EXHIBIT B
Agreement D06-056
Food and Beverage Concession Agreement
The key provisions of this Agreement are as follows:
I.
II.
III.
IV.
V.
VI.
RECITALS
FOOD AND BEVERAGE CONCESSION
LICENSES AND PERMITS
1.
Liquor License
2.
Permits
COMMENCEMENT AND TERM
1.
Initial Term
2.
Extension of Term
3.
Agreement Term
4.
Early Termination
USE OF PREMISES AND RIGHTS OF CONCESSIONAIRE
1.
Use of the Premises
2.
Vending Machines
3.
Rights Not Exclusive - Pro Shop Sales
4.
Concessionaire Takes the Premises “As Is”
5.
Ownership and Use of Furniture, Fixtures and Equipment
6.
Improvements and Refurbishments to be made by Concessionaire
7.
Completion of Additional Improvements
8.
Title to Vest in District
PAYMENT OF RENT AND RECONCILIATION/AUDITS
1.
Monthly Payments of Rent
2.
Calculation of Percentage Rents
3.
Percentage Rent Annualized
4.
Annual Audit
5.
Definition of "Gross Revenues"
6.
Record Keeping
7.
Auditing
8.
Medium of Payment
9.
Delinquencies
10
Security
OBLIGATIONS OF CONCESSIONAIRE
1.
Serviceware, Utensils and Cleaning Materials
2.
Standards of Operation
3.
Hours of Operation
4.
Prices
5.
Solicitation
6.
Food & Beverage Manager
7.
Expenses
8.
Personnel Policies
9.
Maintenance and Repair of Premises
10.
Alterations
11.
Avoidance of Liens
12.
Cooperation with Concessionaire's Successor
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VII.
VIII.
IX.
X.
XI.
XII.
XIII.
XIV.
XV.
XVI.
RIGHTS OF DISTRICT
1.
Rights of Entry and Inspection and Other Rights
2.
Right of Oversight by District
3.
Right to Suspend or Terminate Concession Agreement Provisions
4.
Right to Restrict Access Beyond Security Checkpoints
5.
Rights During National Emergency
6.
Rights to Future Development
FACILITIES TO BE FURNISHED BY DISTRICT
ASSIGNMENT AND SUBLETTING
TERMINATION AND CANCELLATION
1.
Termination and Timely Surrender
2.
Cancellation by Concessionaire
3.
Cancellation by District
DAMAGE TO PREMISES BY CASUALTY
1.
Partial Damage
2.
Substantial Damage
3.
Extensive Damage
4.
Damage Due to Concessionaire’s Negligence
5.
Damage to Personal Property
INDEMNIFICATION
1.
Indemnification - District Held Harmless
2.
Indemnification – Concessionaire Held Harmless
INSURANCE
1.
General Insurance Requirements
2.
Coverage and Minimum Limits
3.
Waiver of Subrogation by District
4.
Waiver of Subrogation by Concessionaire
COMPLIANCE WITH RULES AND REGULATIONS
ENVIRONMENTAL CONCERNS
GENERAL PROVISIONS
1.
Non-Discrimination
2.
Accessibility to the Disabled
3.
Failure to Enforce
4.
Invalid Provisions
5.
Non-Waiver
6.
Holding Over
7.
Interpretation
8.
Successor and Assigns Bound by Covenant
9.
No Partnership Created
10.
Concessionaire is Independent Operator
11.
Notices
12.
No Personal Liability
13.
Headings
14.
Construction
15.
Survival of Obligations
16.
Entire Agreement
17.
Exhibits
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Agreement D06-056
FOOD AND BEVERAGE CONCESSION AGREEMENT
ORANGE COUNTY FLOOD CONTROL DISTRICT
AND
GRIVER GOLF, LLC
THIS FOOD AND BEVERAGE CONCESSION AGREEMENT (hereinafter called
"Concession Agreement"), is made and entered this the _________day of ____________,
2006, by and between the ORANGE COUNTY FLOOD CONTROL DISTRICT, a body
corporate and politic (hereinafter referred to as "District"), and GRiver Golf, LLC
(hereinafter referred to as "Concessionaire");
RECITALS:
WHEREAS, the District owns the Green River Golf Club, located at 5215 Green
River Drive, in the City of Corona, State of California, and
WHEREAS, the District wishes to provide facilities in the public areas of the Green
River Golf Club to serve food and beverages for the accommodation of the Green River
Golf Club customers and the general public;
WHEREAS, the District representative for administration of this Concession
Agreement is the Director of the Orange County Resources and Development
Management Department or his designee.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
and agreements hereinafter contained, the parties hereto agree, for themselves, their
successors and assigns, as follows:
I.
FOOD AND BEVERAGE CONCESSION.
District hereby grants to Concessionaire, an independent contractor, the right and privilege
to operate, sell and dispense food, alcoholic beverages, and other such products as are
authorized by District at or upon the Green River Golf Club, at the locations more
specifically described and shown on the attached Exhibit A (hereinafter “Premises”). No
other use or activity shall be conducted by Concessionaire, its owners, backers, officers,
employees or agents without the express written consent of District.
II.
LICENSES AND PERMITS.
1.
Liquor License. Upon execution of this Concession Agreement, Concessionaire
shall make application to the California Department of Alcohol and Beverage Control
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(ABC) to obtain or transfer the Liquor License(s) currently issued for the sale of food and
alcoholic beverages at the Premises; and acquired in conjunction with District’s purchase
of the Green River Golf Club. Upon receipt of the Liquor License(s), Concessionaire
covenants and agrees that in no event will it cause or permit the sale, service or
consumption of alcoholic beverages in violation of state liquor control laws and regulations
and Concessionaire covenants and agrees that in no event will it cause or permit the sale,
service or consumption of alcoholic beverages in any part of the Premises other than the
areas permitted pursuant to the Liquor License(s). This Concession Agreement may be
terminated by District, immediately and without penalty to District, at District’s sole
discretion, should Concessionaire fail to obtain the required Liquor License(s) within 90
days of application to the ABC; or, if Concessionaire violates any liquor control laws or
regulations or any other terms or conditions of the Liquor License(s) once Concessionaire
has been issued such Liquor License(s) by the ABC.
2.
Permits. Concessionaire shall obtain, at its own cost, as a cost of operation prior to
commencing operations at the Premises, all other (excluding the Liquor License)
necessary permits, licenses and other approvals required by law for its operation
hereunder.
III.
1.
COMMENCEMENT AND TERM.
Initial Term. Unless sooner terminated under the other provisions of this
Concession Agreement, the Initial Term of this Concession Agreement shall be for
Two years, Ten months and Twenty-one days beginning on September 30, 2006
and will continue to and including August 21, 2009.
2.
Extension of Term. If Concessionaire complies with all of the terms and conditions of
this Concession Agreement to be kept and performed by Concessionaire for the entire length
of the Initial Term, and if District desires to extend the term of this Concession Agreement for
an additional two (2) year term, District shall notify Concessionaire 90 days prior to expiration
of the Initial Term, of District’s desire to extend the term hereof for such period.
3.
Agreement Term. The Initial Term and any extensions thereof shall be referred to
as the Agreement Term for the purposes of this Concession Agreement.
The Agreement Term commencing on September 30, 2006 is amended per Section III.2 to
continue to and include August 21, 2011.
The Agreement Term commencing on September 30, 2006 is amended to continue to and
include August 21, 2014.
4.
Early Termination. The economic terms of this Concession Agreement were
proposed upon the expectation that the Agreement Term would be extended to five years
notwithstanding the District's non-renewal and termination rights. Accordingly, in the event
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District fails to renew this Concession Agreement or terminates this Concession
Agreement for any reason other than the Material Default of Concessionaire,
Concessionaire shall be entitled on the date of such termination or non renewal, to an
"Early Termination Fee" in the following amount:
Date of Termination
Early Termination Fee:
During first 12 months
During second 12 months
During third 12 months
During fourth 12 months
After 48 months
$60,000
$45,000
$30,000
$15,000
$15,000
After sixty (60) months from the date September 30, 2006, no early termination fee will be
owed by District to Concessionaire.
IV.
USE OF PREMISES AND RIGHTS OF CONCESSIONAIRE.
1.
Use of the Premises. Concessionaire shall use the Premises for the preparation
and sale to the public of food and beverages, both alcoholic and non-alcoholic, and for the
preparation and sale of such other food and beverage items as shall be approved from
time to time by District and for storage, office and administrative functions in connection
with Concessionaire's operations hereunder. Concessionaire shall use the storage areas
described in Exhibit A for storage of its inventory of food and beverages, and of equipment
and supplies, which are used by Concessionaire in providing its service hereunder.
Concessionaire shall not use the Premises for any purpose other than the purposes
specifically provided for herein. Without limiting the generality of the foregoing,
Concessionaire shall not use the Premises to offer or to sell any tobacco or tobacco
related products.
2.
Vending Machines. In addition to its right to sell food and beverage items within
the Premises, Concessionaire shall also have the non-exclusive right to operate vending
machines at locations approved in writing by District.
3.
Rights Not Exclusive - Pro Shop Sales. The District may grant the right to sell the
following items to another party having the District’s approval to sell retail merchandise in
the Pro Shop: bottled water, bottled or canned drinks, candy, snacks and packaged food
items.
4.
Concessionaire Takes the Premises "As Is." Concessionaire takes the Premises
without any improvement, repair or modification by District and subject to the following
except as otherwise provided for herein: (i) ordinary wear and tear occurring between the
date hereof and the date Concessionaire takes possession of the Premises, (ii) the
vacation by the former owner/operator and the removal of any property belonging to such
former owner/operator, and any damages to the Premises which are reasonable and
expected as a result of such removal. With prior approval by District, Concessionaire may,
at its own cost and expense, dismantle any existing improvements or property on the
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Premises which is not to be used by Concessionaire and remove any junked materials or
equipment from the Premises.
5.
Ownership and Use of Furniture, Fixtures and Equipment. District is the owner
of the furniture, fixtures and equipment (hereinafter “District FF&E”) located at the
Premises which may be used by Concessionaire in whole or in part for the preparation and
service of food and beverages at the Premises. At the commencement of this Concession
Agreement, Concessionaire and District will take an inventory of all District FF&E. District
FF&E will be returned to District with the Premises upon termination or expiration of this
Concession Agreement, in the same condition as received, ordinary wear and tear
excepted. Concessionaire will acquire additional furniture, fixtures and equipment for use
at the Premises including dishes, utensils, pans and cooking and serving equipment, and
all such additional furniture, fixtures and equipment will become the property of District.
