Tenant which (6) Sums and credits received in the settlement of claims for loss of or damage to merchandise. (7) Girl certificates, or similar vouchers, until such time as they shall have been converted into a sale by redemption. (8) Meals provided for officers or employees without charge. (9) Meals, goods or products provided for promotional or publicity purposes without charge. (10) Cash refunds made to customers in the ordinary course of business. (11) Value added taxes ("VAT") or other taxes added to the selling price of products and other similar taxes now or hereafter imposed upon the sale of merchandise or services, whether such taxes are added to the selling price or included therein. (12) Discounted sales to employees of Tenant, not to exceed 2% of Gross Sales. (c) Statements of Gross Sales. Tenant shall furnish to City statements of Tenant's Gross Sales within twenty (20) days after the end of each Percentage Rent Period. Each statement shall be signed and certified to be correct by an officer or employee of Tenant. 3.4 Payment shall be payable at the office of the City at 300 Centennial Way, Tustin, CA or at such other place or places City may , from time to time, designate by written notice to Lessee or before the fifteenth day of each month following initiation of the term of this agreement. 3.5 Rent and other sums due City under this Lease shall be due when specified in this Lease and shall bear a late payment charge of two pement (2%) per month after the due date in which payment is due. Any returned checks will be assessed the maximum fee for returned checks permitted by State Lax,,, to cover bank charges. In addition, the late payment charge shall be added unless the replacement payment is made within the designated grace period. 4.0 ACCOUNTING RECORDS 4.1 All sales shall be recorded by means of cash registers which publicly display the amount of each sale and automatically issue a customer's pre-numbered receipt or verify the amount recorded on a slip. Said cash register shall in all cases have locked-in sales totals and transactions counters which are constantly accumulating and which cannot, in either case, be reset, and in addition thereto, a tape located within the register on which transaction numbers and sales details are imprinted. Beginning and ending cash register readings shall be made a matter of daily record. In the event of a technical or electrical failure of the cash register, Lessee shall record by hand all collections, and issue a sequentially pre-numbered customer's receipt in like manner. 4.2 Lessee shall be required to maintain a method of accounting, to the satisfaction of the CITY, which correctly and accurately reflects the gross receipts and disbursements of capital improvements and maintenance costs of the Lessee in connection with each type of authorized operations (food and beverage concession and tennis concession). The method of accounting, including bank accounts established for said operations, shall be separate from the accounting system used for any other 6 business operated by Lessee or for the recording Lessees personal financial affairs. Such method shall include the keeping of the following documents: a. Regular books of accounting such as general ledgers. Journals including any supporting and underlying documents such as vouchers, checks, tickets, bank statements, etc. State and Federal income tax returns and California sales and use returns and checks and other documents providing payment of sums shown. Cash register tapes (daily tapes may be separate but shall be retained so that from day to day the sales can be identified). Any other accounting records that the Finance Director or City Manager deems necessary for proper reporting of receipts. 4.3 All documents, books and accounting records shall be open for inspection and reinspection at any reasonable time during the term of this Agreement and for four (4) years thereafter. In addition, the City may from time to time conduct an audit and reaudit of the books and business so that accuracy of the above records can be confirmed. All information obtained in connection with the City's inspection of records or audit shall be treated as confidential information and exempt from public disclosure thereof. Lessee shall cooperate with City in making the inspection. 4.4 In the event that an audit or review conducted by the City finds that due to Lessee's non- compliance with its obligation to report gross receipts in connection with its operations authorized herein, an actual loss and/or projected loss of revenue to City can be determined, the City, at its option shall: (t) bill Lessee for said losses, said amount to be paid to City within thirty (30) days following billing therefore unless otherwise extended by the City Manager, and/or (2) use the Security Deposit as provided for hereht; and/or (3) assess liquidated damages. The parties agree that it will be impracticable or extremely difficult to fix the extent of actual damages resulting from the failure of the Lessee to correctly report gross receipts; and a projected loss of revenue due to the City. The parties hereby agree that under the current circumstances a reasonable estimate of such damages is $500.00 per day for each day of the loss period as determined by City, and that Lessee shall be liable to City for liquidated damages in said amount. 4.4.1 Should the City find that the additional rental payment due to City exceeds two percent (2%) of the total 'amount which should have been paid as determined by such review or audit and observation, and there being no reasonable basis for the failure to report and pay thereon, Lessee shall also pay the cost of the audit as determined by City and pay any penalty heretofore provided for the delinquent payments. 4.5 Lessee shall furnish the City with a monthly gross receipts report showing the amount payable therefrom to the City. Such a report shall accompany each monthly payment required to be 7 made as provided herein. The monthly reporting period shall be by calendar month, rather than monthly anniversary date of the effective date of this Agreement. In addition thereto, Lessee shall furnish the City with monthly profit and loss statements and an annual profit and loss statement and a balance sheet prepared by a person and in a form acceptable to said City. The monthly profit and loss statements shall be submitted with the monthly rental payment. The annual financial statement shall be submitted with sixty (60) days of the close of an Agreement year. Said closing date shall be determined by reference to the date for commencement of the term herein provided. 5.13 BUSINESS PURPOSES AND BASIC SERVICE OBLIGATIONS 5.1 Food and Beverage Concession Operations A. Business Purposes The premises are to be used by Lessee for the operation of a food and beverages concession area and associated retail operations all in substantial accordance with the Lessee's Proposal to the City for operation of the premises. B. Lessee's Staff Lessee shall file with the City a certificate for each member of its food and beverage staff showing that within the last two (2) years such. person has been examined and has been found to be free of communicable tuberculosis. "Certificate" means a document signed by the examining physician and surgeon who is licensed under Chapter 5 (commencing with Section 2000), Division 2 of the California Business and Professions Code or a note from a public health agency, or unit of the Tuberculosis Association, which indicates free from active tuberculosis. Lessee shall be responsible for hiring the necessary personnel to conduct operations. Proposer shall comply with all federal, state and local laws relating to minimum wage, social security, civil rights, ADA, unemployment compensation and workers' compensation. Proposer shall require all employees to observe all applicable city roles and regulations and to exercise courtesy and consideration in their relations with the public. C. Days and Hours of Operation Lessee shall open the food concession for business on and on such additional days as the City deems necessary to serve the public demand. Lessee shall keep the COncession facility open during the required days of operation between the hours of a.m. and __ p.m. Lessee shall submit for City's approval, a schedule setting forth hours of operation for the business. Any curtailment or decrease of this service is subject to the prior written approval of the City. The above days and hours of operation shall be complied with unless advance written authorization to deviate from this schedule has been obtained from the City Manager. D. Food and Beverage Products Lessee shall provide and maintain the necessary food and beverage products required to satisfy.the public demand therefor. All such produ~:ts sold or kept'for sale by Lessee shall be first class in quality, wholesome and pure and shall conform to the Federal, State and County and City food laws, ordinances and regulations in all respects. No adulterated, misbranded or impure articles shall be sold or kept for sale by Lessee and all food and beverage products kept on hand by Lessee shall be stored and handled with due regard for sanitation. In the event that Lessee's food and beverage products are deemed by City Manager to be less that first class in quality, said officer shall have the right to order the improvement of the quality of any such kept or offered for sale. 5.2 Tennis Concession Operations A. Business