Exhibit 10.11
RECORDING REQUESTED BY COUNTY ENGINEER AND MAIL
TO:
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EXECUTIVE OFFICER
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BOARD OF SUPERVISORS
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[ILLEGIBLE] 383 Hall of
Administration
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500 W. Temple Street
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Los Angeles, California 90012
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CONCESSION AGREEMENT FOR
CONSTRUCTION, MAINTENANCE AND OPERATION OF A PLANNED RECREATIONAL
DEVELOPMENT AT FRANK G. BONELLI REGIONAL COUNTY SWIM
PARK
THIS CONCESSION AGREEMENT, made and
entered into this 8 th day of March, 1983,
BY AND BETWEEN
COUNTY OF LOS ANGELES, a body
corporate and politic, hereinafter referred to as
“County”.
AND
SPECIALTY VILLAGES, a general
partnership, and BRYANT L. MORRIS, General Partner, hereinafter
referred to as “Concessionaire”.
WITNESSETH
:
WHEREAS, County is a lessee in
possession of Frank G. Bonelli Regional County Park pursuant to a
lease with the Los Angeles County-Frank G. Bonelli Regional County
Park Authority; and
WHEREAS, the Board of Supervisors is
authorized by the provisions of Government Code Section 25907 to
lease said lands for concessions and services that are consistent
with public park and recreation purposes; and
WHEREAS, a concession for the
construction and operation of a planned recreational development is
consistent with said purposes; and
WHEREAS, Concessionaire is willing
to exercise the grant of such a concession in accordance with the
terms and conditions prescribed therefor;
NOW, THEREFORE, in consideration of
the mutual promises, covenants and conditions set forth herein, the
parties hereto and each of then do agree as follows:
1.
CONCESSION GRANTED
.
1.01
See Amd 3 p.2
1.02
The concession shall be exclusive
only within the confines of the Frank G. Bonelli Regional County
Swim Park.
2.
CONCESSION PREMISES
.
2.01
See Amd 3 p.2
2.02
The concession premises shall be
used only and exclusively for concession purposes, and such other
purposes as are related thereto provided express approval therefor
is granted by the Director, and for no other purposes
whatsoever.
2.03
Concessionaire acknowledges personal
inspection of the concession premises and the surrounding area and
evaluation of the extent to which the physical condition thereof
will affect the concession. Concessionaire accepts the concession
premises in their present physical condition, and agrees to make no
demands upon County for any improvements or alteration
thereof.
2.04
Concessionaire shall construct the
improvements hereinafter required upon the concession premises. Any
other improvements, additions, alterations, repairs or changes
thereto shall be subject to prior approval thereof by the Director;
securing of applicable permits therefor; and compliance with such
terms and conditions relating thereto, as may be imposed thereon by
the Director. All construction shall be at Concessionaire’s
expense.
2.05
Concessionaire hereby acknowledges
the title of County and/or any other public agencies having
jurisdiction thereover, in and to the concession premises and the
improvements located thereon, and covenants and agrees never to
assail, contest or resist said title.
2.06
Ownership of all structures,
buildings or improvements constructed by Concessionaire upon the
concession premises and all alterations,
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additions or betterments thereto, shall remain
in Concessionaire until termination of this agreement. Upon
termination thereof, whether by expiration of the term,
cancellation, forfeiture or otherwise, ownership thereto shall vest
in County without compensation being paid therefor, and such
structures, buildings and/or improvements shall be surrendered with
the concession premises, unless demand for the removal thereof
shall be given by the Director at least ninety (90) days prior to
the date of termination. Should Concessionaire fail to remove said
structures, buildings and improvements, same may be sold, removed
or demolished, and Concessionaire shall reimburse County for any
cost or expense in connection therewith in excess of any
consideration received by County as a result of said sale, removal
or demolition.
2.5
OPTION.
2.5.01
County grants to Concessionaire this
option to lease the land described in Exhibit B until the third
(3rd) anniversary date of this contract.
2.5.02
Concessionaire may not assign this
option and the rights thereunder without the express written
consent of the Director.
2.5.03
Only if Concessionaire has performed
the acts set forth herein as consideration for the option or is in
the diligent and continuous performance thereof, may be exercise
this option.
2.5.04
If Concessionaire has performed the
acts constituting consideration for the option within the period
therefor, including any extension(s) thereof, as provided in this
agreement, Concessionaire may exercise this option by tender of
written notice of exercise of option. This notice shall
be
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addressed to the Board of Supervisors of County;
and signed by each individual Concessionaire with an acknowledgment
of each signature by a person authorized to attest thereto by
law.
2.5.05
Service of the notice shall be made
in the manner provided by the agreement for notices, except that in
addition to the officer designated for
3a
service of notice on County, copies of the
notice shall also be served upon the Director at 550 South Vermont
Avenue, Los Angeles, California 90020, or such other place as may
hereinafter be designated in writing to Concessionaire by Director,
and upon the County Parks Director, 453 South Vermont Avenue, Los
Angeles, California 90020.
2.5.06
Upon exercise of the option the
Director shall prepare a lease amendment to this lease and
concession agreement, as amended, and submit same for approval and
execution by Concessionaire and the Board of Supervisors of County.