6.
Improvements and Refurbishments to be made by Concessionaire. Within
thirty (30) days after the execution hereof, Concessionaire shall submit a recommendation
to District for its approval, proposed plans and specifications, including a detailed
breakdown of the estimated costs, for the construction of any improvements that
Concessionaire recommends be made to the Premises, (such improvements, and said
equipment, fixtures and furnishings to be referred to hereinafter as "Concessionaire
Improvements"). District shall have the sole right to approve or deny said recommendation
in whole or in part and/or require such changes, if any, in such plans and specifications, as
District shall deem necessary or desirable in its reasonable judgment, including, without
limitation, changes (i) to correct errors or supply missing information, (ii) to comply with
applicable building codes, health and safety regulations or other legal requirements or (iii)
to make the proposed facilities more suitable for the services which Concessionaire is
obligated to provide hereunder, or more compatible with the remainder of the Green River
Golf Club. District shall, within sixty (60) days after its receipt of the proposed plans and
specifications from Concessionaire, notify Concessionaire of the changes thereto, if any,
which will be required by District hereunder and Concessionaire shall make such
reasonable changes within thirty days thereafter and submit the revised plans and
specifications to District. Concessionaire Improvements will be made by Concessionaire at
Concessionaire's expense but subject to the following obligation of District: In the event
that this Concession Agreement is cancelled or terminated prior to the end of the
Agreement Term for any reason other than an uncured event of default by
Concessionaire, then District shall, upon such termination, reimburse Concessionaire for
the unamortized cost of such Concessionaire Improvements based upon a 5 year useful
life amortized on a straight line basis.
7.
Completion of Additional Improvements. Following District’s approval of the
Concessionaire Improvements, in accordance with Paragraph 6 above, Concessionaire
shall take such action as shall be necessary to commence the construction and
implementation of the Concessionaire Improvements to the Premises.
8.
Title to Vest in District. Title to all Concessionaire Improvements constructed,
installed or placed in the Premises under this Concession Agreement, and any
replacements thereof or additions thereto, shall immediately vest in District subject to the
right of Concessionaire to use the same during the Agreement Term hereof pursuant to
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the terms and conditions of this Concession Agreement and subject to the District's
obligation as set forth in Paragraph 6 of this Section IV.
V.
PAYMENT OF RENT AND RECONCILIATION/AUDITS.
For the rights, privileges and use of the Premises granted in this Concession Agreement,
Concessionaire shall pay to District rent as set forth herein, and shall comply with the
record-keeping and other obligations of the Concessionaire set forth hereinafter, as
follows:
1.
Monthly Payments of Rent.
(A)
Base Rent. On or before the first day of each and every month during the
Agreement Term hereof, Concessionaire shall pay rent to District, in advance and without
demand, the sum of $1,000 (such amount shall be referred to as the “Base Rent”). Base
Rent for the first month and the last month of this Concession Agreement shall be prorated
on the basis of a 30 day month for any partial month.
(B)
Percentage Rent. For each calendar month during the Agreement Term,
Concessionaire shall also pay District the amount, if any, of the total of the following
percentages of Concessionaire's Gross Revenues for that month:
(i)
0% of the first $62,500 of Gross Revenue for that month, plus
(ii)
12% of the Gross Revenues for that month in excess of
$62,500 and up to $104,167, plus
(iii)
15% of Gross Revenues for that month in excess of $104,167
Concessionaire shall first apply any credit then available resulting from past audit in
accordance with Paragraph 4 below.
2.
Calculation of Percentage Rents. Within twenty days after the end of each
calendar month during the Agreement Term hereof, Concessionaire shall provide District
with an accounting of its Gross Revenues for such calendar month. Such accounting shall
be submitted on a form approved by District and shall include sufficient detail to show
calculations as set forth in Subparagraph 1(B) hereinabove and to show separately the
revenues of Concessionaire from each of its facilities within the Premises. Upon the
submission of such accounting, Concessionaire shall pay District the amount, if any, of
Concessionaire's Percentage Rents for such calendar month. Such payments shall be
subject to annual adjustment in accordance with Paragraphs 3 and 4 below.
3.
Percentage Rent Annualized At the end of each Agreement Year (as defined
below) the Percentage Rent will be recalculated on an annualized basis for the preceding
Agreement Year. The Percentage Rent owed for such Agreement Year or portion thereof
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will be an amount, if any, by which the amount of the total of the following percentages of
Concessionaire's Gross Revenues for that Agreement Year, exceed the Percentage Rent
paid pursuant to Paragraph 2 above, for the same period adjusted in accordance with the
foregoing provision:
(i)
0% of the first $750,000 of the Gross Revenues for that
Agreement Year, plus
(ii)
12% of the Gross Revenues for that Agreement Year in excess
of $750,000 and up to $1,250,000, plus
(iii)
15% of the Gross Revenues for that Agreement Year in excess
of $1,250,000.
4.
Annual Audit. Within ninety days after the end of each year of this Concession
Agreement (Agreement Year) throughout the Agreement Term including any extensions
thereof, Concessionaire shall prepare and submit to District a statement of its total Gross
Revenues for such Agreement Year, or the portion thereof if the period is less than the full
Agreement Year term. Such statement shall be prepared in conformity with the
Concession Agreement, shall be in such detail as may be acceptable to District, and shall
be audited by an independent Certified Public Accountant (CPA) who is a member of the
American Institute of CPAs and who is approved in advance by District.
If said audit reveals that the total rent required to be paid by Concessionaire for such
Agreement Year term calculated in accordance with Paragraph 3 above is less than the
amount of rent calculated and paid under Paragraph 2 above for such period, such excess
shall be credited by District to any obligation of the Concessionaire which is then due or
coming due, or if the Agreement Term hereof has expired and all of Concessionaire's
obligations to District have been satisfied in full, District shall pay such excess to
Concessionaire. If the audit reveals that the total rent required to be paid by
Concessionaire for such Agreement Year term calculated in accordance with Paragraph 3
above is greater than the amount of rent calculated and paid under Paragraph 2 above for
such period, Concessionaire will remit the deficiency to District with such accounting.
Concessionaire acknowledges its understanding that any and all financial statements
submitted to District pursuant to this Concession Agreement become Public Records and
are subject to public inspection pursuant to Section 6250 et.seq. of the California
Government Code.
5.
Definition of "Gross Revenues". As used in this Concession Agreement, the term
"Gross Revenues" shall mean:
(A)
All amounts, of every kind or nature, charged or received by Concessionaire
for business conducted by Concessionaire at the Premises, or in connection with the
operation of Concessionaire's rights or privileges hereunder, without deduction or
exclusion except as specifically provided for in this Section, without regard to whether the
applicable transactions are for cash, credit, exchange or otherwise, and without regard to
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whether amounts charged by Concessionaire are actually collected. No deduction shall be
made for bad debts.
(B)
Non-cash consideration received by Concessionaire shall be included in
Gross Revenues at its cash value.
(C)
Without in any manner limiting the generality of the foregoing, the term
"Gross Revenues" shall include the gross amounts charged by Concessionaire for all food
and beverages, both alcoholic and non-alcoholic, and for any other items sold by
Concessionaire at the Premises, and for all services provided by Concessionaire at the
Premises, together with the amount of all orders taken or received by Concessionaire at
the Premises and filled elsewhere.
(D)
If any part of Concessionaire's business shall be conducted by any party
other than Concessionaire, there shall be included in Concessionaire's Gross Revenues
hereunder all of the Gross Revenues of such party in the same manner and with the same
effect as if such business had been conducted by Concessionaire itself.
(E)
Each charge or sale upon installment or credit shall be treated as a receipt
for the full price in the month in which such charge or sale is made, irrespective of the time
when, or whether, Concessionaire shall receive payment therefore.
(F)
All Food and Beverages which are included in a Golf Tournament Package
shall be reported as revenue at its reasonable competitive market price.
(G)
All sums deposited in any coin-operated vending machine or device
maintained on the Premises, if such machine or device is owned by Concessionaire shall
be included in Gross Revenues. If coin-operated vending machines or devices maintained
on the Premises belong to unrelated third parties, then only amounts actually received by
Concessionaire as rent or commission shall be included in Gross Revenues.
The term "Gross Revenues" shall not include:
(A)
The amount of receipts from the sale of or the trade-in value of any furniture
or fixtures used on any of the Premises and owned by Concessionaire;
(B)
The amount of any federal, state or local excise or sales taxes levied upon
the sales of the Concessionaire and collected from the purchaser as a separate item;
(C)
The value of any goods, wares, merchandise, or services given by
Concessionaire, without charge, but not in exchange, to any other person or party;
(D)
The value of any meals and/or beverages given without charge to employees
of Concessionaire;
(E)
Receipts with respect to any sale made at the Premises by the
Concessionaire in which the goods sold are thereafter returned by the purchaser and such
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return is accepted, to the extent of any refund actually granted or adjustment actually
made by Concessionaire either in the form of cash or credit;
(F)
The amount of any tip or other gratuity given by patrons or customers to
employees of Concessionaire.
6.
Record Keeping. Concessionaire shall, at all times during the term of
the Concession Agreement, keep or cause to be kept true and complete books, records
and accounts of all financial transactions in the operation of all business activities, of
whatever nature, conducted in pursuance of the rights granted herein. The records must
be supported by source documents such as cash register tapes, sales slips, or other
pertinent documents to properly and accurately report “Gross Revenues”. Such records of
the Gross Revenues shall include sufficient detail of food sales verses beverage sales,
both alcoholic and non-alcoholic, to comply with ABC requirements.
At each of Concessionaire's facilities within the Premises, Concessionaire shall install and
record all sales and charges by means of cash registers or other comparable devices that
display to the customer the amount of the transaction and automatically issue a receipt.
The cash registers shall be equipped with devices that lock in sales totals and other
transaction records, or with counters which are not re-settable and which record
transaction numbers and sales details. Totals registered shall be read and recorded by
Concessionaire at the beginning and end of each business day. All voided transactions
shall be supported by the original cash register tape with supervisory approval
documented.