Purposes The premises are to be used by the Lessee for the operation of a tennis concession in substantial accordance with the Lessee's proposal to lhe City for operation of the premises. Lessee is hereby authorized and required to sell, rent, and/or repair tennis equipment; sell related tennis clothing and supplies; provide instructional services in the playing of tennis; and operate court rentals and reservations. Said services are to also include, but not be limited to, collecting reservation fees, collecting tennis tournament fees, recording reservations from the telephone and from patrons in person and making a record of said reservations; receiving requests from groups for tournaments, book tournaments and collect tournament fees, issue a cash receipt for all tennis reservation fees. B. Merchandise Lessee shall provide and maintain such inventory of tennis merchandise as is deemed necessary by City to adequately meet the public demand thereof. The City shall have the right to prohibit the sale or rental of any item of merchandise on funding(s) that the item(s) is of such inferior quality as to not be in the public interest to be offered for sale, or that such item(s) is not necessary for proper service to the public. C. Tennis Lessons Tennis lessons shall be taught only by qualified instructors where qualifications have been approved in writing by City. Lessons shall be made available at competitive rates as determined by the lessee and approved in writing by the City Manager. D. Days and Hours of Operation Lessee shall keep the tennis pro shop open Monday through Thursday from a.m. to p.m. and on Fridays, Saturdays, and Sundays from a.m. to p.m. Any change in the days and hours for operation heretofore prescribed shall be subject to approval by the City. Hours of operation must be posted at the Sports Park. Tennis court lighting must be off 9 at 10:00 p.m. The tennis concession operator shall have the exclusive use of four (4) courts. A minimum number of two (2) courts shall be available for walk-on open play at no cost. During the times the courts shall be available to the public free of charge. Such courts will be available for one hour or two sets. The tennis concession operator may request exclusive use of all courts. Such requests must be made in writing to the City at least thirty (30) days prior to the use. Such request must include the times and dates of the use. E. Special Equipment The tennis concession pro shop shall have available a first-aid kit and blanket. 6.0 MAINTENANCE 6.1 Building, Equipment and Grounds Maintenance A. Lessee shall, at its cost and expense during the term of this lease, keep and maintain the demised premises and all improvements, fixtures, trade fixtures, equipment and utility systems which may now or hereafter exist thereon, in good, operable, useable and sanitary order and repair and in a good, safe and first-class condition throughout the term of this Lease, providing for such repairs, replacements, rebuilding and restoration as may be required by the City to comply with the requir6ments hereof. All such repairs and/or any modifications or additions to the facilities shall have the approval of the City prior to their implementation. B. Should Lessee fail, after ten (10) days notice from City of the need thereof, to perform its obligations required hereunder, City in addition to all other available remedies may, but shall not be obligated to; exercise its Right-of-Entry as provided hereinafter in Section , enter upon the premises and perform Lessee's said failed obligations, using any equipment or materials on the premises suitable for such purposes. Lessee shall forthwith on demand reimburse City for its costs so incurred including direct and indirect overhead costs as determined by the City. C. In regard to the level of maintenance, all work shall be performed in accordance with the highest industry-wide maintenance standards at established frequencies so as to maintain the aesthetic level and proper condition of the concession facility. D. Regularly scheduled inspections of the premises and of Lessee's operations authorized herein shall be made by the City. The written report of such inspections shall be recorded, retained for reference, and forwarded to Lessee upon request. E. In regard to emergency services, the Lessee will provide the City with the names and telephone numbers of at least two (2) qualified persons who can be called by City representatives when emergency maintenance conditions occur during hours when the Lessee's normal work force is not present. The City shall call for such assistance only in the event ora genuine and substantial emergency. F. The tennis concession lessee is required to provide maintenance services of tennis courts, including but not limited to repair and maintenance of tennis court lighting, weekly washing of the courts, and providing,necessary maintenance of any appurtenant structures and equipment. G. The Lessee at its sole cost and expense shall furnish all nece.~sary equipment, supplies and material of good quality and in sufficient number to fulfill the requirements of this Agreement ant to accomplish an acceptable and professional level of maintenance. 6.2 Operation of Premises. Lessee shall operate and manage the Premises in a first-class manner, comparable to other first-class businesses providing similar facilities. 7.0 OPERATING RESPONSIBILITIES 7.1 Compliance with Laws Lessee shall conform to and abide by all City and county ordinances, and all state and federal laws and regulations, insofar as the same or any of them are applicable; and where permits and/or licenses are required for the food and beverage and/or tennis operation hereunder and/or any construction authorized herein, the same must be first obtained from the regulatory agency having jurisdiction thereover. 7.2 Compliance with Rules and ReGulations Lessee shall conform to and abide by ail rules and regulations of the City Council and the City Manager insofar as the same or any of them are applicable. 7.3 Disorderly Persons Lessee shall exercise every reasonable effort to allow any loud, boisterous or disorderly persons to loiter about the demised premises. 7.4 Illegal Activities Lessee shall not knowingly permit any illegal activities to be conducted upon the demised premises. 7.5 SJo~ns Lessee shall not post signs upon the demised premises or improvements thereon, unless prior written approval therefore is obtained from the Community Development Director. 7.6 Lessee's Staff and Employment Practice 11 Lessee shall maintain an adequate and proper staff. The City may at any time give Lessee written notice to the effect that the conduct or action of a designated employee of Lessee is, in the reasonable belief of the City, detrimental to the interest of the public patronizing the~ premises. Following City's written notice therefor Lessee 'shall, at City's discretion: (1) terminate such employee's work assignment, at the demised premises or (2) Lessee shall meet with representatives of the City to consider the appropriate course of action with respect to such matter and Lessee shall take reasonable measures under the circumstances to assure the City that the conduct and activities of Lessee's employee will not be detrimental to the interest of the public patronizing the premises. A. Lessee shall establish an identification system for personnel assigned to the concession facility which clearly indicates to patrons the name of the person(s) on duty. The identification system shall be furnished at the Lessee's expense and may include appropriate attire, name badges and/or name plates as specified by the City. B. Lessee warrants that it fully complies with all laws regarding employment of aliens and others, and that all its employment of aliens and others,and that all its employees performing services hereunder meet the citizenship or alien status requirements contained in federal and state statutes and regulations including, but not limited to, the Immigration Reform and Control Act of 1986 (P.L. 99- 603). Lessee shall obtain, from all covered employees performing services hereunder, all verification and other documentation of employment eligib ty status required by federal statutes and regulations as they currently exist and as they may be hereafter amended. Lessee shall retain such documentation for all covered employees for the period prescribed by law. Lessee shall indemnify, defend, and hold harmless, the City, its officers and employees from employer sanctions and any other liability which may be assessed against Lessee or City or both in connection with any alleged violation of federal statutes or regulations pertaining to the eligibility for employment of persons performing services under this Agreement. 7.7 Utilities A. Lessee shall make all arrangements for and pay for all applicable utilities furnished to or used on the premises including without limitation; gas, electricity, water, refuse removal, telephone service, Cable TV, etc. that City shall be responsible for payment of utility billings associated with tennis lighting. In addition, upon expiration or earlier termination of the preexisting City concession agreements, Lessee shall provide for the transfer of all applicable utility accounts from concessionaire to Lessee and thereafter shall pa3, for said utilities. B. Lessee waives any and all claims against City for compensation for loss or damage caused by a defect, deficiency or impairment of any utilities system, water system, water supply system, drainage system, waste system, heating or gas system, electrical apparatus or wires serving the demised premises. 