The lease amendment shall convey a leasehold estate in the land
described in Exhibit B as the Phase Two Area for use as a planned
recreational development area [without any development being
prescribed therefor as a condition for continuation of possession
and rights of user granted therein.] The covenants and conditions
related to the required development program for the leasehold
estate conveyed is the land described in Exhibit B as the Phase Two
Planned Recreational Development shall provide for diligent
performance of the construction obligation; commencement of
construction following County’s posting of the site with a
notice of nonresponsibility; County approval of final plans and
specifications, including landscaping; County inspection and access
to the construction; extensions for force majeure and good cause;
warranty of materials and workmanship, performance and payment
bonds, personal surety on security deposit on amounts and form as
required for the development.
2.5.07
If Concessionaire fails to exercise
this option within the period therefor, including any extension(s)
thereof, the option shall automatically terminate without notice to
Concessionaire and all rights of Concessionaire shall immediately
cease.
2.5.08
The consideration for this option
shall be completion of development on the land described in Exhibit
A.
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2.5.09
County grants a license to
Concessionaire to use the land described in Exhibit B for the
option period, including any extension(s) thereof, for the purpose
of conducting thereon such investigations, studies and tests as may
be required for development of the works of improvement to be
constructed thereon.
2.5.10
Concessionaire shall notify the
Director at least forty-eight (48) hours prior to the start of any
investigation of soil conditions by means of soil borings. Test
locations shall be barricaded to prevent public access thereto
during the boring thereof and backfilled following removal of all
soils therefrom.
2.5.11
The stockpiling of excavated
material and the storage of any materials, tests or equipment shall
be subject to the satisfaction of the Director.
2.5.12
Concessionaire shall not interfere
with the public use and enjoyment of the areas of the Frank G.
Bonelli Regional County Park located outside of the licensed
premises.
2.5.13
Optionee shall immediately correct
any unsafe condition and/or unsafe practices arising out of and in
the course of the use of the license granted.
2.5.14
Concessionaire shall save, keep and
hold harmless County and all of its officers, agents and employees
from all damages, suits, costs or expenses in law or equity,
including costs of suit and expenses for legal services that may at
any time arise or be set up by any person, including the agents,
servants and employees of Concessionaire, and/or County, for
personal injury, death and/or property damage arising out of the
use of the licensed premises, when caused by an act or omission on
the part of Concessionaire or the agents, servants, and employees
thereof, that allegedly constitutes:
a. Negligence;
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b. Creation of maintenance of a
dangerous condition of public property;
c. Breach of warranty, express or
implied;
d. Defectiveness of product;
or
e. Intentional infliction of
harm.
2.5.15
In the event of any of the
aforementioned persons recovers a judgment against County or any of
its officers, agents or employees, by reason of any of the
aforementioned acts or omissions, Concessionaire shall indemnify
same in an amount equal to the judgment entered.
3.
TERM.
3.01
See Amd 3 p.2
3.02
See Amd 3 p.2
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4.
PAYMENT .
4.01
See Amd 3 p.3 & Amd 3-A
p.3
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4.02
See Amd 3 p.5
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5.
ACCOUNTING
RECORDS.
5.01
Concessionaire shall be required to
maintain a method of accounting which shall to the satisfaction of
the Auditor-Controller correctly and accurately reflect the gross
receipts and disbursements of Concessionaire in connection with the
concession. The method of accounting, including bank accounts,
established for the concession shall be separate from the
accounting system used for any other business operated by
Concessionaire or for recording Concessionaire’s personal
financial affairs. Such method shall include the keeping of the
following documents:
a.
Regular books of accounting such as
general ledgers.
b.
Journals including any supporting
and underlying documents such as vouchers, checks, tickets, bank
statements, etc.
c.
State and Federal income tax returns
and sales tax returns
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and checks and other documents providing payment
of sums shown which shall be kept in confidence by
County.
d.
Cash register tapes (daily tapes may
be separated but shall be retained so that from day to day the
sales can be identified).
e.
Any other reporting records that the
Auditor-Controller deems necessary for proper reporting of
receipts.
5.02
All sales shall be recorded by means
of cash registers which publicly display the amount of each sale
and automatically issue a customer’s receipt or certify the
amount recorded in a sales slip. Said cash registers shall in all
cases have locked-in sales totals and transaction 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.
5.03
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 twelve
(12) months thereafter. In addition, the Auditor-Controller may
from time to time conduct an audit and reaudit of the books and
business conducted by Concessionaire and observe the operation of
the business so that accuracy of the above records can be
confirmed. If the report of gross sales made by Concessionaire to
the Auditor-Controller should be found to be less than the amount
of gross sales disclosed by such audit and observation,
Concessionaire shall pay the delinquent amount within thirty (30)
days of billing therefor. If the additional amount due exceeds two
percent (2%), and there is no reasonable basis for the failure to
report and pay thereon, Concessionaire shall also pay the cost of
the audit and the penalty heretofore provided for delinquent
payments. All information obtained in connection with the
Auditor-Controller’s inspections of records or audit shall be
treated as confidential information and exempt from public
disclosure thereof.
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5.04
Concessionaire shall furnish the
Auditor-Controller with a monthly gross receipts report showing the
amount payable therefrom to the County. Such a report shall
accompany each monthly payment required to be made as provided
herein. The monthly reporting period shall be by calendar month,
rather than monthly anniversary date of the effective date of the
concession agreement. In addition thereto, Concessionaire shall
furnish the Auditor-Controller with an annual profit and loss
statement and a balance sheet prepared by a person and in a form
acceptable to said officer. The annual financial statements shall
be submitted within 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.
6.
REQUIRED CONSTRUCTION
.
6.01
Concessionaire shall construct a
planned recreational development upon the concession premises in
accordance with the development program therefor that have
heretofore been prepared by Concessionaire and approved by County
and are attached herewith as Exhibit D.