Mobile food and beverage sales may be recorded by a system other than cash registers or
other comparable devices, provided said system includes daily reporting of such sales and
charges and is approved in writing by the District.
Serially numbered contracts shall be prepared for each event (weddings, banquets,
meetings, etc.) with sufficient detail of charges to accurately report “Gross Revenues” and
include the customer signature.
Concessionaire shall keep and maintain for a period of three years after the end of each
Agreement Year, in conformity with the Concession Agreement, all records of its Gross
Revenues for such Agreement Year, whether in written or computer form, including,
without limitation, its general ledger, sales and cash receipts, journals, daily business
reports, cash register and computer terminal tapes, bank deposit slips, credit/debit card
fee statements, tax reports filed with state and federal agencies and contractual
agreements with other Green River Golf Club operators/tenants. During the entire
Agreement Term hereof, Concessionaire shall keep such records on the Premises at a
location approved by District, and all such records, and the data recording equipment of
Concessionaire shall be subject to inspection at all reasonable hours by District.
7.
Auditing. In addition to its right of inspection under Paragraph 6 above, District or
its representative shall have the right, upon seventy-two (72) hours prior notice, at any
time and from time to time during the Agreement Term hereof or within three years
thereafter, to audit the records of Concessionaire relating to its Gross Revenues.
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Concessionaire, upon request, shall make all such records available for examination at the
offices of District. If delay or additional costs are incurred in connection with such audit,
which are caused by Concessionaire, Concessionaire shall be responsible for such
additional costs. At the request of the Concessionaire, District or its representative may
conduct the audit at a location other than the offices of District, provided Concessionaire
shall reimburse to District all additional expenses which are incurred by District for
conducting such audit away from its offices, including, but not limited to, travel expenses,
travel time, and other related expenses.
If, as a result of an audit, it is established that Concessionaire or any sub-concessionaire
has understated Gross Revenues for the period covered by the audit by five percent (5%)
or more, the entire expense of said audit shall be borne by Concessionaire. Any additional
Percentage Rents due as a result of such audit shall forthwith be paid by Concessionaire
to District with interest thereon, from the end of the month in which the discrepancy
occurred until payment is made, at a rate of eighteen percent (18%) per annum or the then
maximum lawful rate of interest per annum, whichever is less.
8.
Medium of Payment. All payments hereunder shall be made in lawful money of the
United States.
9.
Delinquencies. In the event Concessionaire is delinquent for a period of thirty days
or more in paying to District any sums payable pursuant to this Concession Agreement,
District shall be entitled to collect from Concessionaire interest thereon, from the date such
sum was due and payable until paid, at the rate of eighteen percent (18%) per annum or at
the then maximum lawful rate of interest per annum, whichever is less, plus the
reasonable attorney's fees incurred by District in the collection of such delinquency.
Receipt of such interest or attorney's fees by District shall not bar the exercise of any other
remedy available to District on account of such delinquency.
10.
Security. As security for the payment or performance by Concessionaire of its
obligations hereunder, Concessionaire will provide to District, upon the execution hereof, a
cash security deposit in the amount of $12,000.00. If Concessionaire is in default District
can use the security deposit, or any portion of it, to cure the default or to compensate
District for all damage sustained by District resulting from Concessionaire's default.
Concessionaire shall immediately on demand pay to District a sum equal to the portion of
the security deposit expended or applied by District as provided in this Paragraph so as to
maintain the security deposit in the sum initially deposited with District. If Concessionaire
is not in default at the expiration or termination of this Concession Agreement, District shall
return the security deposit to Concessionaire. District's obligations with respect to the
security deposit are those of a debtor and not a trustee. District may maintain the security
deposit separate and apart from District's general funds or may commingle the security
deposit with District's general and other funds. District shall not be required to pay
Concessionaire interest on the security deposit.
VI.
OBLIGATIONS OF CONCESSIONAIRE.
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In addition to its covenants and agreements set forth elsewhere in this Concession
Agreement, Concessionaire shall perform the following obligations during the Term hereof:
1.
Serviceware, Utensils and Cleaning Materials. Concessionaire is to provide at
its sole expense all kitchen aids, serving aids and all other related items necessary for the
proper maintenance of the Premises and proper service for the purposes of this
Concession Agreement, and will furnish at its sole expense, all basic and miscellaneous
cleaning equipment, chemicals and utensils for maintenance of the Premises areas and
will furnish at its sole expense all pots, pans, utensils, and miscellaneous serving utensils
such as trays, tray stands, pitchers, coffee servers and, as necessary, dinnerware.
Disposable dishes, glasses, cups and eating utensils of a reasonable kind and quality may
be used in the operation of the patio dining facility. The expense thereof shall be solely
borne by Concessionaire. All Serviceware, Utensils and other items supplied by
Concessionaire shall become the property of District.
2.
Standards of Operation.
(A)
Concessionaire shall operate in a first-class manner all of the businesses
operated by Concessionaire pursuant to this Concession Agreement, and shall keep the
Premises and all other locations in which Concessionaire operates per District’s approval
hereunder in a safe, neat, clean, orderly, and inviting condition at all times, reasonably
satisfactory to District.
(B)
Concessionaire shall offer a wide variety of food and beverages (both
alcoholic and non-alcoholic) sufficient to meet the demand of the golfing public and other
persons using the Green River Golf Club facilities. Concessionaire will, at the request of
District, add items to its menus if the District reasonably determines that such items are
useful or desirable to the golfing public or others using the Green River Golf Club facilities.
(C)
Concessionaire shall at all times maintain a standard of quality and quantity
with respect to the food and beverages sold by Concessionaire at the Premises at least as
high as the standard for like food and beverages sold or offered for sale at restaurants
serving comparable food and beverages within a twenty-mile radius of the Green River
Golf Club. The quality and quantity of all food and beverages sold by Concessionaire shall
be subject to the approval of District. Concessionaire shall maintain a sanitation rating of
"Grade A II” for each of its food-serving facilities based on the sanitation ratings which are
now given, from time to time, to restaurants under the laws of the State of California.
(D)
Concessionaire's service shall be prompt and efficient, and Concessionaire
shall at all times have a sufficient number of its food and beverage service employees on
hand, and adequate facilities, to provide such service. Concessionaire's employees shall
be clean and courteous and neat in appearance. Concessionaire shall not permit any of its
employees at the Premises to use foul or profane language, or act in a loud or boisterous
or otherwise improper manner.
(E)
Concessionaire will accept at least the following credit cards in payment for
its sales and service hereunder: VISA and MasterCard
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(F)
All food and beverages kept for sale by Concessionaire hereunder shall be
subject to inspection by District.
3.
Hours of Operation. Concessionaire's facilities shall be open for service to the
public seven days a week during the hours of operation specified for each facility at the
Premises on the schedule attached hereto as Exhibit B. District may make such changes
in such schedule, from time to time, which it reasonably believes to be necessary to adjust
to changing demand or changing conditions at the Green River Golf Club. Concessionaire
may likewise make changes in such schedule for such purposes with the consent of
District, which shall not be withheld unreasonably.
4.
Prices. The prices charged by Concessionaire for food and beverages sold
hereunder shall be reasonably competitive with prices charged for like food and beverages
by similar establishments. If District believes that the prices charged by Concessionaire
exceed such reasonably competitive prices, Concessionaire and District shall confer and
make such reasonable adjustments to prices as necessary to keep prices reasonably
competitive. Prices for all food and beverages sold hereunder shall be conspicuously
displayed by the Concessionaire.
5.
Solicitation. Solicitation of business at the Green River Golf Club by
Concessionaire shall be confined to signs, placards, and advertising displays, all of which
shall be subject to the approval of District prior to installation or placement and at all times
thereafter. This requirement shall not apply to small signs, placards, and other similar
items which would normally be placed within the Premises or affixed to tables, counters,
bars, and the like, if they refer to items offered for sale by Concessionaire.
6.
Food & Beverage Manager. Subject to the approval of District, Concessionaire
shall select and appoint a Food and Beverage (F&B) Manager for Concessionaire's
operations at the Premises. Such person must be an outstanding, highly qualified and
experienced manager or supervisor of comparable operations, and shall be vested by
Concessionaire with full power and authority to accept service of all notices provided for
herein and to oversee operation of the concession business herein authorized, including
the quality and prices of the food and beverages sold by Concessionaire hereunder, and
the appearance, conduct and demeanor of Concessionaire's employees. Said F&B
Manager shall be assigned to a duty station or office at the Premises, where he or she
shall ordinarily be available during regular business hours and where, at all times during
the F&B Manager's absence, a responsible subordinate shall be in charge and available.
The F&B Manager appointed by Concessionaire shall devote his or her full time and
attention to the performance of his or her duties hereunder and shall not be assigned any
other duties or responsibilities by Concessionaire.
7.
Expenses.
(A)
Utilities. Concessionaire will be responsible for the payment of all gas,
electricity, communications and other utilities (except for hot and cold water, which shall be
provided by District in accordance with Section VIII hereof) and services used or
consumed in the Premises including a prorated share of those which may not be
separately metered. If the cost of any such utility service for Concessionaire's operations
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is charged to District by the utility company, Concessionaire shall reimburse such costs to
District within five days after receiving an invoice therefore. Either District or
Concessionaire shall have the right but no obligation to install separate meters at the
Premises for any utility.
(B)
Personal Property Tax. All personal property taxes, ("Personal Property
Taxes") levied or assessed on equipment, furniture, trade fixtures and other personal
property located on and used at the Premises (including District FF&E and
Concessionaire's FF&E and Improvements) are to be paid by Concessionaire.
(C)
Real Property Taxes and Assessments. Whether the same are separately
assessed to Concessionaire or to District, Concessionaire shall pay Concessionaire's pro
rata share of all real property taxes and general and special assessments of any nature
levied and assessed against the building or buildings in which the Premises are located
("Real Property Taxes"). Concessionaire's share of the Real Property Taxes, whether or
not it is separately assessed or whether or not payable by District, shall be determined by
the ratio that the number of square feet in the Premises bears to the total floor area of the
building or buildings in which the Premises are located included on the tax bill.