7.8 Sanitation Lessee shall keep the premises free and clear of rubbish and litter and shall deposit rubbish and litter in containers designated by City. Trash containers shall be kept in an approved enclosed area. City shall charge Lessee monthly for rubbish removal, at rates no greater than .the standard rate charged other commercial users for City rubbish removal services. No offensive matter or refuse or substance constituting an unnecessary, unreasonable, or unlawful fire hazard, or material detrimental to the public health shall be permitted to remain on the premises and Lessee shall prevent any accumulation thereof from occurring. 7.9 Security Devices Lessee may provide any legal devices, mechanisms or equipment designed for the purpose of protecting the premises from theft, burglary or vandalism, provided written approval for installation thereof is first obtained from the City. All purchases and installation thereof shall be at Lessee's expense. During the last thirty (30) days preceding the termination of this Agreement, Lessee shall remove same from the premises, other than for those items of personality which have been furnished by City or have been so affixed that their removal therefrom cannot be accomplished without damage to the realty as determined by the City. 7.10 Prices Lessee shall at all iimes maintain a complete list or schedule of the prices charged for all goods and services, or combinations thereof, supplied to the public on or from the demised premises. Said prices shall be fair and reasonable based upon the following considerations: that said operation is intended to serve the needs of the public for the goods and/or services supplied at a fair and reasonable cost; comparability with prices charged for similar goods and/or services supplied in the Orange County area; and reasonableness of profit margin in view of the cost of providing same in compliance with the obligations assumed in this Agreement. In the event the City notifies Lessee that the prices being charged are not fair and reasonable, Lessee shall have the right to confer with the City and justify said prices. Following reasonable conference and consultation thereon, Lessee shall make such price adjustments as may be ordered by the City. Lessee may appeal the determination of the City to the City Council, whose decision thereon shall be final and conclusive. However, Lessee shall comply with the ordered price adjustment pending the appeal and final ruling thereon by the City Council. 7.11 Safety Lessee shall immediately correct any unsafe condition of the premises, as well as any unsafe practices occurring thereon. Lessee shall obtain emergency medical care for any employee who is in need thereof, because of illness, or injury occurring on the premises. Lessee shall cooperate fully with City in the investigation of any injury or death occurring on the premises, including a prompt report thereof to the City Manager. 7.12 Quality of Goods and Services 13 Services to the public, with goods and merchandise of the best quality and at reasonable charges, is of prime concern to City and is considered a pan of the Consideration for this Agreement. Therefore, Lessee agrees to operate and manage, during the entire term of this Agreement, the facilities in a .first-class manner, and comparable to other similar facilities and services. Where such faciliti'es are provided, Lessee shall furnish and dispense foods and beverages of the best quality and shall maintain a high standard of service at least equal to that of other food/beverage snack bar establishments in City and/or adjacent communities and to those prevailing in such areas for similar products and services, and without discrimination. Lessee, following receipt of written notification therefore, shall immediately withdraw or remove from sale any goods or services which may be found objectionable to the City based on findings that the provision of such goods or services are harmful to the public welfare. 7.13 .Reporting The Lessee or his representative shall meet with the City Manager or his representative at such other times as may be required by the City to review Lessee's performance under this Agreement and to discuss any problems or matters as determined by the City. 7.14 Trade Fixtures Lessee at its own expense shall provide and install all appliances, furniture, fixtures, equipment, door locks and padlocks or personal property that are required for the operation of the demised premises. During the last thirty (30) days preceding the termination of this Agreement, Lessee shall remove same from the premises, other than for those items which have been affixed with their removal therefrom cannot be accomplished without damage to the realty. Should Lessee fail to so remove said appliances, furniture, fixtures, equipment, door locks and padlocks within said thirty (30) days period, Lessee shall lose all right, title and interest in and thereto, and City may elect to keep same upon the premises or to sell, remove or demolish same. Lessee shall reimburse City for any cost as determined by the City Manager incurred in excess of any consideration received from the sale, removal or demolition thereof. 7.15 Habitation The premises shall not be used for human habitation. 6.2 Nuisances and annoyances Lessee shall not use or permit the use of the Premises in any manner which creates a nuisance or measurable annoyance including, without limitation, live, recorded or broadcast entertainment or the use of loudspeakers or sound or light apparatus, to persons outside the Premises, other than as may be required by law or necessary or advisable for safety purposes and other than a customer paging system. 8.13 R~EOUIRED CAPITAL IMPROVEMENT PROGRAM 8.1 A Capital Improvement Program shall be prepared by Lessee and approved by the City which shall indicate the de~ription of the improvements proposed by Lessee in order to operate said concession, the estimated improvement costs, and the projected time frame for commencement and completion of the improvement projeci. 8.2 City and lessee may agree from time to time that various additional capital improvement(s) mutually agreed upon, shall be completed as necessary to improve and/or ensure the useability of the premises. 8.3 Prior to commencement of construction, Lessee shall obtain City's written approval of all plans, specifications and construction cost estimates by Lessee for the improvements to be constructed upon the demised premises. No modification of said plans, specifications, or improvements, shall be made by Lessee without approval thereof by the City. Lessee agrees that City may have on the site at any time during the construction improvement period an inspector who shall have the right of access to the premises and the construction work. 8.4 The parties agree that any delay in the construction due to fire, earthquake, war, labor dispute or other events beyond the control of Lessee shall extend the time in which said construction must be completed by the length of time of such delay. 8.5 lessee shall construct, ~erform, complete and maintain ali construction and installations covered by this Agreement in a good and workmanlike manner and with high quality materials, and shall furnish all tools, equipment, labor and material necessary to perform and to complete same. Upon completion of the improvements, Lessee shall furnish the City with one (1) complete set of as-built construction drawings on mylar or its equivalent (all circuit breakers, mechanical equipment, switches, plumbing and fire sprinkler section and main values shall be plainly labeled and a master index shall be provided); operating manuals for building equipment and systems; and copies of all written warranties. Upon termination of this Agreement whether by expiration of term or cancellation, Lessee shall assign to City all express warranties furnished by other persons in connection with the provision of labor and/or material to the works of improvement covered by this Agreement. Upon review by and consultation with City's Finance Director or City Attorney, Lessee shall provide such insurance coverage as City reasonably deem necessary for the contemplated construction project. 8.6 It is understood that the construction and/or improvements required herein may, at the discretion of lessee be constructed in phases, each phase being separated from the other by a period of time to be mutually agreed upon by Lessee and the City Manager. In no event shall the phasing of the construction required herein extend the completion thereof beyond the date heretofore provided subject to the provisions of paragraph ' 8~1. Should the required construction be phased as herein provided, lessee shall submit the Capital Improvement Program to the City Manager. 9.13 ADVERTISING AND PROMOTIONAL MATERIALS 15 Lessee shall not promulgate nor caused to be distributed any advertising, or promotional materials unless prior approval thereof is obtained from City. Said approval shall not be unreasonably withheld or delayed and shall be deemed to be given if no objection is made within fifteen (15) days following the request for approval. Such materials include, but are not limited to: advertising in newspapers, magazines and trade journals, and radio and/or television commercials. Lessee may, at its own expense, place such signs in or upon the premises as it naa), deem necessary subject to compliance with the Tustin City Sign Code and provided consent by the City as Io the type, design and method of installation is first obtained and proper permits obtained. All signage placed by Lessee on, in or about the premises shall remain the property of the Lessee and shall be removed by Lessee upon termination or expiration of this Lease at Lessee's expense, and any damage caused by such removal shall be repaired at Lessee's expense. 