6.02
Concessionaire shall commence
construction of the above described improvements, including
facilities for gas, water, electricity, sewage and telephone
service, following County’s posting of the construction site
with a notice of nonresponsibility, and shall diligently prosecute
and complete name. In no event shall the completion of this
responsibility be extended beyond July 1, 1983.
6.03
No modification of said final plane
and specification or of said improvements, including landscaping,
shall be made by Concessionaire without approval therefor by the
Director.
6.04
Concessionaire agrees that County
may have on the site at any time during the construction period an
inspector who shall have the right of access to the concession
premises and the construction work. Concessionaire shall, at the
commencement of the construction work, notify the Director
in
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writing of the identity, place of business and
telephone number of Concessionaire’s on-the-job
representative. Said representative shall be Concessionaire’s
prime consultant for the inspector of County.
6.05
The parties agree that any delay in
the construction due to fire, earthquake, war, labor dispute or
other events beyond the control of Concessionaire shall extend the
time in which said construction must be completed by the length of
time of such delay.
6.06
Concessionaire shall construct,
perform, complete and maintain all 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 complete the same, and
hereby expressly warrants that all said materials and workmanship
will be free from defects.
6.07
It is understood that the
construction required herein may, at the discretion of
Concessionaire, be constructed in phases, each phase being
separated from the other by a period of time to be determined by
Concessionaire. However, the nature of the construction to be
performed in each phase and the time interval between phases shall
be subject to approval by the Director. In no event shall the
phasing of the construction required herein extend the completion
thereof beyond the date heretofore provided. Should the required
construction be phased as herein provided, diligent prosecution
thereof shall require commencement of each phase on or before the
date selected for commencement thereof.
7.
ADDITIONAL CAPITAL
IMPROVEMENT .
7.01
See Amd 3 p.6
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8.
RENTAL CREDIT
.
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9.
BONDS .
9.01
Concessionaire shall purchase
performance and payment bonds from corporations duly authorized to
issue surety bonds by the State before constructing any works of
improvement upon the concession premises. Each bond shall name
Concessionaire as principal, company as surety, and County as
obliges thereon. The payment bond shall also inure to the benefit
of all claimants, as said term is presently defined by Section 3085
of the State Civil Code, or may hereafter be amended, so as to give
such persons a right of action to recover thereon in any suit
brought to foreclose the liens provided for in Title 13 of Part 4
of Division 3 of said Civil Code or in a separate suit brought upon
the bond. Each bond shall be in a sum equal to ONE HUNDRED PERCENT
(100%) of the costs for construction of the works of improvement to
be located upon the concession premises, as estimated by the
Director. The condition of the performance bond shall be such that
if the principal shall well and truly perform the construction
herein required, pursuant to the approved plans and specifications
therefor, then surety shall no longer be bound thereon. The
condition of the payment bond shall be such that if the principal
shall well and truly pay, or cause to be paid, all claims for
labor, materials, appliances, terms, 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
bonds shall be subject to approval by the Director as to
sufficiency and liability of sureties named thereon. Said bonds
shall be maintained in full force and effect by Concessionaire
until said works of improvement have been completed and claims for
labor and materials have been paid.
9.02
The Director may accept in lieu of
the bonds heretofore described, the performance and payment bonds
of corporations duly authorized to issue surety bonds by the State,
naming as principal a licensed contractor employed by
Concessionaire to construct works of improvement on the
concession
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promises, provided each bond is in an amount
equal to the percentage hereinabove provided for said bonds of the
cost of the construction to be performed by said contractor; names
County as an additional obligee; contains terms and conditions
substantially similar to the requirements heretofore specified; and
is satisfactory as to sufficiency and liability of sureties named
thereon.
9.03
The Director may also accept in lieu
of the bonds heretofore described, the promise of one or more
individuals to pay County in the event of a default of
Concessionaire to well and truly perform the construction, pursuant
to the approved plans and specifications therefor, and to pay
claimants, as herein defined, in the event of a default of
Concessionaire to pay or cause to be paid, all claims for labor,
materials, appliances, terms, or power, or either or all,
performed, furnished or contributed in connection with said works
of improvement, provided corporate surety bonds cannot be obtained;
the surety-ship obligation is in writing; the liability as surety
and/or guarantor of said principal obligation is commensurate with
Concessionaire, becomes absolute upon breach and can be exonerated
only by performance or payment; and the sufficiency of the
individuals to discharge their liability thereon is justified to
the satisfaction of said officer.
9.04
Concessionaire shall have the option
to deposit with the Auditor-Controller cash or United States
Government securities in all respects satisfactory to said officer
in lieu of the surety obligations herein required. Said cash or
securities shall be deemed deposited with County to secure full and
satisfactory performance of the principal obligations heretofore
described for which surety is required, and shall be released upon
satisfactory performance thereof, as evidenced by certification of
completion by the Director and release of mechanic’s liens by
all persons furnishing labor and material thereon.
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10.
OPERATING
RESPONSIBILITIES.
10.01
Compliance with
Law.
Concessionaire shall conform to and
abide by all municipal 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 concession and/or any construction authorized herein, the same
must be first obtained from the regulatory agency having
jurisdiction thereover.
10.02
Compliance with Rules and
Regulations .
Concessionaire shall conform to and
abide by all rules and regulations of the Board of Supervisors, the
Director, and the Director of Parks and Recreation insofar as the
same or any of them are applicable.
10.03
Disorderly Persons
.