(D)
Notification and Payment of Taxes. District shall notify Concessionaire of
its share of the Personal Property Taxes and Real Property Taxes and together with such
notice shall furnish Concessionaire with a copy of all notices of tax assessment and tax
bills along with the calculation thereof by District. Unless such taxes are assessed and
billed directly to Concessionaire, Concessionaire shall pay its share of the Personal
Property Taxes and Real Property Taxes to District not later than fifteen days after receipt
of such written notice. District shall have the right to establish an estimated budget for
such taxes and such other items of additional rent as District may elect and to bill
Concessionaire monthly for such items and to reconcile and adjust the budget not more
frequently than quarterly as District becomes aware of actual amounts. Concessionaire
shall pay any additional amounts due within fifteen days of notice thereof to
Concessionaire and District shall credit any such credit to Concessionaire against the next
sums otherwise due from Concessionaire. Taxes in the first year (at the Commencement
Date) and the last year of the term of this Concession Agreement shall be prorated on the
basis of a 365-day year for any partial tax year.
8.
Personnel Policies. All food and beverage service employees will be on
Concessionaire’s payroll. All persons employed by Concessionaire at the Premises shall
be in uniform, acceptable to District, at all times. Concessionaire's employees shall comply
with the rules and regulations at any time promulgated by District for the safe, orderly and
efficient conduct of all activities being carried out while on the Premises. Concessionaire
shall not retain any employee that is not acceptable to District for any reason.
9.
Maintenance and Repair of Premises. Except for maintenance and repairs
necessitated by the willful acts or negligence of the Concessionaire, or of its agents,
employees, invitees, licensees or customers, District shall be responsible at its cost for
maintaining the heating and air conditioning systems, roof, foundation and structural
components of the Premises as well as the parking lot, exterior and landscaped areas.
Concessionaire shall be responsible for maintaining the interior and non-structural portions
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of the Premises, throughout the Agreement Term hereof, and delivering the same to
District at the termination of this Concession Agreement, in good condition and repair,
reasonable wear and tear excepted, and damage which District is obligated to repair under
Section XI hereof also excepted. Without limiting the generality of this obligation,
Concessionaire will, at its own expense, be responsible as follows:
(A)
Concessionaire shall repair and maintain all equipment, furniture, furnishings
and installations which are used within the Premises. Concessionaire shall be responsible,
at its own expense, for the maintenance and repair of all lighting fixtures within the
Premises, including the replacement of incandescent and fluorescent lamps, starters,
ballasts and other similar appurtenances.
(B)
Cleaning and maintenance of the Premises shall be conducted at a level
consistent and in accordance with all applicable health and sanitation laws and
regulations, and any other standards as may be directed by District.
(C)
Equipment storage and maintenance areas shall at all times be kept and
maintained in a clean, orderly and sanitary condition, free of debris and oil spills.
Flammable materials must be stored in containers and in locations which are approved by
District and/or applicable local and state regulators. Spare equipment not used in regular
daily operations shall be stored in areas designated by District.
(D)
Concessionaire shall provide complete and proper arrangements for
handling and disposal off the Premises of all garbage, trash, unused equipment, and other
refuse resulting from Concessionaire's operations at the Green River Golf Club; and
Concessionaire shall provide and use suitable receptacles, in sufficient number, on the
Premises and other areas used by Concessionaire, for the disposal of the same. Upon
payment by Concessionaire of such charges as District may assess therefore,
Concessionaire shall have the right to use the District’s trash bins for disposal of its refuse.
Piling of boxes, cartons, barrels or other similar items in an unsafe or unsightly manner is
forbidden.
(E)
Concessionaire shall be responsible for the repair and maintenance of all
plumbing which serves the Premises, including water lines from the point of connection
with the main water line, and drains and waste lines to the point of connection with the
main sewer line, whether such lines and such connections are within or outside the
Premises. All drains shall be properly installed and sealed to prevent leakage, and
Concessionaire shall install catch pans underneath all drains and waste lines where
necessary to prevent leakage. Concessionaire is responsible for all material that is
deposited in the plumbing system from the Premises and for cleaning the grease traps
within the Premises. Concessionaire shall not deposit any drain cleaner or other chemical
substances into the plumbing system which have not been approved in advance by District
and/or applicable local and state regulators. Concessionaire shall reimburse District upon
demand all costs of repairing any damage to District’s plumbing or other property of
District resulting from a failure by Concessionaire to maintain the plumbing system serving
the Premises, or from any failure by Concessionaire to keep such plumbing system or the
floors within the Premises in a watertight condition, or from any liquid, grease or other
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debris which has been deposited in such plumbing system that results in stoppage or
other damage.
(F)
Concessionaire will at all times keep the Premises free of insects, rodents,
and other pests.
If Concessionaire fails to perform its obligations under this Paragraph 9, District may enter
the Premises (without such entering being regarded as a termination of this Concession
Agreement or an interference with the possession of the Premises by the Concessionaire)
and do all things necessary to restore said Premises to the condition required by this
Concession Agreement, charging the cost and expense to Concessionaire, and
Concessionaire shall pay to District all such costs and expenses in addition to the rentals,
fees, and charges herein provided. Notwithstanding the foregoing provisions of this
Paragraph 9, the obligation of Concessionaire to maintain and repair the Premises shall
not extend to the repair of any structural damage thereto not caused by the willful act or by
the negligence of Concessionaire, or of its agents, employees, licensees, invitees, or
customers.
10.
Alterations. Concessionaire shall make no alterations or changes in the Premises
without having first received the prior written approval of District.
11.
Avoidance of Liens. In the performance of the work to be done by Concessionaire
of any alterations made by Concessionaire under Paragraph 10 hereinabove,
Concessionaire shall keep the Premises and all other property of District free and clear of
any mechanic's or material men’s liens of Concessionaire's contractor or material
suppliers, and Concessionaire shall indemnify District and the County of Orange and hold
them harmless against any such liens or any claims of lien of Concessionaire's contractors
or material suppliers.
12.
Cooperation with Concessionaire's Successor. Upon the expiration or earlier
termination of the Agreement Term hereof, Concessionaire shall cooperate reasonably
with the party or parties selected by District to operate the food and beverage concessions
at the Premises so as to cause the least disruption of service to the public resulting from
the transition to the new concessionaire(s).
VII.
RIGHTS OF DISTRICT.
District retains for itself any and all rights and powers not expressly granted to
Concessionaire; however, without limiting the generality of the foregoing, District shall
have the following specific rights:
1.
Rights of Entry and Inspection and Other Rights. District shall have the right to
enter the Premises for the purpose of inspecting such Premises, to check on
Concessionaire's compliance with health and safety regulations and with the terms and
conditions of this Concession Agreement, and to do any and all things with reference to
said Premises which District is obligated or authorized to do as set forth herein. District,
through its employees, agents, representatives, contractors, and furnishers of utilities and
other services shall have the right for its own benefit, for the benefit of Concessionaire, or
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for the benefit of other tenants/operators at the Green River Golf Club, to maintain upon
the Premises existing and future utility, mechanical, electric and other systems and
services and to enter upon the Premises at all reasonable times to make such repairs,
replacements or alterations to such systems or services as District may deem necessary
or advisable, and, from time to time, to construct or install over, in or under, the Premises,
new systems or parts thereof, and to use the Premises for access to other parts of the
Green River Golf Club otherwise not conveniently accessible; provided, however, that the
exercise of such rights shall not unreasonably interfere with the use and occupancy of the
Premises by Concessionaire, and that every reasonable effort shall be made to restore the
Premises to the condition existing prior to the exercise of such rights. Except in an
emergency, any maintenance work in, on, under or over the Premises shall be coordinated
with Concessionaire prior to being initiated. The exercise of any or all of such rights by
District, or others acting in behalf of District, shall not be construed to be an eviction of the
Concessionaire.
2.
Right of Oversight by District. District shall have the right at all times to raise
objections to the condition of the Premises, to the quality of the food and beverages
offered for sale by Concessionaire, or to the character of the service rendered by the
Concessionaire, and District may require the Concessionaire to make such changes, to
meet his objections, as are reasonable under the circumstances and consistent with the
standards and requirements provided herein.
3.
Right to Suspend or Terminate Concession Agreement Provisions. Any rights,
privileges, or interests acquired by the Concessionaire under the terms of this Concession
Agreement may, at the option of District following written notice of thirty (30) days, be
suspended or finally terminated without any liability on the part of District, if such
suspension or termination is found by District, acting in good faith, to be necessary for the
construction of improvements of the Santa Ana River Mainstem Project/Prado Dam
Project and/or for Prado Dam operations, provided that, if the right of the Concessionaire
to operate hereunder is not terminated in its entirety, an equitable adjustment shall be
made in the Rent to be paid thereafter by Concessionaire under Section V. hereof.
4.
Right to Restrict Access Beyond Security Checkpoints. District may establish
Security Checkpoints at the Green River Golf Club and retains the right to restrict access
to customers, employees and/or vendors of Concessionaire. District may also restrict
public access if such restrictions are reasonably necessary while improvements or
alterations are being made to the Green River Golf Club and/or for construction of the
Santa Ana River Mainstem Project/Prado Dam Project, and/or for Prado Dam operations.
Such restrictions authorized in this Paragraph 4 shall entitle Concessionaire to abatement
of its Rents during the period of time that access is restricted.
5.
Rights During National Emergency. District expressly reserves the right, during
times of National Emergency declared by the President of the United States or the
Governor of the State of California, to offer the Green River Golf Club or any part thereof
to the United States Government or the State of California if said facilities are required for
United States Government or State of California use. In such event, the rights and
privileges of this Concession Agreement, insofar as they are inconsistent with the rights
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and privileges of the use by the United States Government or the State of California, shall
be temporarily suspended and Concessionaire's Rent shall be abated appropriately.
6.
Rights to Future Development. District reserves the right to develop further or to
improve or to redesign or to remodel the Green River Golf Club as District sees fit
regardless of the desires or views of the Concessionaire and without interference or
hindrance by Concessionaire. If feasible, any work to be performed at the facilities in
connection with any such future development will be done in a manner which will cause
Concessionaire as little inconvenience as practicable.
VIII.
FACILITIES TO BE FURNISHED BY DISTRICT.