10.0 BONDS 10.1 During any period of construction herein required or otherwise authorized, Lessee shall provide a performance bond in an amount of not less than one hundred percent (100%) of the cost for the construction to be performed as evidenced by construction contracts for alt required work, payable to the City of Tustin and'executed by a corporate surety authorized, to conduct business as a surety in the State of California and acceptable to the Risk Manager or City Attorney. The condition of the bond shall be such that if Lessee shall complete the required construction specified herein in accordance with approved plans and specifications and receive a permanent certificate of occupancy for the building, then surety shall no longer be bound thereon. Said bond shall be maintained in full force and effect by Lessee until said works of improvement have been accepted by the City. 10.2 During any period of construction herein required or otherwise authorized, Lessee shall provide a payment bond in an amount of not less than one hundred percent (100%) of the costs for the construction to be performed as evidenced by construction contracts for all required work, payable to the City of Tustin and executed by a ;corporate surety authorized to conduct business as a surety in the State of California and acceptable to the Risk Manager or City Attorney. The payment bond shall also inure to the benefit of all claimants, as said term is presently defined by Section 3085 of the California Civil Code, or ma), hereafter be amended, so as to give such claimants a right of action to recover thereon in any suit brought to foreclose the liens provided for in Title 15 of Part 4, of Division 3 of the California Civil Code or in a separate suit brought upon the bond. The condition of the bond shall be such that if Lessee shall well and truly pay, or cause to be paid, all claims for labor, materials, appliances, teams, or power, or either or all, performed, furnished, or contributed in connection with said works of improvement, then surety shall no longer be bound thereon. Said bond shalI be maintained in full force and effect until all claims for labor,materials, appliances,teams, or power have been paid, as evidenced by release of mechanic's liens by all claimants. 10.3 The City Attorney may accept in lieu of the bonds heretofore described, the performi~nce and payment bonds of corporations duly authorized to issue surety bonds by the State, naming as principal a licensed contractor employed by Lessee to construct works of improvement on the demised premises provided each bond is in an amount equal to the percentage hereinabove provided: names City as an additional obligee; contains terms and conditions substantially similar to the requirements 16 heretofore specified; and is satisfactory to the City Attorney as to sufficiency and liability of sureties named thereon. 1'7 10.4 The City Anorney may als() accept in lieu of the bonds heretofore described, the deposit and assignment to City of investment certificates and shares of a savings and loan institution provided the deposits are in an amount equal to the face value of the bonds and comply with the requirements, 'conditions and procedures prescribed for the assignment of such account~; by Tustin Municipal Code. 10.5 Lessee shall have the option to deposit with the City cash or United States Government secunnes in all respects satisfactory to the City Attorney in lieu of the surety obligations herein required. Said cash or securities shall be deemed deposited with City to secure full and satisfactory performance of the principal obligations heretofore described for which surety is required, and shall be released upon satisfactory performance there of, as evidenced by certification of completion by the City Manager and release of mechanic's liens by all claimants. In lieu thereof, Lessee may deposit the required amount in a bank whose deposits are insured under the Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.) or a savings and loan institution whose deposits are insured under Title 4 of the National Housing Act (12 U.S.C. 1724 .e.t seq.) provided the account is made payable to City on demand and the certificates of deposit is delivered to the City Manager. Lessee shall be entitled to all interest on the deposit and to return of the certificate of deposit upon satisfactory performance as heretofore defined. 1 i.0 DESTRUCTION OF DEMISED PREMISES 11.1 In the event the demised premises shall be totally or partially destroved by a risk covered by the insurance coverage required herein, Lessee shall either restore the premises'or terminate this Agreement. City shall make the loss adjustment with the insurance company insuring the loss and receive payment of the proceeds of insurance. If the destruction is from a risk for which insurance coverage is not required or provided under said policy of insurance, City shall either restore the premises or terminate this Agreement. Said insurance proceeds, if any, shall be held for the benefit of Lessee only in the event of an election by Lessee to restore the premises and shall be disbursed in installments as construction progresses for payment of the costs of restoration upon satisfactory performance of the work required, as evidenced by certification of completion by the City Manager and release of mechanic's liens by all persons furnishing labor and materials thereon. If the proceeds of insurance are insufficient to pay the actual costs of restoration, Lessee shall deposit the amount of the deficiency with the City upon demand therefor by the City Manager, and said sums shall be held for payment of said costs and disbursed in the manner heretofore provided. Any undistributed funds shall be retained by City and credited to the rental reserved over the remaining term of this Agreement. If Lessee elects to restore the demised premises, plans,specifications, and construction cost estimates for the restoration thereof shall be prepared by Lessee and forwarded to City for approval prior to the performance of any work thereon. Said.documents shall be prepared and submitted in a timely manner following adjustments of the loss and receipt of the proceeds of insurance by City. The requi/ed construction shall be performed by Lessee and/or licenses and bondable contractor(s) thereof who shall be required to carry comprehensive liability and property damage insurance, workers' compensation insurance, and standard fire, and extended coverage insurance, with vandalism and malicious mischief endorsements, during the period of construction, in amounts equal to the insurance limits required herein, or as otherwise determined by the City. Said construction shall be commenced promptly following the approval thereof by the City, issuance of permits therefor by governmental agencies having jurisdiction thereover, and posting of the construction site by City with notice of nonresponsibitity, and shall be diligently 18 prosecuted to completion. All work shall be performed in accordance with the approved plans and specifications, unless changes therein are approved in advance thereof by City. Lessee agrees that City may have on the~site at any time during the construction period an inspector who shall have the right to access to the demised premises and the work occurring thereon. Lessee, at the commencement of the construction work, shall notify City in writing of the identity, place of business, and telephone number of responsible person(s) in charge of the construction to be occurring thereon. All construction shall be performed in a good and workmanlike manner. Upon completion of the restoration, Lessee shalI immediately record a notice of completion with the Registrar-Recorder. 11.2 If the premises are restored, this Agreement shall continue in full force and effect, except that the payment to be made by Lessee shall be abated and/or other relief afforded to the extent that the City may determine the damage and/or restoration interferes with the concession operation provided a claim shall be denied if the destruction of the demised premises is found by the City Manager to have been caused by the fault or neglect of Lessee. Lessee agrees to cooperate in the determination of the abatement and/or other relief to be provided by furnishing all information requested relative to the golf course operation, and permitting examination and audit of all accounting records kept in connection with the conduct thereof. 11.3 Lessee shall cooperate in the restoration of the demised premises by vacating the removing therefrom all items of inventor),, trade fixtures, equipment and furnishings for such periods as are required for the restoration thereof. 11.4 The aforesaid provisions for abatement and/or other relief shall also be applicable to a total or partial destruction of the demised premises by the aforementioned causes, except that the relief to be provided shall be based upon the extent the City may determine that the reduction in the public's use of the demised premises due to the partial or total closure thereof has affected the concession operation. 