Concessionaire agrees to not allow
any loud, boisterous or disorderly persons to loiter about the
concession premises.
10.04
Illegal Activities
.
Concessionaire shall not permit any
illegal activities to be conducted upon the concession
premises.
10.05
See Amd 3 p.10
10.06
Noninterference.
Concessionaire shall not interfere
with the public use of Frank G. Bonelli Regional County
Park.
10.07
See Amd 3 p.10
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10.08
Days and Hours of
Operation . See Amd 3
p.12
17
10.09
Prices .
Concessionaire shall at all times
maintain a complete list or schedule of the prices charged for all
goods or services, or combinations thereof, supplied to the public
on or from the concession premises. Said prices shall be fair and
reasonable based upon the following considerations: that the
concession 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 Los Angeles Metropolitan Area; and reasonableness
of profit margin is view of the cost of providing same in
compliance with the obligations assumed in this agreement. In the
event the Director notifies Concessionaire that prices being
charged are not fair and reasonable, Concessionaire shall have the
right to confer with the Director and justify said prices.
Following reasonable conference and consultation thereon,
Concessionaire shall make such price adjustments as may be ordered
by the Director. Concessionaire may appeal the determination of the
Director to the Board of Supervisors, whose decision thereon shall
be final and conclusive. However, Concessionaire shall comply with
the ordered price adjustment pending the appeal and final ruling
thereon by the Board of Supervisors.
10.10
Removal of Objectionable Goods
and Services .
Concessionaire shall immediately
remove or withdraw from sale any goods or services which may be
found objectionable to the public welfare by the Director following
receipt of written notification therefor.
10.11
Utilities .
Concessionaire shall provide and pay
for any necessary utilities, including water and electricity
consumed by Concessionaire in the construction, maintenance and
operation of the planned recreational development. The telephone
number shall be placed in the name of the concession and shall not
be transferred to any other location. Concessionaire waives any and
all claims against County for compensation for loss or damage
caused by a defect, deficiency
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or impairment of any utility system, water
system, water supply system, drainage system, waste system, heating
or gas system, electrical apparatus or wires serving the concession
premises.
10.12
Sanitation
.
No effective matter or refuse or
substance constituting an unnecessary, unreasonable or unlawful
fire hazard, or material detrimental to the public health, shall be
permitted or remain on the concession premises and within a
distance of fifty (50) feet thereof, and Concessionaire shall
prevent any accumulation thereof from occurring. Concessionaire
shall see that all refuse is collected as often as necessary, and
in no case less than twice a week, and shall pay all charges which
may be made for the removal thereof. Concessionaire shall furnish
all equipment and materials necessary, including trash receptacles
of the size, type and number required by the Director, to maintain
the concession premises and the area within a distance of fifty
(50) feet thereof in a sanitary condition;
10.13
Maintenance
.
Concessionaire shall be responsible
for maintaining the concession premises in good and substantial
repair and condition; and in compliance therewith shall perform all
repairs to or replacement of all improvements and equipment
thereon, including the painting thereof, upon written request
therefor by the Director. In addition to this general requirement
Concessionaire shall perform any and all repairs required for the
maintenance thereof in compliance with all Laws applicable
thereto.
10.14
Security Devices.
Concessionaire may provide any legal
devices, installations, or equipment designed for the purpose of
protecting the concession premises from theft, burglary or
vandalism, provided written approval for installation is
first
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obtained from the Director. All purchases and
installations thereof shall be at Concessionaire’s
expense.
10.15
Safety .
Concessionaire shall immediately
correct any unsafe condition of the concession premises, as well as
any unsafe practices occuring thereon. Concessionaire shall obtain
emergency medical care for any member of the public who is in need
thereof, because of illness or injury occurring on the concession
premises. Concessionaire shall cooperate fully with County in the
investigation of any accidental injury or death occurring on the
concession premises, including a prompt report thereof to the
Director.
10.16
Trade Fixtures
.
Concessionaire shall provide and
install all appliances, furniture, fixtures and equipment that are
required for the concession. During the last thirty (30) days
preceding the termination of this agreement, Concessionaire shall
remove same from the concession premises, other that for those
items of personalty which have been furnished by County or so
affixed that their removal therefrom cannot be accomplished without
damage to the realty. Should Concessionaire fail to so remove said
appliances, furniture, fixtures and equipment within said thirty
(30) day period, Concessionaire shall lose all right, title and
interest in and thereto, and County may elect to keep same upon the
premises or to sell, remove or demolish same. Concessionaire shall
reimburse County for any cost incurred in excess of any
consideration received from the sale, removal or demolition
thereof.
10.17
Merchandise.
Concessionaire shall provide and
maintain the necessary investory of concession merchandise required
to meet the needs of the public therefor. All food and beverages
sold or kept for sale by Concessionaire shall be first-class in
quality, wholesome and pure, and shall conform to the federal,
state and County food laws, ordinances and regulations in all
respects. No adulterated, misbranded or impure articles shall be
sold or kept for sale by Concessionaire,
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and all merchandise kept on hand by
Concessionaire shall be stored and handled with due regard for
sanitation. In the event food is below first class, the Director
shall have the right to order the improvement of the quality of any
food kept or offered for sale.
10.18
See Amd 3 p.12
10.19
Habitation
.
The concession premises shall not be
used for human habitation, other than as approved night watchman or
patrolman, except for concession premises resigned, constructed and
operated for the express purpose of accommodating human
habitation.
11.