District shall furnish, at its own expense, heat and air conditioning systems for the
Premises and water in such volume as Concessionaire shall reasonably require, with hot
water to be supplied in such volume as Concessionaire shall reasonably require. District
shall not be required to furnish any other services or utilities, including, but not limited to,
gas, electrical power, cable or telephone service, replacement of lamps, or janitorial
services (except that District shall be responsible for providing janitorial service for the
common area restrooms located at the east entrance of the clubhouse building). District
shall also, at its own expense, be responsible for all structural maintenance and structural
repairs to the Premises, except for maintenance and repairs necessitated by the willful act
or by the negligence of the Concessionaire, or of its agents, employees, invitees,
licensees or customers.
IX.
ASSIGNMENT AND SUBLETTING.
Concessionaire shall have no right to assign this Concession Agreement, in whole or in
part, or to sublet any of the Premises, or to assign or to sublet any of its rights, privileges
or franchise under this Concession Agreement, or to delegate any of its duties under this
Concession Agreement, without the prior written consent of District, nor shall
Concessionaire permit any transfer by operation of law of Concessionaire's interest
created hereby, without the prior written consent of District. Any change in the identity of
the person owning the controlling interest in the Concessionaire's common stock through
one or more transactions during the Agreement Term hereof shall be deemed to constitute
an assignment requiring District’s prior written consent under this Section. Notwithstanding
the foregoing, upon District’s written approval of a consent to Assignment Agreement,
Concessionaire shall have the right to assign this Concession Agreement one time only to
an affiliate of Concessionaire of which Concessionaire owns not less than 51% and which
is controlled by Concessionaire. Consent by District to the foregoing assignment and to
any other assignment, subletting, delegation or transfer of interest under this Concession
Agreement shall be limited to the instance stated in such written consent and shall not
constitute a release, waiver, or consent to any other assignment, subletting, delegation or
transfer of interest, and notwithstanding any such assignment, subletting, delegation or
transfer of interest, Concessionaire shall continue to be liable for the performance of
Concessionaire's obligations under this Concession Agreement.
X.
TERMINATION AND CANCELLATION.
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1.
Termination and Timely Surrender. Concessionaire agrees to yield and deliver up
to District possession of the Premises and the improvements, District FF&E and personal
property which have vested in District hereunder promptly at the termination of this
Concession Agreement, by expiration or otherwise, in good condition, reasonable wear
and tear excepted, and in accordance with Concessionaire's express obligations
hereunder. Concessionaire shall have the right at any time during the Agreement Term,
and for ten days after the termination thereof, to remove any furniture, trade fixtures,
equipment or other property installed or placed by it at its expense in the Premises which
have not vested in District pursuant to Sections IV.5. and 8. above; subject, however, to
any claim which District may have for unpaid rents or fees and subject to the repair, at
Concessionaire's expense, of any damage to the Premises or the Green River Golf Club
or the property of others caused by such removal, including all expenses of restoring the
same to its previous condition. In the event any such furniture, trade fixtures, equipment,
or other personal property of the Concessionaire is not removed by the Concessionaire
during such ten-day period, District may remove the same, and Concessionaire agrees to
pay all expenses for removal, all costs for repair of damage to District property or the
property of others damaged by such removal, all storage charges, and all expenses of
restoration. District may, at its option, declare any property of the Concessionaire which
remains upon the Green River Golf Club after the expiration of such ten-day period to
have been abandoned by the Concessionaire and to have become the property of District.
The foregoing provisions shall not be construed to imply that Concessionaire shall have
any right whatsoever to place any property on any part of the Green River Golf Club
outside the Premises, other than the right to place vending machines at the locations
indicated or otherwise approved by District on Exhibit A hereof.
2.
Cancellation by Concessionaire. Concessionaire shall have the right to cancel
this Concession Agreement by written notice to District of its election to do so upon the
happening of one or more of the following events:
(A)
The permanent closure of the Green River Golf Club by act of any Federal,
state or local government agency having competent jurisdiction;
(B)
The suspension of rights by District under Paragraph 3 of Section VII or the
restriction by District of access under Paragraph 4 of Section VII or the substantial
interference with Concessionaire's business on the Premises by activities of District under
Paragraph 5 of Section VII for a continuous period of 15 days or more, if, in
Concessionaire's reasonable business judgment, such suspension, restriction or
interference ("Interruption Circumstances") shall materially impair the economic benefit of
this Concession Agreement to Concessionaire. Provided however, that in the event
Concessionaire elects to cancel this Concession Agreement under the provisions of this
Paragraph 2 (B), and following 15 days written notice by Concessionaire to District of
Concessionaire’s intent to cancel, District shall have the right, by providing written notice
to Concessionaire prior to the end of Concessionaire’s 15 day notice period, to defer such
cancellation. Such deferral shall be subject to the following conditions and shall
commence on the effective date provided in Concessionaire’s written notice to cancel
(“Effective Date”) and will continue until such time that District provides a 15 day written
notice to Concessionaire that the Interruption Circumstances have ceased and
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Concessionaire is required to recommence Food and Beverage Services (“Reinstatement
Date”):
(1)
For Short Term Interruption Circumstances – defined as interruptions which
are anticipated to occur for a period of less than six months in duration:
(i)
Concessionaire's obligation to keep the Premises open for business shall be
excused;
(ii)
Concessionaire's obligation to pay Base Rent shall be abated;
(iii)
District shall pay, as "Suspension Fees", to Concessionaire commencing on
the Effective Date and through the continuation of the Interruption
Circumstances, the sum of $1,450 per calendar day for the first 30 days; the
sum of $1,000 per calendar day after 30 days and through the 90th calendar
day; the sum of $750 per calendar day after 90 days and until the
Reinstatement Date. Such sums shall be paid by District to Concessionaire
weekly, in arrears, and shall not be considered in the calculation of Gross
Revenue.
(Example: Interruption Circumstances begin on April 1st. On April 16th,
Concessionaire provides notice to District of Concessionaire’s intent to
cancel effective May 1st. Prior to May 1st, District notifies Concessionaire to
defer cancellation. On May 1st, the Effective Date, the provisions of subparagraphs (i) and (ii) become effective and pursuant to sub-paragraph (iii)
District’s obligation to pay Suspension Fees in the amount of $1,450 per day
begin for the period of May 1st forward through May 30 th (assuming
Interruption Circumstances continue through May 30). For the next 60 day
period from May 31st through July 29th, Suspension Fees in the amount of
$1,000 per day will be paid (assuming Interruption Circumstances continue);
thereafter, Suspension Fees in the amount of $750 per day will be paid
beginning July 30th and will continue through and until the Reinstatement
Date.)
(iv)
Provided, however, that should Interruption Circumstances occur on more
than one occasion during the term of this Concession Agreement, District’s
payment of the Suspension Fees shall commence retroactive to the date
which is 15 days prior to the Effective Date of those particular subsequent
Interruption Circumstances.
(Example: Subsequent Interruption Circumstances begin on October 1st. On
October 16th, Concessionaire provides notice to District of Concessionaire’s
intent to cancel effective November 1st. Prior to November 1st, District notifies
Concessionaire to defer cancellation. On November 1st, the Effective Date,
the provisions of sub-paragraphs (i) and (ii) become effective and pursuant
to sub-paragraphs (iii) and (iv) District’s obligation to pay Suspension Fees in
the amount of $1,450 per day begin retroactive 15 days for the period of
October 16th forward through November 15th (assuming Interruption
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Circumstances continue through November 15th). For the next 60 day period
from November 16th through January 15th, Suspension Fees in the amount of
$1,000 per day will be paid (assuming Interruption Circumstances continue);
thereafter, Suspension Fees in the amount of $750 per day will be paid
beginning January 16th and will continue through and until the Reinstatement
Date.)
(2)
For Long Term Interruption Circumstances – defined as interruptions which
are anticipated to occur for a period of more than six months in duration:
(i)
Concessionaire's obligation to keep the Premises open for business shall be
excused;
(ii)
Concessionaire's obligation to pay Base Rent shall be abated;
(iii)
District shall assume payment of Concessionaire’s share of the common
area Expenses as defined in Section VI. 7.; and the payment of
Concessionaire’s share of the Maintenance and Repair of the Premises as
defined in Section VI. 9. of this Concession Agreement;
(iv)
District shall pay, as "Suspension Fees", to Concessionaire a lump sum in
the amount of $30,000 on the Effective Date and a monthly fee in the
amount of $5,000 during the term of the Interruption Circumstances and until
the Reinstatement Date. Such monthly fee shall be paid by District to
Concessionaire in arrears, and all Suspension Fees paid shall not be
considered in the calculation of Gross Revenue.
(Example: Interruption Circumstances begin on April 1st. On April 16th,
Concessionaire provides notice to District of Concessionaire’s intent to
cancel effective May 1st. Prior to May 1st, District notifies Concessionaire to
defer cancellation. On May 1st, the Effective Date, the provisions of subparagraphs (i), (ii) and (iii) become effective and pursuant to sub-paragraph
(iv) District’s obligation to pay Suspension Fees to begin on May 1st with
payment of the one time lump sum of $30,000 plus a monthly fee of $5,000
which will continue through and until the Reinstatement Date.)
(v)
Provided, however, that should Interruption Circumstances occur on more
than one occasion during the term of this Concession Agreement, District’s
payment of the Suspension Fees shall commence retroactive to the date
which is 15 days prior to the Effective Date of those particular subsequent
Interruption Circumstances.
(Example: Subsequent Interruption Circumstances begin on October 1 st. On
October 16th, Concessionaire provides notice to District of Concessionaire’s
intent to cancel effective November 1st. Prior to November 1st, District notifies
Concessionaire to defer cancellation. On November 1st, the Effective Date,
the provisions of sub-paragraphs (i), (ii) and (iii) become effective and
pursuant to sub-paragraph (iv) and (v) District’s obligation to pay Suspension
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Fees begin retroactive 15 days to October 16th with payment of the one time
lump sum of $30,000 plus a monthly fee of $5,000 which will continue
through and until the Reinstatement Date.)
(3)
District’s Option to Convert Short Term to Long Term Interruption
Circumstances:
(i)
District has the right at any time to convert Short Term Interruption
Circumstances as described in Paragraph 1 above to Long Term Interruption
Circumstances as described in Paragraph 2 above, by providing 15 days
notice to Concessionaire of District’s intent to effect such conversion
(Conversion Date). Upon such notice, the terms and conditions for District’s
deferral of Concessionaire’s cancellation based upon Long Term Interruption
Circumstances, as outlined in Paragraph 2 above, shall then apply with the
Conversion Date becoming the Effective Date for the purposes of
implementing Paragraph 2 above.