11.5 Lessee agrees to accept the remedy heretofore provided in the event of a destruction of the demised premises and hereby waives any and all additional rights and remedies for relief or compensation that are presently available or ma3, hereafter be made available under the laws and statutes of this State. 12.0 CONSTRUCTION BY CITY AFFECTING DEMISED PREMISES 12.1 In the event City shall construct or cause to be constructed a new facility on the demised premises, this Agreement shall continue in full force and effect, except that the payments to be made by Lessee shall be abated and/or other relief afforded to the extent that the City Manager may determine the construction interferes with the authorized operations, provided a claim therefor is filed with the City within one hundred (100) days of the commencement of construction. LESSEE agrees that the provisions of Section 12 shall not apply to improvements constructed pursuant to the Capital improvements Plan. 19 12.2 Lessee agrees to cooperate with City in the event the construction affects the demised premises by vacating and removing therefrom all items of inventory, trade fixtures, equipment and furnishings for such periods as are required by the construction of the new facilities. Lessee further agrees to cooperate in the determination of the abatement and/or other relief to be provided by furnishing all information requested relative to the operation and permitting examination and audit of all accounting records kept in connection with the conduct thereof. 12.3 Following completion of the new or renovated facility, Lessee shall resume its operations therefrom within thirty (30) days of written notice from the City Manager that the demised premises are now available for occupancy. 12.4 The aforementioned provisions of this section shall also be applicable in the event of performance of work on the demised premises that requires a partial or total closure thereof, except that the abatement and/or other relief to be provided shall be based upon the extent the City may determine that the reduction in the public's use of the demised premises due to the partial or total closure thereof, has affected Lessee's operations. 12.5 Lessee agrees to accept the remedy heretofore, provided in the event of construction upon the demised premises, and hereby waives any and all additional rights and remedies for relief or compensation that are presently available or may be made available hereafter under the laws and statutes of this State. ..13.0 INDEPENDENT CONTRACTOR 13.1 This Agreement is by and between the City of Tustin and Lessee and is not intended and shall not be construed, to create the relationship of agent, servant, employee, or representative of the City by the Lessee. 13.2 Lessee understands and agrees that all persons furnishing services to Lessee pursuant to this Agreement are, for purposes of Workers' Compensation, liability, employees solely of Lessee, and not of City. 13.3 Lessee shall bear the sole responsibility and liability for furnishing workers' compensation benefits to any person for injuries from or connected with services performed on behalf of Lessee pursuant to the Agreement. 13.4 Lessee understands and specifically agrees to inform its employees that Lessee is an ~3c::'~dent contractor to the City. 13.5 Lessee understands and specifically agrees to inform its employees that they are not agents or employees of the City. 14.0 SECURITY DEPOSIT 14.1 Prior to the commencement of the term of this Agreement, Lessee shall pay to the City the Sum of (a sum eh, ual to one (1) mofith's minimum rent). In lieu thereof, Lessee may dePOsit said amount in a bank whose deposits are insured under the Federal DePOsit Insurance Act (12 U.S.C. 1811 et seq.), provided that a certificate of dePOsit is delivered to the City Manager giving City the exclusive right to withdraw an3, or all of said amount during the term of this Agreement. Lessee shall be entitled to any and all interest accruing from said certificate of deposit. A. Said sum shall serve as security for faithful performance of all covenants, promises and conditions assumed by Lessee herein, and may be applied in satisfaction and/or mitigation of damages arising from a breach thereof, including, but not limited to, delinquent payments; correction of maintenance deficiencies; securing required insurance; loss of revenue due to abandonment, vacation or discontinuance of food and beverage operations or tennis concession operations; completion of construction; and payment of mechanic's liens. Application of amounts on deposit in satisfaction and/or mitigation of damages shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this Agreement. B. In the event any or all said amounts is applied in satisfaction and/or mitigation of damages Lessee shall immediately dePOsit such sums as are necessary to restore the security deposit to the full amount required hereunder. C. Said sum shall be returned to Lessee upon termination of this Agreement less any amounts that may be withheld therefrom by City as heretofore provided. 14.2 Additionally, Lessee shall furnish to City a faithful performance bond in the sum of not less than (a sum equal to two (2) month's minimum rent) payable to the City and executed by a corporate suety authorized to conduct business as a surety in the State of California. Such bond shaIl be satisfactory to City in all respects and shall be conditioned upon the faithful performance by Lessee of the terms and conditions of this Agreement and shall be renewed to provide for continuing liability in the above amount notwithstanding any payment or recoveD' thereon. A. The City Attorney may also accept from the Lessee, in lieu of the bond heretofore desoribed, the dePOsit of the required amount in a bank whose dePOsits are insured under the Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.), provided the amount is made payable to City on demand and the certificate of deposit is delivered to the City Manager, or such other instrument such as an irrevocable letter of credit payable only to City and in form and content acceptable to the City Anomey Lessee shall be entitled to all interest on the deposit and return of the certificate of deposit upon satisfactory performance as heretofore defined. 21 .15.0 HOLD HARMLESS AND INDEMNIFICATION 15.1 The Lessee shall indemnify and save harmless the City of Tustin and all officers and employees thereof from all claims, suits, or actions of ever), game, kind, and description, brough! for, or on account of, injuries to or death of an), person including, but not limited to, workmen and the public, or damage to property resulting from the construction of the work or by or in consequence of any negligence regarding the work, use improper materials or equipment in construction of the work, neglect or refusal of the Lessee to faithfully perform the work and all of the Lessee's obligations under the Agreement, or by or on account of any act or omission by the Lessee or his agents or a subcontractor or his agents or a third party during the progress of the work or at any time before its completion and final acceptance, or which might arise in connection with the agreed upon work or is caused by or happening in connection with the progress of said work. 15.2 The defense in indemnification by the Lessee shall include all costs and expenditures including attorney's fees incurred by the City of Tustin or its employees, officers or agents with respect to such claim or suit and the Lessee will, if requested by the City, defend an), litigation arising out of such claims at the sole cost and expense of the Lessee. 16. INSURANCE 16.1 Without limiting Lessee's indemnification of City, Lessee shall provide and maintain at its own expense during the term of this Agreement the following program(s) of insurance covering its operations hereunder. Such insurance shall be provided by insurer(s) satisfactory to City Attorney and evidence of such programs satisfactory to City shall be delivered to the City on or before the effective date of this Agreement. Such evidence shall specifically identify this Ac, reement. Such evidence shall specifically identify this Agreement and shall contain express co~ditions'~hat City is to be given written notice at least thirty (30) days in advance of any modification of termination of an), program of insurance. Such insurance, with the exception of Workers' Compensation insurance, shall be primary to and not contributing with an), other insurance maintained by City, and shall name the City and its officers and employees as additional insureds. The City of Tustin Insurance Endorsement Forms approved by the City must be executed by the applicable insurance underwriters. A. During the periods of time of normal operations and non-construction periods, Lessee shall provide and maintain the following forms and amounts of insurance: 1. Liability Comprehensive General Liability insurance endorsed for Independent Contractor, Premises-Operations, Products/Completed Operations, Contractual, Broad Form Property Damage, and Personal Injury with a combined single limit of not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence. If such insurance is written on a Claims Made Form, such insurance shall be endorsed to provide an extended reporting period of not less than five years followine termination of this Agreement. ~ 2. Worker's Compensation: A program of Workers' Compensation insurance is an amount and form to meet all app}icable requirements of the 12bor Code of the State of California, 22 including Employers' Liability with a 5;150,000 limit covering all persons providing services by or on behalf of Lessee and all risks to such persons under this Agreement. 