DESTRUCTION OF CONCESSION
PREMISES AND/OR FRANK G. BONELLI SWIM PARK
11.01
In the event the concession premises
shall be totally or partially destroyed from a risk covered by the
insurance required herein, Concessionaire shall either restore the
premises or terminate this agreement. If the destruction is from a
risk for which coverage is not required or provided under said
policy of insurance, County and/or Concessionaire shall either
restore the premises or terminate this agreement. County shall make
the loss adjustment with the insurance company insuring the loss
and receive payment of the proceeds of insurance. Said proceeds
shall be held for the benefit of Concessionaire only in the event
of an election by Concessionaire 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
Director and release of mechanic’s liens by all persons
furnishing labor and material thereon. If the proceeds of insurance
are insufficient to pay the actual costs
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of restoration, Concessionaire shall deposit the
amount of the deficiency with the Auditor-Controller upon demand
therefor by the Director, and said sums shall be held for payment
of said costs and disbursed in the manner heretofore provided. Any
undisbursed funds shall be retained by County and credited to the
rental reserved over the remaining term of the agreement to the
extent that any funds remaining at end of term will be reimbursed
to Concessionaire by County. If Concessionaire elects to restore
the concession premises, plans, specifications, and construction
cost estimates for the restoration thereof shall be prepared by
Concessionaire and forwarded to Director for approval prior to the
performance of any work thereon. Said documents shall be prepared
and submitted in a timely manner following adjustment of the loss
and receipt of the proceeds of insurance by County. The required
construction shall be performed by Concessionaire and/or licensed
and bondable contractor(s) thereof who shall be required to carry
public liability and property damage insurance, worker’s
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. Said construction shall be
commenced promptly following the approval thereof by the Director,
issuance of permits therefor by governmental agencies having
jurisdiction thereover, and posting of the construction site by
County with notice of nonresponsibility and shall be diligently
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 Director. Concessionaire agrees
that County may have on the site at any time during the
construction period as inspector who shall have the right of access
to the concession premises and the work occurring thereon.
Concessionaire shall, at the commencement of the construction work
notify Director in writing of the identify, place of business, and
telephone number of responsible person(s) in charge of the
construction to be occurring thereon. All construction shall
be performed
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in a good and workmanlike manner. Upon
completion of the restoration, Concessionaire shall immediately
record a notice of completion with the
Registrar-Recorder.
22a
11.02
If the premises are restored, this
agreement shall continue in full force and effect, except that the
payments to be made by Concessionaire shall be abated and/or other
relief afforded to the extent that the Director may determine
the damage and/or restoration interferes with the concesiion,
provided a claim therefor is filed with the Director within one
hundred (100) days of notice of election to restore the premises.
Any such claim shall be denied, if the destruction of the
concession premises is found by the Director to have been caused by
the gross neglect of Concessionaire. Concessionaire agrees to
cooperate in the determination of the abatement and/or other relief
to be provided by furnishing all information requested relative to
the concession, and permitting examination and audit of all
accounting records kept in connection with the conduct
thereof.
11.03
Concessionaire shall cooperate in
the restoration of the concession premises by vacating and removing
therefrom all items of inventory, trade fixtures, equipment and
furnishings for such periods as are required for the restoration
thereof.
11.04
The aforesaid provisions for
abatement and/or other relief shall also be applicable to a total
or partial destruction of Frank C. Bonelli Swim Park by the
aforementioned causes, except that the relief to be provided shall
be based upon the extent the Director may determine that the
reduction in the public’s use of Frank G. Bonelli Swim Park
due to the partial or total closure thereof has affected the
concession.
11.05
Concessionaire agrees to accept the
remedy heretofore provided in the event of a destruction of the
concession premises and/or Frank G. Bonelli Swim Park and hereby
waives any and all additional rights and remedies for relief or
compensation that are presently available or may hereinafter
be made available under the laws and statutes of this
state.
12.
CONSTRUCTION BY COUNTY AFFECTING
CONCESSION PREMISES AND/OR FRANK G. BONELLI REGIONAL COUNTY
PARK .
12.01
In the event County shall construct
or cause to be constructed a new facility for the concession, this
agreement shall continue in full force
23
and effect, except that the payments to be made
by Concessionaire shall be abated and/or other relief afforded to
the extent that the Director may determine the construction
interferes with the concession, provided a claim therefor is filed
with the Director within one hundred (100) days of commencement of
construction.
12.02
Concessionaire agrees to cooperate
with County in the event the construction affects the concession
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. Concessionaire
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 concession and permitting examination and
audit of all accounting records kept in connection with the conduct
thereof.
12.03
Following completion of the new
facility, Concessionaire shall resume the concession therefrom
within thirty (30) days of notice from the Director that the
concession premises are tenantable.
12.04
The aforementioned provisions of
this section shall also be applicable in the event of
performance of work on Frank C. Bonelli Regional County Park 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 Director may determine that the reduction in
the public’s use of Frank G. Bonelli Regional County Park due
to the partial or total closure thereof, has affected the
concession.
12.05
Concessionaire agrees to accept the
remedy heretofore provided in the event of construction upon the
concession premises and/or Frank G. Bonelli Regional County Park,
and hereby waives any and all additional rights and remedies for
relief or compensation that are presently available or may be
made available hereinafter under the laws and statutes of this
state.
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13.
SECURITY DEPOSIT
.