If District has elected to defer Concessionaire's cancellation of this Concession Agreement
and has paid the Suspension Fees as provided above through the Reinstatement Date,
then Concessionaire's cancellation shall be ineffective, the Concession Agreement shall
be reinstated and Concessionaire shall be obligated to recommence business as soon as
reasonably possible after the Reinstatement Date. If District fails to pay or ceases to pay
the Suspension Fees as provided above, then this Agreement may be cancelled by
Concessionaire in accordance with Concessionaire's election to cancel. District’s right to
terminate this Concession Agreement shall not be affected or otherwise limited by
District’s payment and/or non-payment of the Suspension Fees.
(C)
The issuance by any court of competent jurisdiction, without fault on the part
of Concessionaire, of an injunction, order, or decree preventing or restraining the use by
Concessionaire of all or any substantial part of the Premises, or preventing or restraining
the use of the Premises for normal recreational purposes or the use of any part thereof
which may be used by Concessionaire and which is necessary for Concessionaire's
operation at the Green River Golf Club, which remains in force for a period of at least
ninety days;
(D)
The substantial breach by District of any of the terms, covenants,
commitments or conditions of this Concession Agreement to be kept, performed, and
observed by District and the failure of District to remedy such breach, within a period of
thirty days after written notice from Concessionaire of the existence of such breach, or if
such event or default cannot with reasonable diligence be removed or cured within a
period of thirty days, then upon the failure of District to commence to cure or remove the
same within said thirty-day period and to proceed with due diligence to complete the
remedying of said default; or
(E)
If the United States Government or the State of California or any of their
agencies shall occupy the Green River Golf Club or any substantial part thereof to such an
extent as to interfere materially and adversely with Concessionaire's operation for a period
of ninety consecutive days or more.
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3.
Cancellation by District. District shall have the right to cancel this Concession
Agreement upon the happening of one or more of the following events (sometimes herein
called "Material Default"):
(A)
If Concessionaire shall at any time fail to be lawfully permitted to sell and
serve alcoholic liquor at the premises to be consumed on the premises.
(B)
creditors;
If Concessionaire shall make a general assignment for the benefit of
(C)
If Concessionaire shall file a voluntary petition in bankruptcy or, if a petition
seeking its reorganization or the readjustment of its indebtedness under the federal
bankruptcy laws or similar state laws shall be filed by or against Concessionaire;
(D)
If an involuntary petition in bankruptcy shall be filed against Concessionaire
and Concessionaire is thereafter adjudicated a bankrupt there under;
(E)
If Concessionaire shall consent to the appointment of a receiver, trustee, or
liquidator of all or substantially all of the property of Concessionaire;
(F)
If Concessionaire shall voluntarily abandon and discontinue use of the
Premises for the purpose approved herein for a period of thirty consecutive days;
(G)
If Concessionaire shall fail to pay the rental charges or other money
payments required by this Concession Agreement, or to submit to District any of the
accountings required under Section V. hereof, and such failure shall not be remedied
within ten days after the same became due hereunder;
(H)
If Concessionaire shall default in fulfilling any of the other terms, covenants,
conditions or warranties to be fulfilled by it hereunder and shall fail to remedy such default
within thirty days after written notice by District of the existence of such default, or if such
default cannot with reasonable diligence be cured within a period of thirty days, then upon
the failure of Concessionaire to commence to cure such default within said thirty-day
period and to proceed with due diligence to complete the remedying of said default; or
(I)
If Concessionaire has made any untrue statement of a material fact or if
Concessionaire has omitted to state any material fact in communications and/or reports to
District;
Then, upon the occurrence of such Material Default, District shall have the right, without
demand or notice, to re-enter and take possession of the Premises without being guilty of
trespass, and, at its election, by written notice to Concessionaire, without prejudice to any
other remedies District may have as provided by law, either (i) to terminate this
Concession Agreement in its entirety, or (ii) to terminate Concessionaire's right to
possession or occupancy of the Premises only without terminating this Concession
Agreement in its entirety.
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If District shall at any time elect to terminate this Concession Agreement in its entirety as
provided above, District, in addition to any other remedies it may have, may recover from
Concessionaire all damages it may incur by reason of the happening of such event of
default, including attorneys fees and the cost of recovering the Premises and including the
worth at the time of such termination of the excess, if any, of the amount of rent reserved
in this Concession Agreement for the remainder of the Term over the then reasonable
rental value of the Premises for the remainder of the Term, all of which amounts shall be
immediately due and payable by Concessionaire to District.
If District shall at any time elect to terminate Concessionaire's right to possession or
occupancy of the Premises only without terminating this Concession Agreement in its
entirety, Concessionaire shall remain liable for the payment of rent hereunder, except to
the extent that District may receive such rent by reletting the Premises, after first having
applied any such rent so obtained from reletting the Premises to the payment of the costs
of such reletting, including the costs of processing fees, attorneys fees, and the costs of
any repairs, alterations, or redecorations necessary or advisable for such reletting. If the
rent collected from reletting is more than sufficient to pay the full amount of the rent
reserved hereunder, together with the aforementioned costs, District shall apply any
surplus to the extent thereof to the discharge of any obligation of Concessionaire to District
under the terms of this Concession Agreement, including future installments of rents, and
any sum then remaining shall belong to District and not Concessionaire. If District shall
have elected to terminate Concessionaire's right to possession or occupancy only, District
may, at any time thereafter, elect to terminate this Concession Agreement in its entirety as
provided above.
If, for any of the reasons specified above, District shall either terminate this Concession
Agreement in its entirety or terminate Concessionaire's right to possession only, the rights
of the parties with respect to the furniture, trade fixtures, equipment or other personal
property installed or placed upon the Premises shall be the same as provided in
Paragraph 1 of this Section in the case of a termination at the end of the Agreement Term
hereof.
XI.
DAMAGE TO PREMISES BY CASUALTY.
1.
Partial Damage. If any part of the Premises or public facilities adjacent to the
Premises shall be partially damaged by fire or other casualty, but such damage does not
render the Premises untenantable for the purposes of this Concession Agreement, District
may, at it’s sole option, repair the Premises or facilities to usable condition with due
diligence at District’s own cost and expense.
2.
Substantial Damage. If any part of the Premises or the public facilities adjacent to
the Premises shall be so extensively damaged by fire or other casualty as to render said
Premises untenantable for the purposes of this Concession Agreement, but if said damage
is capable of being repaired in ninety days, the same may be repaired at District’s sole
option, and the Premises restored to usable condition with due diligence by District at its
own cost and expense. In such case, the Rent under Section V. hereof shall be paid up to
the time of such damage and shall thereafter be abated equitably in proportion to the
diminution of the usefulness of the Premises until such time as such damage shall be
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repaired adequately for said Premises to become tenantable for Concessionaire's
purposes.
3.
Extensive Damage. If any part of the Premises or the public facilities adjacent to
the Premises shall be damaged by fire or other casualty so extensively as to render said
Premises untenantable for the purposes of this Concession Agreement and if said damage
is incapable of being repaired in ninety days in District’s sole judgment, either District or
the Concessionaire may cancel this Concession Agreement as of the date such damage
occurred, by giving the other written notice of its election to do so within ten days after
such damage occurs, but if this Concession Agreement is not canceled by either District or
Concessionaire within such period, District may at it’s sole option and expense, repair
such damage and restore the Premises to usable condition and the Rent shall be paid up
to the time of such damage and shall thereafter be abated until such time as such damage
shall be repaired adequately for said Premises to become tenantable for Concessionaire's
purposes.
4.
Damage Due to Concessionaire’s Negligence. In the event that the Premises or
the public facilities adjacent to the Premises shall be damaged or destroyed by fire or
other casualty or otherwise due directly or indirectly to the negligence or willful act of
Concessionaire, or one or more of its employees or agents (acting within the course or
scope of their employment), there shall be no abatement of the Concessionaire's Rent
during the restoration of said Premises, Concessionaire shall have no option to cancel this
Concession Agreement under the provisions of Paragraph 3 of this Section, and to the
extent that the cost of repairs shall exceed the amount of any insurance proceeds payable
to District by reason of such damage or destruction, Concessionaire shall pay the amount
of such cost to District.
5.
Damage to Personal Property. If any equipment, furniture, furnishings, trade
fixtures or other personal property located on the Premises shall be damaged by fire or
other casualty during the Agreement Term hereof, Concessionaire shall repair or replace
the same with due diligence. The proceeds of any insurance maintained on such property
by Concessionaire pursuant to Section XIII. hereof shall be applied against the cost of
such repair and replacement as far as such proceeds shall go, and the balance of such
costs, if any, shall be borne by Concessionaire.
XII.
INDEMNIFICATION
1.
Indemnification - District Held Harmless. Except where otherwise specifically
provided herein or where caused by the willful acts or negligence of District, its agents or
employees, it is an express condition of this Concession Agreement that District and the
County of Orange, and their elected officials, officers, joint venturers, partners,
representatives, agents, successors, employees and assigns shall be free from any and all
claims, demands, liabilities, fines, penalties, or causes of action of every kind or character,
whether in law or in equity, from any cause or causes whatsoever arising from the
operation of Concessionaire's business at the Green River Golf Club or as the result of
anything done or omitted by Concessionaire or by Concessionaire's employees, agents,
licensees, invitees, contractors or suppliers, and Concessionaire shall indemnify and save
harmless District and the County of Orange, and their elected officials, officers, joint
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venturers, partners, representatives, agents, successors, employees and assigns against
and from any and all such claims, demands, liabilities, fines, penalties or causes of action
including reimbursing District and the other parties indemnified hereunder for all expenses,
including reasonable attorneys' fees, incurred in connection therewith. Concessionaire
agrees to defend with counsel approved in writing by District. District shall give to
Concessionaire prompt and reasonable written notice of any such claim or action known to
District, and Concessionaire shall have the right to investigate, compromise, and defend
the same to the extent of its own interest.
2.