3. Property Coveraee: (1) Real Property - All Risk insurance, including flood, for the full insurable replacement value with a deductible no greater than five percent (5%) for all risk related coverages, and (2) Personal Property Insurance for the actual cash value against the hazards of fire, theft, burglary, vandalism and malicious mischief. B. During the period(s) of construction as required herein, Lessee shall provide the following forms and amounts of insurance: 1. Builder's All-Risk Insurance: including flood coverage, covering the entire work, against loss or damage until completion and acceptance by the City Manager. Insurance shall be in an amount for the replacement value of the improvements and endorsed for broad form property damage, breach of warranty, explosion, collapse, and underground hazards. Deductibles not exceeding five percent (5%) of the construction cost will be permitted. 2. Comprehensive General Liability: endorsed for all owned and non-owned vehicles with a combined single limit of at least Three Hundred Thousand Dollars ($300,000) per occurrence. 3. Workers' Compensation: a program of Workers' Compensation insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer's Liability with a $150,000 limit covering all persons providing services by or on behalf of Lessee and all risks to such persons under this Agreement. 16.2 Failure on the part of Lessee to procure or maintain required insurance shall constitute a material breach of contract upon which City may immediately terminate this Agreement. 16.3 Conduct of Lessee's operations shall not commence until Lessee has complied with the aforementioned insurance requirements. Further, said operations, whether in whole or in part, shall be subject to suspension with City during any period that Lessee fails to maintain said policies in full force and effect. 16.4 The specified amount of liability insurance required herein may be subject to renegotiation on an annual basis. Should either party request renegotiation with respect to the amount of liability insurance to be provided, the determination thereof shall be established through mutual negotiations between the parties. Lessee shall continue, to. provide pending final renegotiation thereof in the manner heretofore provided. 16.5 No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of Lessee to furnish insurance during the term of this Agreement. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certificate of insurance, with all endorsements required by this Section, showing that such insurance coverage has been renewed or extended shall be filed with the City. .]7.0 TAXES AND ASSESSMENT 17.1 The property interest conveyed herein may be subject to real property taxation and/or assessment thereon, and in the event thereon, and in the event thereof, Lessee shall pay before delinquency all lawful taxes, assessments, fees or charges which at any time may be levied by the State, Count),, City of any other tax assessment-levying body upon the premises and any improvements located thereon. 17.2 Lessee shall also pay all taxes, assessments, fees and charges on goods, merchandise, fixtures, appliances and equipment owned or used therein. 18.0 ASSIGNMENT, SUBLETTING, AND ENCUMBERING 18.1 Prohibition of Assiqnment The Parties acknowledge that City is entering into this Lease in reliance upon the experience and abilities of Lessee and its principals. Consequently, Lessee shall not voluntarily assign or encumber its interest in this Lease or in the Premises, or sublease substantially all or any part of the Premises, or alIow any other person or entity (except Tenant's Authorized Representatives) to occupy or use all or any part of the Premises without the prior written consent of City, which consent shall not be unreasonably withheld. Lessee shall not, without the prior written consent of the City assign, hypothecate, or mortgage this Lease of sublease or license any portion of the premises. Any attempted assignment, hypothecation, mortgage, sublease or license without the consent of the City shall render this Agreement null and void. 18.2 Each and all of the provisions, agreements, terms, covenants and conditions herein contained to be performed by Lessee shall be binding upon any transferee thereof. 18.3 The operations herein authorized shall not be transferable by testamentary disposition or the state laws of intestate succession, as the rights, privileges, and use conferred by this Agreement shall terminate prior to the date for expiration thereof in the event of the death of Lessee occurring within the term herein provided. Additionally, neither this Agreement nor any interest therein shall be transferable in proceedings in attachment or execution against Lessee or in voluntary or involuntary proceedings in bankruptcy or insolvency or receivership taken by or against Lessee, or by any process of law including proceedings under Chapter X and XI of the Bankruptcy Act. 18.4 Shareholders and/or partners of Lessee may transfer, sell, exchange, assign or divest themselves of any interest the), may have therein. However, in the event any such sale, transfer, exchange, assignment or divestment is affected in such a way as to give majority control of Lessee to any persons, corporation, partnership or legal entity other than the majority COntrolling interest therein at the time of execution of this Agreement, approval thereof shall be required. Consent to any such transfer shall only be refused if the City finds that the transferee is lacking in experience and/or financial ability to render and provide services for the operation of the concession(s). 18.5 The prohibition herein contained shall not be applicable with respect to transfers of this Agreement arising from the exercise of a power of sale or judicial foreclosure pursuant to the terms and conditions of a hypothecation.or mortgage previously approved by the City. 18.6 In reference to Section 18.5 hereinbefore, the City's consent with regard to successive transfers of this Agreement arising from the exercise of a power of sale or judicial foreclosure or the assignment of the Agreement in lieu of foreclosure, pursuant to the terms of a deed of trust previously approved by the City, shall not unreasonably withheld. 18.7 In the even: Lessee shall request the prior written consent of City to give, assign,' transfer or grant control of this Agreement, and subsequently City gives written consent to the assignment, a transfer fee equal to one percent (1%) of the gross sales price shall be paid to City. Said sum shall be payable to City in full either within thirty (30) days after said consent is given or prior to the close of any escrow, whichever occurs first. 19.0 NON-DISCRIMINATION AND CIVIL RIGHTS COMPLIANCE 19.1 Lessee hereby certifies and agrees that it will comply with Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, the Americans With Disabilities Act of 1991, Title IX of the Education Amendments of 1972, where applicable, and Title 43, part 17 of the Code of Federal Regulations Subparts A and B, to the end that no persons shall, on the grounds of race, creed, color, national origin, political affiliation, marital status, sex, age or handicap, be subjected to discrimination under the privileges and use granted by this Agreement or under any project, program or activity supported by this Agreement. 19.2 Lessee certifies and agrees that all persons emp}oyed thereby, are and shall be treated equally without regard to or because of race, creed, color, national origin, political affiliation, marital status, sex, age or handicap and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to, the Federal Civil Rights Act of 1964; the Unruh Civil Rights Act; and Cartwright Act; the State Fair Employment Practices Art and Americans with Disabilities Act. 19.3 Lessee certifies and agrees that subcontractors, bidders and vendors thereof are and shall be selected without regard to or because of race, creed, color, national origin, political affiliation, marital status, sex, age or handicap. 19.4 All employment records shall be open for inspection and reinspection at any reasonable time during the term of this Agreement for the purpose of verifying the practice of non-discrimination by Lessee in the areas heretofore described. 19.5 If City finds that any of the above provisions have been violated, the same shall constitute a material breach of contract upon which City may determine to cancel, terminate, or suspend this Agreement. While City reserves the right to determine independently that the non-discrimination provisions of this Agreement have been violated, in addition, a determination by the California Fair 25 Employment and Housing Department or the Federal Equal Employment Opportunity Commission that Lessee has violated State or Federal non-discrimination laws or regulations shall constitute a finding by City that Lessee has violated the non-discrimination provisions of this Agreement. 19.6 Lessee shall include the non-discrimination and compliance provisions in all subcontracts to perform work under the contract. 