13.01
Prior to the commencement of this
agreement, Concessionaire shall pay to the Auditor-Controller the
sum of TWENTY THOUSAND-EIGHT HUNDRED THIRTY-THREE DOLLARS AND
33/100 ($20,833.33). In lieu thereof, Concessionaire
may deposit said amount in a commercial bank or savings and
loan association acceptable to the Auditor-Controller, provided
that a certificate of deposit is delivered to said officer giving
County the right to withdraw any or all of said amount during the
term of this agreement. Concessionaire shall be entitled to any and
all interest accruing from said certificate of deposit. In addition
to said sum, Concessionaire shall purchase a performance bond in
the amount of FORTY-ONE THOUSAND SIX HUNDRED SIXTY-SIX DOLLARS and
66/100 ($41,666.66) from a corporation duly authorized to issue
surety bonds by the State prior to the commencement of this
agreement. Said bond shall [ILLEGIBLE] Concessionaire as principal,
company as surety, and County as obligee thereon.
13.02
Said sum and bond shall serve as
security for faithful performance of all covenants, promises and
conditions assumed by Concessionaire 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 concession operations, discrimination; refunding
of deposits for scheduled events which are required to be cancelled
due to abandonment, vacation or discontinuance of concession
operations; completion of construction; and payment of
mechanic’s liens. Application of amounts on deposit and/or
under said bond 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.
13.03
In the event any or all of said sum
and/or bond are applied in satisfaction and/or mitigation of
damages, Concessionaire shall immediately deposit such sums and/or
renew said bond in such amounts as are necessary to restore
the
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security deposit to the full amount required
hereunder.
13.04
Said sum shall be returned to
Concessionaire upon termination of this agreement less any amounts
that may be withheld therefrom by County as heretofore
provided.
14.
HOLD HARMLESS AND
INDEMNIFICATION .
14.01
See Amd 3 p.13
26
15.
INSURANCE .
See Amd 3 p.14
27
16.
TAXES AND ASSESSMENTS
.
16.01
The property interest conveyed
herein may be subject to real property taxation and/or
assessment thereon, and is the event thereof, Concessionaire shall
pay before delinquency all lawful taxes, assessments, fees or
charges which at any time may be levied by the State, County,
City or any other tax or assessment-levying body upon the
concession premises and any improvements located
thereon.
16.02
Concessionaire shall also pay all
taxes, assessments, fees and charges on goods, merchandise
fixtures, appliances and equipment owned or used
therein.
17.
TRANSFERS .
17.01
Concessionaire shall not, without
written consent of the Director, assign, hypothecate, or mortgage
this agreement or sublease or license any portion of the concession
premises. Any attempted assignment, hypothecation,
mortgage,
28
sublease or license without the consent of the
Director shall render this agreement null and void. Consent to the
foregoing shall not be unreasonably withheld by the
Director.
17.02
Each and all the provisions,
agreements, terms, covenants and conditions herein contained to be
performed by Concessionaire shall be binding upon any transferee
thereof.
17.03
This agreement or any interest
therein shall not be transferable in proceedings in attachment or
execution against Concessionaire, or in voluntary or involuntary
proceedings in bankruptcy or insolvency or receivership taken by or
against Concessionaire, or by any process of law including
proceedings under Chapter X or XI of the Bankruptcy Act.
17.04
Shareholders and/or partners of
Concessionaire may transfer, sell, exchange, assign or divest
themselves of any interest they may have therein. However, in
the event of any such sale, transfer, exchange, assignment or
divestment is effected in such a way as to give majority control of
Concessionaire to any persons, corporation, partnership or legal
entity other than the majority controlling interest therein at the
time of the execution of this agreement, approval thereof shall be
required. Consent to any such transfer shall only be refused if the
Director finds that the transferee is lacking in experience and/or
financial ability to conduct the concession.
17.05
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 Director.
17.06 & 17.07
See Amd 3 p.17
18.
NONDISCRIMINATION
.
18.01
See Amd 3 p.18
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19.
EASEMENTS .
19.01
County reserves the right to
establish, grant or utilize easements or rights of way over, under,
along and across the concession premises for utilities and/or
public access to Frank G. Bonelli Regional County Park, provided
County shall exercise such rights in a manner as will avoid any
substantial interference with the operations to be conducted
hereunder. Should the establishment of such easements permanently
deprive Concessionaire of the use of a portion of the concession
premises, an abatement of payments shall be provided in an amount
proportional to the total area of the concession premises in the
before and after conditions.
20.
CANCELLATION
.
20.01
Upon the occurrence of any one or
more of the events of default hereinafter described, this agreement
shall be subject to cancellation. As a
30
condition precedent thereto, the Director shall
give Concessionaire ten (10) days’ notice by registered
or certified mail of the date set for cancellation thereof; the
grounds therefor and that an opportunity to be heard thereon will
be afforded on or before said date, if request is made
therefor.
20.02
Upon cancellation County shall have
the right to take possession of the concession premises, including
all improvements, equipment, and inventory located thereon, and use
for the purpose of satisfying and/or mitigating all damages arising
from a breach of this agreement.
20.03
Action by County to effectuate a
cancellation 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.
20.04
Any trustee, beneficiary, mortgages
or lender under a hypothecation or mortgage previously approved by
the Director shall have the right at any time during the term of
this agreement to undertake any and all action that may be
required in order to prevent a cancellation of this agreement and a
forfeiture of the concession. Accordingly, the Director shall send
a copy of any intended cancellation of this agreement to any of the
aforementioned parties whose security would be affected thereby;
and upon request thereof for postponement, extend the date set
therefor by such time as the Director finds reasonable in order to
allow said parties to correct the grounds therefor or to provide a
new Concessionaire under a power of sale or foreclosure sustained
in the hypothecation or mortgage, who upon transfer thereto shall
become responsible for the correction thereof within such time as
may be allowed by the Director.