Indemnification – Concessionaire Held Harmless. Except where
otherwise specifically provided herein or where caused by the willful acts or negligence of
Concessionaire, its agents or employees, it is an express condition of this Concession
Agreement that Concessionaire and its officers, joint venturers, partners, representatives,
agents, successors, employees and assigns shall be free from any and all claims,
demands, liabilities, fines, penalties, or causes of action of every kind or character,
whether in law or in equity, from any cause or causes whatsoever arising from anything
done or omitted by District of District's employees, agents, licensees, invitees, contractors
or suppliers, and District shall indemnify and save harmless Concessionaire and its
officers, joint venturers, partners, representatives, agents, successors, employees and
assigns against and from any and all such claims, demands, liabilities, fines, penalties or
causes of action including reimbursing Concessionaire and the other parties indemnified
hereunder for all expenses, including reasonable attorneys' fees, incurred in connection
therewith. Concessionaire shall give to District prompt and reasonable written notice of
any such claim or action known to Concessionaire, and District shall have the right to
investigate, compromise, and defend the same to the extent of its own interest.
Concessionaire acknowledges that the Premises adjoin and/or are located near the Prado
Dam (which is managed jointly by District and the U.S. Army Corps of Engineers) and are
located in an area that is subject to periodic inundation necessary for flood control
purposes and that District and/or U.S. Army Corps of Engineers will conduct activities in
furtherance of the flood control purposes of District. Concessionaire acknowledges that
the Premises are subject to all hazards associated with such inundation and flood
conditions and that Concessionaire’s access to and use and enjoyment of the Premises
may be interrupted and Concessionaire’s property damaged as a result of District’s and/or
the U.S. Army Corps of Engineers’ flood control activities. Concessionaire’s access to
and/or use of the Premises may also be interrupted during the period in which District’s
contractors and/or contractor for the U.S. Army Corps of Engineers are constructing flood
control related improvements on, adjacent to and/or in the vicinity of Premises. The risks
described above are hereinafter referred to collectively as Flood Related Risks. District’s
indemnity obligations under this section do not extend to any such Flood Related Risks.
Concessionaire assumes all risks, financial or otherwise, associated therewith, including,
but not limited to, destruction of its improvements and interruption of business operations
related in any way Flood Related Risks.
XIII.
INSURANCE.
1.
General Insurance Requirements. The following general provisions shall apply to
the insurance required of Concessionaire under this Concession Agreement:
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Concessionaire agrees to purchase all required insurance, as described herein at
Concessionaire’s expense. Concessionaire shall deposit with District certificates of
insurance, including all endorsements required herein, necessary to satisfy District that the
insurance provisions of this Concession Agreement have been complied with and to keep
such insurance coverage and the certificates and endorsements therefore on deposit with
District during the entire term of this Concession Agreement, including any extensions
thereto. This Concession Agreement shall automatically terminate at the same time
Concessionaire’s insurance coverage is terminated, unless otherwise determined at the
sole discretion of District. If within ten (10) business days after termination under this
Clause, Concessionaire obtains and provides evidence of the required insurance coverage
acceptable to District, this Concession Agreement may be reinstated at the sole discretion
of District. Concessionaire shall pay District’s actual costs for processing the
reinstatement of this Concession Agreement, within 15 business days of receipt of an
invoice from District. Concessionaire is also responsible to pay any other costs incurred,
and damages and losses, to District/County of Orange resulting from the impacts of
interruption of insurance coverage as required herein, as further described herein.
Concessionaire agrees that Concessionaire shall not operate on the Premises at any time
that the required insurance is not in full force and effect as evidenced by a certificate of
insurance and necessary endorsements or, in the interim, an official binder being in the
possession of District. In no cases shall assurances by Concessionaire, its employees,
agents, including any insurance agent, be construed as adequate evidence of insurance.
District will only accept valid certificates of insurance and endorsements, or in the interim,
an insurance binder as adequate evidence of insurance. Concessionaire also agrees that
upon cancellation, termination, or expiration of Concessionaire’s insurance, District may
take whatever steps are necessary to interrupt any operation from or on the Premises until
such time as District may reinstate this Concession Agreement.
If Concessionaire fails to provide District with a valid certificate of insurance and
endorsements, or binder at any time during the term of the Agreement, District and
Concessionaire agree that this shall constitute a material breach of this Concession
Agreement. Whether or not a notice of default has or has not been sent to
Concessionaire, said material breach shall permit District to take whatever steps
necessary to interrupt any operation from or on the Premises, and to prevent any persons,
including, but not limited to, members of the general public, and Concessionaire’s
employees and agents, from entering the Premises until such time as the District is
provided with adequate evidence of insurance required herein. Concessionaire further
agrees to hold District and the County of Orange harmless for any damages resulting from
such interruption of business, and prevention of access to and/or possession of Premises
and to pay District for any costs incurred by and damages to District and/or the County of
Orange, including but not limited to loss of income and business, resulting from District’s
action.
All sub-contractors performing services on the Premises on behalf of Concessionaire
pursuant to this Concession Agreement shall obtain insurance subject to the same terms
and conditions as set forth herein for Concessionaire, and Concessionaire shall not allow
contractors/subcontractors to perform services if contractors/sub-contractors have less
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than the level of coverage required by District from Concessionaire under this Concession
Agreement. It is Concessionaire’s responsibility and obligation to provide written notice of
the insurance requirements to every contractor/sub-contractor and to receive proof of
insurance prior to allowing any contractor/sub-contractor to begin work within the
Premises. Such proof of insurance must be maintained by Concessionaire through the
entirety of this Concession Agreement, including any extensions thereto, and be available
for inspection by a District representative at any reasonable time.
All insurance policies required by this Concession Agreement shall declare any deductible
or self-insured retention (SIR) in an amount in excess of $25,000 ($5,000 for automobile
liability), which shall specifically be approved by County’s/District’s Office of Risk
Management. Concessionaire shall be responsible for reimbursement of any deductible to
the insurer. Any self-insured retentions (SIRs) or deductibles shall be clearly stated on the
certificate of insurance.
If Concessionaire fails to maintain insurance acceptable to District for the full term of this
Concession Agreement, including any extensions thereto, and/or does not ensure that
Concessionaire’s contractors/sub-contractors have maintained insurance as required
under this Concession Agreement, District may terminate this Concession Agreement at
no further obligation of District.
The policy or policies of insurance must be issued by an insurer licensed to do business in
the State of California (California Admitted Carrier). Minimum insurance company ratings
as determined by the most current edition of the Best's Key Rating Guide/PropertyCasualty/United States or ambest.com shall be A- (Secure Best's Rating) and VIII
(Financial Size Category). If the carrier is a non-admitted carrier in the State of California,
County’s/District’s Office of Risk Management retains the right to approve or reject carrier
after a review of the company's performance and financial ratings.
District and the County of Orange shall be added as an additional insureds on all
insurance policies required by this Concession Agreement with respect to work done by
Concessionaire under the terms of this Concession Agreement. An additional insured
endorsement evidencing that District and the County of Orange are additional insureds
shall accompany the certificate of insurance.
All insurance policies required by this Concession Agreement shall be primary insurance,
and any insurance maintained by District and/or the County of Orange shall be excess and
non-contributing with insurance provided by these policies. An endorsement evidencing
that Concessionaire’s insurance is primary and non-contributing shall specifically
accompany the certificate of insurance for the Commercial General Liability.
All insurance policies required by this Concession Agreement shall give District thirty (30)
days notice in the event of cancellation. This shall be evidenced by an endorsement
separate from the certificate of insurance. In addition, the cancellation clause must
include language as follows, which edits the pre-printed ACORD certificate:
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SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED
BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY IS
TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER
NAMED TO THE LEFT BUT FAILURE TO MAIL SUCH NOTICE SHALL
IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE
COMPANY, ITS AGENT OR REPRESENTATIVE.
All insurance policies required by this Concession Agreement shall waive all rights of
subrogation against District and the County of Orange and members of the Board of
Supervisors, its elected and appointed officials, officers, agents and employees when
acting within the scope of their appointment or employment.
Concessionaire has the entire responsibility to ensure that Insurance certificates, for
Concessionaire and contractors/sub-contractors are forwarded to the District at the
address provided in the Section XVI. 11 (NOTICES) below or to another address provided
by District. Concessionaire has ten (10) business days to provide adequate evidence of
insurance or this Concession Agreement may be cancelled.
The County of Orange Certificate of Insurance and the Special Endorsement for the
County of Orange can be utilized to verify compliance with the above-mentioned insurance
requirements in place of commercial insurance certificates and endorsements.
2.
Coverage and Minimum Limits. The policy or policies of insurance maintained
by Concessionaire shall provide the minimum limits and coverage as set forth below:
(A)
Liability Insurance Requirements. Concessionaire shall procure the
following liability insurance coverage, each with combined single limits in the minimum
amounts indicated:
(1)
Commercial General Liability Insurance – $1,000,000;
(2)
Products Liability Insurance - $2,000,000;
(3)
Liquor Liability Insurance - $2,000,000; and
(4)
coverage.
Excess Liability Insurance - $5,000,000 in addition to the underlying
The Commercial General Liability policies shall contain a severability of interests clause.
(B)
Workers' Compensation and Employer's Liability Insurance. In addition
to the coverage required under Paragraph 3.A. above, Concessionaire shall procure and
maintain Workers' Compensation and Employer's Liability Insurance with minimum limits
as follows, such insurance to cover each and every employee of Concessionaire:
(1)
Workers' Compensation Employer's Liability - Statutory;
(2)
Employer's Liability - $1,000,000.
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Concessionaire is aware of the provisions of Section 3700 of the California Labor Code
which requires every employer to be insured against liability for Workers' Compensation or
be self-insured in accordance with provisions of that code. Concessionaire will comply with
such provisions and shall furnish District satisfactory evidence that Concessionaire has
secured, for the period of this Concession Agreement, statutory Workers' Compensation
insurance and Employers' Liability insurance with minimum limits of $1,000,000 per
occurrence.
(C)
Fire Insurance. District may maintain at its expense standard fire and
extended coverage insurance on the Green River Golf Club including, but not limited to,
improvements to the real property made by Concessionaire, title to which have vested in
District. Concessionaire shall maintain at its expense standard fire and insurance
coverage satisfactory to District for all items of personal property upon the Premises, such
insurance to name Concessionaire and District as the insureds, as their respective
interests may appear, and Concessionaire shall deliver a Certificate of Insurance to
District with respect thereto. The insurance to be maintained by Concessionaire hereunder
will be to the extent of at least ninety percent (90%) of full replacement value of the
property to be insured less a standard disappearing deductible clause.