19.7 The parties agree that in the event Lessee violates the non-discrimination provisions contained herein, City shall, at its option, be entitled to a sum of One Thousand Dollars ($1,000.00) pursuant to California Civil Code Section 1671 as liquidated damages in lieu of canceling, terminating or suspending this Agreement. Lessee further agrees that One Thousand Dollars ($1,000.00) is a reasonable sum under all of the circumstances existing at the time of the execution of this Agreement. 20.0 TERMINATION OF AGREEMENT 20.1 Upon the occurrence of any one or more of the events of default hereinafter described, this agreement shall be subject to termination. As a condition precedent, thereof, the City Manager shall give Lessee ten (10) days notice by registered or certified mail of the date set for termination thereof and the grounds thereof. 20.2 Upon termination City shall have the right to take possession of the premises, including all improvements, equipment, and inventory located thereon, and use same for the purpose of satisfying and/or mitigating all damages arising from a breach of this Agreement. 20.3 Action by City to effectuate a termination and forfeiture of possession shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this Agreement. 21.0 EVENTS OF DEFAULT 21.1 The abandonment, vacation or discontinuance of concession operations on the demised premises for more than __ consecutive hours. 21.2 The failure of Lessee to punctually pay or make the payments herein when due, where the delinquency continues beyond ten (10) days following written notice for payment thereof. 21.3 The failure of Lessee to operate in the manner required by this Agreement, where such failure continues for more than ten (10) days after written notice from the City to correct the condition therein specified. 21.4 The failure to maintain the premises and the improvements constructed thereon in the state of repair required hereunder, and in a clean, sanitary, safe and satisfactory condition, where such failure continues for more than ten (10) days after written notice from the City for correction thereof, provided that where fulfillment of such obligation requires activity over a period of time and Lessee shall have 26 immediately, following receipt of such notice, commenced to perform whatever may be required to cure the particular default and continues such performance diligently, said time limit may be waived in the manner and to the extent allowed by the City. 21.5 The failure of Lessee to keep, perform and observe all other promises, covenants, conditions and agreements set forth in this Agreement, where such failure continues for more than thirty (30) days after written notice from the City for correction thereof, provided that where fulfillment of such obligation requires activity over a period of time and Lessee shall have commenced to perform whatever may be required to cure the particular default within ten (10) days after such notice and continues such performance diligently, said time limit may be waived in the manner and to the extent allowed by the City Manager. 21.6 The filing of a voluntary petition in bankruptcy by Lessee; the adjudication of Lessee as a bankrupt; the appointment of any receive of Lessee's assets; the making of a general assignment for the benefit of creditors; a petition or answer seeking an arrangement for the reorganization of Lessee under any Federal Reorganization Act, including petitions or answers under Chapters X or XI of the Bankruptcy Act; the occurrence of any act which operates to deprive Lessee permanently of the rights, powers and privileges necessary for the proper conduct and operation of the concession; the levy of any attachment or execution which substantially interferes with Lessee's operations under this Agreement and which attachment or execution is not vacated, dismissed, stayed or set aside within a period of sixty (60) days. 21.7 Determination by the City, the State Fair Employment Commission, or the Federal Equal Employment Opportunity Commission of discrimination having been practiced by Lessee in violation of state and/or federal laws thereon. 21.8 Transfer of the majority controlling interest of Lessee to persons other than those who are in control at the time of the execution of this Agreement without approval thereof by the City Manager. 21.9 Lessee's material misrepresentation of fact(s) in its literature, forms and affidavits, which was required to be submitted in response to the Request For Proposals", which was to be submitted in response to the Request For Proposals used in the solicitation process for this Agreement, and which by this reference is incorporated herein as if fully set forth. 21.10 Failure to have submitted schematic plans and/or working drawings for improvements on or before the date(s) designated in this Agreement for submission thereof. 21.11 Failure to have-commenced required construction or any phase thereof on or before the date designated in this Agreement for commencement thereof. 21.12 Failure to have completed construction on or before the date designated in this Agreement for completion thereof. 27 22.0 DEFAULTFORINSOLVENCY 22.1 City, through irs City Manager, may immediately terminate this Agreement for default in the: event of the occurrence of any of the following: a. The City determines that the Lessee is insolvent. Lessee shall be deemed to be insolvent if it has ceased to pay its debts in the ordinary course of business or cannot pay its debts as they become due, whether it has committed an act of bankruptcy or not, and whether insolvent within the meaning of Federal Bankruptcy Law or not. b. The appointment of a Receiver or Trustee for Lessee. c. The execution by Lessee of an assignment for the benefit of creditors. 22.2 The rights and remedies of City provided in this section shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement. 22.3 Any discretion vested in the City Manager pursuant to the provisions of Section 21.01 shall be reasonably exercised. 23.0 WAIVER 23.1 Any waiver by City of any breach of any one or more of the covenants, conditions, terms and agreements herein contained shall not be construed to be a waiver of any subsequent or other breach of the same or of any other covenant, condition, term or agreement herein contained, nor shall failure on the part of City to require exact, full and complete compliance with any of the covenants, conditions, terms or agreements herein contained be construed as in any manner changing the terms of this Agreement or stopping City from enforcing the full provisions thereof. 23.2 No delay, failure, or omission of City to re-enter the premises or to exercise any right, power, privilege or option, arising from any default, nor any subsequent acceptance of payments then or thereafter shall impair any such right, power, privilege or option, or be construed as a waiver of or acquiescence in such default or as a relinquishment of any right. 23.3 No notice to Lessee shall be required to restore or revive "time of the essence" after the waiver by City of any default. 23.4 No option, right, power, remedy or privilege of City shall be construed as being exhausted by the exercise thereof in one or more instances. The rights, powers, options, privileges and remedies given City by this Agreement shall be cumulative. 28 24.0 RIGHT-OF-ENTRY 24.1 Should Lessee be deemed deficient, as determined by the City, in its perform~ance of its obligations required hereunder, City in addition to al'l other available remedies ma3,, but shall not be so obliged, enter upon the premises and correct Lessee's deficiencies using City forces, and equipment and materials on the premises suitable for such purposes, or by employing a separate private contractor. City's costs so incurred, including direct and indirect overhead costs as determined by the City, shall be reimbursed to City by Lessee and/or its sureties within thirty (30) days of demand thereof. 24.2 In the event of an abandonment, vacation or discontinuance of operations for a period in excess of hours, Lessee hereby irrevocably appoints City as an agent for continuing operation of the services granted herein, and in connection therewith authorizes the officers and employees thereof to (1) take possession of the premises, including all improvements, equipment and inventory thereon; and (2) remove any and all persons or property on said premises and place any such property in storage for the account of and at the expense of Lessee; and (3) sublease or license the premises; and (4) after payment of all expense of such subleasing or licensing apply all payments realized therefrom to the satisfaction and/or mitigation of all damages' arising from Lessee's breach of this Agreement. Entry by the officers and employees of City upon the premises for the purpose of exercising the authority conferred hereon as agent of Lessee shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this Agreement. 25.0 SURRENDER 25.1 Upon expiration of the term hereof, or termination thereof as herein provided, Lessee shall peaceably vacate the premises and any and all improvements located thereon and deliver up the same to City in a reasonably good condition, ordinary wear and tear expected, subject to the right of City to demand removal thereof to the extent that paragraph 1.06 may be applicable thereto. 