20.05
See Amd 3 p.20
21.
EVENTS OF DEFAULT
.
21.01
The abandonment, vacation or
discontinuance of operations on the concession premises for more
than forty-eight (48) consecutive hours, except for off-season
periods.
21.02
The failure of Concessionaire to
punctually pay or make the payments required hereunder when due,
where the delinquency continues beyond ten (10) days following
written notice for payment thereof.
31
21.03
The failure of Concessionaire to
operate in the manner required by this agreement, where such
failure continues for more than ten (10) days after written
notice from the Director to correct the condition therein
specified.
21.04
The failure to maintain the
concession 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 Director to
correct the condition.
21.05
The failure of Concessionaire 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 Director for correction thereof, provided that
where fulfillment of such obligation requires activity over a
period of time and Concessionaire 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 Director.
21.06
The filing of a voluntary petition
in bankruptcy by Concessionaire; the adjudication of Concessionaire
as a bankrupt; the appointment of any receiver of
Concessionaire’s assets; the making of a general assignment
for the benefit of creditors, a petition or answer seeking an
arrangement for the reorganization of Concessionaire 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 Concessionaire 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
Concessionaire’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.
32
21.07
Determination by the Director, the
State Fair Employment Commission, or the Federal Equal Employment
Opportunity Commission of discrimination having been practiced by
Concessionaire in violation of state and/or federal laws
thereon.
21.08
Transfer of the majority controlling
interest of Concessionaire to persons other than those who are in
control at the time of the execution of this agreement without
approval thereof by the Director.
21.09
Failure to have commenced required
construction by March 8, 1983, or any phase thereof on or
before the date selected for commencement thereof.
21.10
Failure to have completed required
construction by July 1, 1983.
21.11
See Amd 3 p.21
22. WAIVER .
22.01
Any waiver by County 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 County 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 estopping County from enforcing the
full provisions thereof.
22.02
No delay, failure, or omission of
County to re-enter the concession premises or to exercise any
right, power, privilege or option, arising from any default, nor
any subsequent acceptance of payments then or thereafter accrued
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.
22.03
No notice to Concessionaire shall be
required to restore or revive “time of the essence”
after the waiver by County of any default.
22.04
No option, right, power, remedy or
privilege of County shall be construed as being exhausted by the
exercise thereof in one or more instances. The rights, powers,
options and remedies given County by this agreement shall
be
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cumulative.
23. RIGHT OF ENTRY .
23.01
Any officer and/or employee of
County may enter upon the concession premises at any and all
reasonable times for the purpose of determining whether or not
Concessionaire is complying with the terms and conditions thereof,
or for any other purpose incidental to the rights of County within
the Frank G. Bonelli Regional County Park.
23.02
In the event of an abandonment,
vacation or discontinuance of concession operations for a period in
excess of forty-eight (48) hours, Concessionaire hereby irrevocably
appoints County as an agent for continuing operation of the
concession granted herein, and in connection therewith authorizes
the officers and employees thereof to (1) take possession of
the concession premises, including all improvements, equipment and
inventory thereon; (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 Concessionaire; (3) sublease
or license the premises; and (4) after payment of all expenses
of such subleasing or licensing apply all payments realized
therefrom to the satisfaction and/or mitigation of all damages
arising from Concessionaire’s breach of this agreement. Entry
by the officers and employees of County upon the concession
premises for the purpose of exercising the authority conferred
hereon as agent of Concessionaire shall be without prejudice to the
exercise of any other rights provided herein or by law to ready a
breach of this concession agreement.
24. SURRENDER .
24.01
Upon expiration of the term hereof,
or cancellation thereof as herein provided, Concessionaire shall
peaceably vacate the concession premises and any and all
improvements located thereon and deliver up the same to County in a
reasonably good condition, ordinary wear and tear excepted subject
to the right of County to demand removal thereof to the extent that
Paragraph 2.04 may be applicable thereto.
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25. INTERPRETATION.
25.01
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 State
Civil Code, commencing with Section 1635.
25.02
The headings herein contained are
for conveniences and references only and are not intended to define
or limit the scope of any provision thereof.
25.03
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:
“Auditor-Controller”:
the Auditor-Controller of County or an authorized representative
thereof.
“Concession”: the
privilege of engaging in the commercial activities authorized
herein on the public property designated thereof.
See Amd 3. p.21
“Cross Receipts”: all
money, cash receipts, assets, property or other things of value,
including but not limited to gross charges, sales, rentals, fees
and commissions made or earned by Concessionaire, and/or assignees,
subleases, or permittees thereof, whether collected or accrued from
any business, use or occupation, or any combination thereof,
transacted, or performed in whole or in part, on the concession
premises, including but not limited to rentals, the rendering or
supplying at services and the sale of goods, wares or merchandise.
There shall be deducted from said gross receipts the
following:
a. Sales and excise taxes applicable thereto,
required to be collected by Concessionaire, and/or the sublessees
or permittees thereof.
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b. Federal, state, municipal or other taxes
collected from the consumers, regardless of whether the amount
thereof is stated to the consumer as a separate charge, provided
the amount of such taxes shall be above on the accounting records
for the concession as hereinafter required.
c. Receipts from the sale or trade-in value of any
equipment used on the concession premises and owned by
Concessionaire.
d. Receipts in the form of refunds from or
the value of merchandise, supplies or equipment returned to the
shippers, suppliers or manufacturers.
e. Receipts with respect to any sale where the
subject of such sale, or some part thereof, is thereafter
returned by the purchaser and accepted by Concessionaire, to the
extent of any refund actually granted or adjustment actually made,
either in the form of cash or credit, including meals for
employees.