25.2 Upon expiration of the term of this Agreement, Lessee shall execute and deliver to City within thirty (30) days after service of written demand, a good and sufficient quitclaim deed of the Lessee's interest in this Agreement anti the demised premises. Should Lessee fail or refuse to deliver to City a quitclaim deed as aforesaid, a written notice by City reciting the failure of the Lessee to execute and deliver the quitclaim deed, shall after ten (10) days from the date of recordation of the notice be conclusive evidence against Lessee and all persons claiming under Lessee of the termination of this Agreement. 26.0 INTERPRETATION 26.1 This Agreement shall be interpreted according to the rules which govern the interpretation of contracts, as prescribed in Part 2 of Division 3 of the California Civil Code commencing with Section 1635. 26.2 The headings herein contained are for convenience and reference only and are not intended to define or limit the scope of any provision thereof. 29 26.3 The following words as used herein shall be construed to have the following meaning, unless otherwise apparent from the context in which they are used: "City" - The City of Tustin "City Manaeer" - City Manager or his designee. "State" - The State of California "Finance Director" - Finance Director of the City of Tustin. "Beverae:e" - Any liquid prepared by flavoring, heating and/or admixing in advance of consumption thereof, not including alcoholic beverages as defined in the State Alcoholic Beverage Control Act. "Capital Improvement" - Any construction improvement project within the demised premises which allows the provision of concession services or increases the capacity of the concession facilities. "Gross Receipts" - Except as specifically provided by policy statement issued by the City, the term "gross receipts" as used in this lease, is defined to be all money, cash receipts, collected or accrued from the use granted within the demised premises including the rendering or supplying of services and the sale of goods, foods or beverages. 26.3.1 Except as specifically provided below or by policy statement issued by the City Manager, there shall be no deduction from gross receipts for any overhead cost or expense of operations, such as, but without limitation to salaries, wages, costs of goods, interest, debt amortization, credit, collection costs, discount from credit card operations, insurance and taxes. 26.3.2 The City, by policy statement consistent with recognized and accepted business and accounting practices, upon consultation with Lessee, and with the approval of the Finance Director and City Attorney, may further interpret the term "gross receipts" as used in this lease. 26.4 In the event of any conflict in the definition or interpretation of any word, responsibility, service or schedule between the Lease Agreement and the exhibits attached hereto, said conflict or inconsistency shall be resolved by a determination of the City Manager. 27.0 FORCE MAJEURE,FFIME EXTENSIONS 27.1 Except as otherwise specifically provided hereinbefore, and in the event either party hereto shall be delayed or prevented from performance of any act required hereunder by reason of Acts of God, litigation to which Lessee is not a plaintiff, or other cause without fault and beyond control of the party obligated, performance of such act shall be excused for the period of time of the delay as determined by the City Manager. An extension of time for any such cause shall only be for a period of time equivalent to the enforced delay. Lessee's inability to obtain financing shall not be grounds for an extension of time. City Manager shall prepare and execute, and Lessee shall execute the appropriate document acknowledging any extension of time granted pursuant to this section. 28.0 LESSEE'S NON-COMPLIANCE AND LIQUIDATED DAMAGES 28.1 If the City determines that there are deficiencies in Lessee's performance of the concession operations authorized and required herein, the City will provide, as specified in Section 20 (Default) herein, a written notice to the Lessee to correct said deficiencies within specified time frames, except for the repair of leaking valves which must be corrected within twenty-four (24) hours following notification. 28.2 In the event that Lessee fails to correct the deficiencies within the prescribed time frames the City may, at its option; (1) use the Security Deposit as provided for herein, (2) exercise its rights under paragraph 24.1 (Right-of-Entry) herein, and/or (3) assess liquidated damages pursuant to the schedule hereinafter listed. 28.2.1 The parties agree that it will be impracticable or extremely difficult to fix the extent of actual damages resulting from the failure of the Lessee to comply with the obligations for operations herein required, authorized, and specified). The parties hereby agree that under the current circumstances a reasonable estimate of such damage is $100.00 per day for each day of the period of time that the deficiencies exist, and that Lessee shall be liable to City for liquidated damages in said amount. 29.0 NOTICES Any notice required to be given under the terms of this Agreement or an3' law applicable thereto may be: (1) delivered by personal service; or (2) placed in a sealed envelope, with postage paid, addressed to the person on whom it is to be served, return receipt requested, and deposited in a post office, mailbox, sub-post office, substation or mail chute, or other like facility regularly maintained by the United States Postal Service. The address to be used for any notice served by mail upon Lessee shall be addressed as follows: LESSEE: DATE: TO: TITLE: ADDRESS: 31 · or alternate mailing location as may hereafter be designated in writing to the City by Lessee. Any notice served by mail ~pon City shall be addressed to the City,as follows; CITY MANAGER CITY OF TUSTIN 300 CENTENNIAL WAY TUSTIN, CA 92680 COMMUNITY SERVICES CITY OF TUSTIN 300 CENTENNIAL WAY TUSTIN, CA 92680 Service by mail shall be deemed complete upon deposit in the above-mentioned manner. 30.0 SEVERABILITY If any provision of this Agreement is determined to be illegal, invalid, Or unenforceable by a court of competent jurisdiction, the remaining provisions hereof shall not be affected thereby and shall remain in full force and effect. 31.0 CONTRACT ENFORCEMENT AND AMENDMENTS TO THIS AGREEMENT 31.1 The City Manager shall be responsible for the enforcement of this Agreement on behalf of City and shall be assisted therein by those officers and employees of City having duties in connection with the administration thereof. 31.2 Any officers and/or authorized employees of City may enter upon the demised premises at any and all reasonable times for the purpose of determining whether or not Lessee is complying with the terms and conditions hereof, or for any other purpose incidental to the rights of City within the demised premises. 31.3 In the event either party commences legal proceedings for the enforcement of this Agreement, the prevailing party shall be entitled to recover its attorney's fees and costs incurred in the action brought thereon. 31.4 This document may be modified only by further written agreement between the parties. Any such modification shall not be effective unless and until executed by Lessee and in the case of the City, unless otherwise specifically authorized hereinbefore, until executed by the Mayor of the City. 32.0 ENTIRE AGREEMENT 32.1 This document, and the exhibits attached hereto, constitutes the entire agreement between the City and Lessee for operations and use granted herein. All other agreements, promises and representations with respect thereto, other than contained herein, are expressly revoked. 32 IN WITNESS WHEREOF, the City has by action of City Council authorized this Agreement to be executed for and on behalf of the City of Tustin by the City Manager, and the Lessee has caused the same to be executed by its duly authorized officer. "CITY" CITY OF TUSTIN Dated: Thomas R. Saltarelli Mayor ATTEST: Mary Wynn City Clerk APPROVED AS TO FORM: Lois E. Jeffrey City Attorney "LESSEE" Dated: By: Name: Title: 33 ATTACHMENT B Plans of the Concession Building l) ATTACHMENT C Site Plan e~ ATlPACHMENT D Projected Tustin Sports Park Program Participation TUSTIN SPORTS PARK PROGB3%M WEEKLY PARTICIPATION GENERATION METHODOLOGY SOFTBALL ALL SEASONS (Weekdays/leagues) 15 prtc./team X 2 teams/game X 9 games/day X 5 days/wk = 1,350 prtc. FALL/SPRING/SUM]ZER (Weekends/tournaments) 15 prtc./team X 2 teams/game X 33 games/weekend = 990 prt¢. WINTER (Weekends/tournaments) 15 prtc./team X 2 teams/game X 17 games/weekend = 510 prtc. SOCCER FALL (Weekdays) 15 prtc./team X 1 practice/day X 10 teams/day X 5 days/week = 750 prtc. FALL (Saturdays) 20 prtc./team X 2 teams/game X 12 games/day X 1 day/week = 580 prtc. ALL SEASONS (Sundays) 20 prtc./team X 2 teams/game X 2 games/day X 1 day/week = 60 prtc. WINTER/SPRING/SUMNER (Weekdays) 15 prtc./team X 1 practice/day X 2 teams/day X 5 days/week = 150 prtc. WINTER/SPRING/SUPiMER (Saturdays) 20 prtc./team X 2 teams/game X 4 games/day = 160 prtc. TENNIS FALL/WINTER/SPRING (Weekdays) 25 prtc./day X 5 days/week = 125 prtc. FALL/WINTER/SPRING (Weekends) 25 prtc./day X 2 days/week = 50 prt¢. SUMMER (Weekdays) 32 prtc./day X 5 days/week = 32 prtc./day X 2 days/week = 160 prtc. 64 prtc. PICNICS FALL (Weekehds Only) 150 prtc./day X 1 day/week = 150 prtc. WINTER (Weekends Only) 50 prtc./day X 1 day/week = 50 prtc. SPRING (Weekends Only) 100 prtc./day X 1 day/week = 100 prt¢. SUMMER (Weekends Only) 150 parks/day X 2 days/week = S00 prtc. R',J~ :PRTCMET H. TSP