“Planned Recreational
Development”: Family swim park as described in attached
Exhibit D.
See Amd 3 p.21
"State": the State of
California.
26. ENFORCEMENT .
26.01
The Director shall be responsible
for the enforcement of this agreement on behalf of County and shall
be assisted therein by those officers and employees of County
having duties in connection with the administration
thereof.
26.02
In the event County commences legal
proceedings for the enforcement of this agreement or recovery of
the premises used herein, prevailing party in any legal action
shall be awarded reasonable attorney’s fees.
27. NOTICES .
27.01
See Amd 3 p.22
36
27.02
In performing the obligations
hereunder, Concessionaire is engaged solely in the capacity of
independent contractor, it being expressly understood that no
relationship between the contracting parties hereto other than that
of independent contractor, has been or intended to be created. This
concession agreement does not constitute, and the parties hereto do
not intend to create thereby a partnership, or a joint venture, or
a relationship of master and servant or principal and agent, as it
is actually understood and agreed that the relationship created
thereby and the construction of rights and duties thereunder is to
be determined in accordance with the laws relating to owners and
occupants of real property.
28. ENTIRE AGREEMENT .
28.01
This document and the exhibits
attached hereto, constitutes the entire agreement between the
County and Concessionaire for the concession and use granted at
Frank G. Bonelli Regional County Park for a planned recreational
development therein. All other agreements, promises and
representations with respect thereto, other than contained herein,
are expressly revoked, as it has
37
been the intention of the parties to provide for
a complete integration within the provisions of this document, and
the exhibits attached hereto, the terms, conditions, promises and
covenants relating to the concession and the premises to be used in
the conduct thereof. The unenforceability, invalidity, or
illegality of any provision of this agreement shall not render the
other provisions thereof unenforceable, invalid or
illegal.
28.02
This document may be modified
only by further written agreement between the parties hereto. Any
such modification shall not be affective unless and until executed
by Concessionaire and in the case of County until approved by the
Board of Supervisors and executed by the Chairman
thereof.
29.
See Amd 3 p.22
38
IN WITNESS WHEREOF, Concessionaire
has executed this agreement, or caused it to be duly executed, and
County of Los Angeles, by order of its Board of Supervisors has
caused this agreement to be executed on its behalf by the Chairman
of said Board and attested by the Executive Officer-Clerk thereof,
the day and year first above written.
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Specialty Villages, a general
partnership
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By:
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/s/ [ILLEGIBLE] general partner
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CONCESSIONAIRE
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[SEAL]
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COUNTY OF LOS ANGELES
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By:
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/s/ Michael D. Antonovich
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Chairman, Board of Supervisors
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ATTEST:
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JAMES S. MIZE, Executive Officer-
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Clerk of the Board of Supervisors
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ADOPTED
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By
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/s/ Marcia Fredrickson
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BOARD OF SUPERVISORS
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Deputy
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COUNTY OF LOS ANGELES
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14 MAR 8 1983
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APPROVED AS TO FORM:
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/s/ James S. Mize
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JOHN H. LARSON
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JAMES S. MIZE
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County Counsel
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EXECUTIVE OFFICER
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By
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/s/ [ILLEGIBLE]
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Deputy
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[ILLEGIBLE]
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2/10/83
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I hereby certify that pursuant to
Section 25103, of the Government Code,
delivery of this document has been made.
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[SEAL]
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JAMES S. MIZE
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Executive Officer-Clerk of
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the Board of Supervisors
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By
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/s/ Marcia Fredrickson
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Deputy
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CLERK’S CERTIFICATE
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STATE OF CALIFORNIA
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)
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) SS:
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COUNTY OF LOS ANGELES
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)
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On February 6, 1969 the Board
of Supervisors for the County of Los Angeles adopted a resolution
pursuant to Section 25103 of the Government Code which
authorized the use of facsimile signatures of the Chairman of the
Board on all papers, documents or instruments requiring his
signature.
The undersigned hereby certifies
that on this 8th day of March, 1983, the facsimile signature of
MICHAEL D. ANTONOVICH Chairman of the Board of Supervisors of the
County of Los Angeles was affixed hereto as the official execution
of this document. The undersigned further certifies that on this
date, a copy of the document was delivered to the Chairman of the
Board of Supervisors of the County of Los Angeles.
In witness whereof, I have also
hereunto set my hand and affixed my official seal the day and year
above written.
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RICHARD A. SCHOENI, Assistant
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Executive Officer of the Board of
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Supervisors of Los Angeles County
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By:
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/s/ Marcia Frederickson
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Deputy
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PUBLIC AGENCY ACKNOWLEDGEMENT
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STATE OF CALIFORNIA
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)
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) SS:
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COUNTY OF
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)
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On June 15, 1983, before me, the undersigned, a notary public
in and for said county and state, personally appeared Marcia
Frederickson, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person who executed the within
instrument, as a Deputy of the Clerk of the Board of Supervisors of
Los Angeles County, and acknowledged to me that such Clerk of the
Board of Supervisors of Los Angeles County executed the
same.
WITNESS my hand and official seal
(Seal)
OFFICIAL SEAL
GEORGETTE WAUGH
[ILLEGIBLE]
LOS ANGELES COUNTY
[ILLEGIBLE]