District expressly retains the right to require Concessionaire to increase or decrease
insurance of any of the above insurance types throughout the term of this Concession
Agreement. Any increase or decrease in insurance will be as deemed by
County’s/District’s Office of Risk Management as appropriate to adequately protect District
and the County of Orange.
District shall notify Concessionaire in writing of changes in the insurance requirements. If
Concessionaire does not deposit copies of acceptable certificates of insurance and
endorsements with District incorporating such changes within thirty (30) days of receipt of
such notice, this Concession Agreement may be in breach without further notice to
Concessionaire, and District shall be entitled to all legal remedies. In the event that
Concessionaire’s contractors/sub-contractor(s) do not or cannot comply with changes in
insurance requirements within thirty (30) days of receipt of written notice of the changed
requirement by District to Concessionaire, Concessionaire is responsible to provide the
difference in insurance on behalf of the sub-contractor(s) at Concessionaire’s cost, within
said thirty (30) day period, to the satisfaction of District.
The procuring of such required policy or policies of insurance shall not be construed to
limit Concessionaire’s liability hereunder nor to fulfill the indemnification provisions and
requirements of this Concession Agreement.
3.
Waiver of Subrogation by District. District releases Concessionaire, to the extent
of proceeds received by District from its insurance coverage, from any liability for loss or
damage caused by fire or any of the extended coverage perils included in District’s
insurance policies even if such fire or other casualty should be brought about by the
default or negligence of Concessionaire or its agents or employees of any of them;
provided that this release shall be in effect only with respect to loss or damage occurring
during the time that District policies for fire and extended coverage insurance contain a
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clause to the effect that this release shall not affect the right of District to recover under
such policies. District will request each insurance company writing its fire and extended
coverage insurance policies to include such a clause but only so long as it is available to
District and/or is includable without extra cost or, if extra cost is chargeable therefore, only
so long as Concessionaire pays such extra cost. If extra cost is chargeable therefore,
District will advise Concessionaire of such extra cost, and Concessionaire, at its election,
may pay the same, but shall have no obligation to do so.
4.
Waiver of Subrogation by Concessionaire. Concessionaire releases District, to
the extent of the proceeds received by the Concessionaire from its insurance coverage on
its property at the Premises, from any liability for loss or damage caused by fire or any of
the extended coverage perils included in Concessionaire's insurance policies covering its
property at the Premises even if such fire or other casualty should be brought about by the
default or negligence of District, its officers, agents or employees; provided that this
release shall be in effect only with respect to loss or damage occurring during the time that
Concessionaire's policies for fire and extended coverage insurance contain a clause to the
effect that this release shall not affect the right of Concessionaire to recover under such
policies. Concessionaire will request each insurance company writing fire and extended
coverage insurance policies covering its property at the Premises to include such a clause
but only so long as it is available to Concessionaire and/or is includable without extra cost,
or if extra cost is chargeable therefore, only so long as District pays such extra cost. If
extra cost is chargeable therefore, Concessionaire will advise District of such extra cost,
and District, at its election, may pay the same, but shall have no obligation to do so.
XIV.
COMPLIANCE WITH RULES AND REGULATIONS.
Concessionaire covenants and agrees to observe and comply with, and this Concession
Agreement shall be subject to, all requirements of the constituted public authorities, all
federal, state and local statutes, laws, ordinances, rules, regulations and standards now
and hereafter in force, which may be applicable to the operation of Concessionaire's
business at the Green River Golf Club, including, but not limited to, all Rules and
Regulations adopted from time to time by District with notice to Concessionaire, and laws,
rules and regulations relating to the sale of alcoholic beverages, food handling, sanitation,
health and safety, non-discrimination and the use or employment of socially and
economically disadvantaged individuals, accommodations for handicapped persons, and
security, insofar as such laws, rules and regulations may be applicable to Concessionaire.
XV.
ENVIRONMENTAL CONCERNS.
Concessionaire shall not cause or permit any gasoline, oil or hazardous, toxic or
dangerous waste, substance or material to be used or placed on, under, or about the
Green River Golf Club in violation of any governmental laws or regulations, or rulings,
either federal or state, applicable to environmental concerns, including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act, the
Resource Conservation and Recovery Act, the Toxic Substances Control Act and the
Clean Water Act. In the event Concessionaire becomes aware that any gasoline, oil or
hazardous, toxic or dangerous waste, substance or material has been used or placed by it
or its agents, servants or employees on the Green River Golf Club in violation of any such
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governmental law, regulation or ruling, Concessionaire shall immediately notify District in
writing of such fact, and if such occurrence results from a breach by Concessionaire of its
obligations hereunder, Concessionaire shall, at Concessionaire's expense, take such
remedial action as is necessary to correct any such violation, remove from the Green
River Golf Club such substances and materials giving rise to any such violation, and take
such action as is necessary to prevent a recurrence of such violation.
Concessionaire shall keep and hold harmless District and its directors, officers, agents and
employees from and against any and all costs of clean up or other remedial actions,
claims, demands, suits, judgments, fines, penalties, costs and expenses for violations of
any such governmental law, regulation, or ruling resulting from Concessionaire's
operations hereunder at the Green River Golf Club; and Concessionaire shall reimburse
District and the other parties indemnified hereunder for all expenses, including reasonable
attorneys fees, incurred in connection therewith. District shall give to Concessionaire
prompt and reasonable written notice of any such claim or action known to District, and
Concessionaire shall have the right to investigate, compromise, and defend the same to
the extent of its own interest.
XVI.
GENERAL PROVISIONS.
1.
Non-Discrimination. Concessionaire, for itself and its successors in interest and
assigns, as a part of the consideration hereof, does hereby covenant and agree that (i) no
person on the grounds of race, color, creed, national origin, age, sex, or disability shall be
excluded from participation in, denied the benefit of, or be otherwise subject to
discrimination in Concessionaire's operations under this Concession Agreement, (ii) that in
construction of any improvement by Concessionaire on, over or under the Green River
Golf Club and the furnishing of services thereof, no person on the grounds of race, color,
creed, national origin, age, sex, or disability shall be excluded from participation in, denied
the benefits of, or otherwise be subjected to discrimination, (iii) that Concessionaire shall
operate under this Concession Agreement in compliance with all other requirements
imposed by or pursuant to the Fair Labor Standards Act and all other regulations required
by the United States Department of Labor (Title 49, Code of Federal Regulations, and as
such Regulation may be amended). Concessionaire shall maintain status as an equal
opportunity employer. In the event of the breach of any of the above non-discrimination
covenants, District shall have the right to terminate this Concession Agreement.
2.
Accessibility to the Disabled. Concessionaire shall comply in full with all federal
and state laws, rules and regulations relating to non-discrimination against handicapped
and disabled persons, and the accessibility of Concessionaire's facilities and services to
such persons, insofar as such laws, rules and regulations shall apply to Concessionaire, to
any construction undertaken by Concessionaire hereunder, or to any of Concessionaire's
operations at the Green River Golf Club. If any modifications or upgrades to the Premises
are required in order to comply with the Americans with Disabilities Act, including, without
limitation, wheelchair ramps, handicapped parking, or wheelchair accessible restrooms,
District shall be responsible for such modifications and all costs thereof. Any
improvements to the Premises performed by Concessionaire shall be approved in writing
by District prior to the commencement of such work by Concessionaire.
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3.
Failure to Enforce. The failure by District to enforce, for any period or periods, any
of the terms, covenants and conditions herein contained shall not be deemed a waiver of
any rights on the part of District to enforce said terms, covenants and conditions at a later
date, nor shall any failure by District to enforce any of the terms of this Concession
Agreement be construed to be or act as a waiver by District of any subsequent rights so to
enforce.
4.
Invalid Provisions. In the event any covenant, condition or provision herein
contained is held to be invalid, the invalidity of any such covenant, condition or provision
shall in no way effect any other covenant, condition or provision herein contained;
provided, however, that the invalidity of any such covenant, condition or provision does not
materially prejudice either District or Concessionaire in their respective rights and
obligations contained in the valid covenants, conditions or provisions of this Concession
Agreement.
5.
Non-Waiver. The payment or acceptance of rentals and fees by the parties hereto
for any period after a default of any of the terms, covenants, and conditions herein
contained to be kept, performed and observed by said parties shall not be deemed as a
waiver of any rights on the part of either of them to terminate this Concession Agreement
for any subsequent failure or for the continued failure by the other party so to perform,
keep and observe the terms, conditions, or covenants hereof to be performed, kept and
observed by such other party. No waiver by either party of any of the terms of this
Concession Agreement to be kept, performed, and observed by the other party shall be
construed to be or act as a waiver of any subsequent default on the part of the other party.
6.
Holding Over. In the event Concessionaire shall continue to exercise the rights and
privileges herein granted after the expiration of the Agreement Term hereof without the
written approval of District, such holding over shall not be deemed to operate as a renewal
or extension of this Concession Agreement, but shall only create an extension from
month-to-month.
7.
Interpretation. This Concession Agreement shall be construed in accordance with
the laws of the State of California. Nothing in this Concession Agreement shall be
construed or interpreted in any manner whatsoever as limiting, relinquishing, or waiving
any rights of ownership enjoyed by District in the Green River Golf Club property or in any
manner waiving or limiting its control over the operation or maintenance of Green River
Golf Club property or in derogation of such governmental rights as District may possess,
except as is specifically provided for herein.
8.
Successor and Assigns Bound by Covenant. All covenants, stipulations and
agreements in this Concession Agreement shall extend to and bind the legal
representatives, heirs, successors and assigns including successors-in-interest by merger
or consolidation of the respective parties hereto.
9.
No Partnership Created. No partnership relationship between the parties hereto or
joint venture is created by this Concession Agreement, and Concessionaire is not made
the agent or representative of District for any purpose or in any manner whatsoever.
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10.
Concessionaire is Independent Operator. The Concessionaire is and shall be an
independent operator responsible to all parties for all of its acts or omissions and District
shall be in no way responsible for the acts or omissions of the Concessionaire.
11.
Notices. Any notice required or permitted under this Concession Agreement shall
be in writing, whether or not so stated in the preceding provisions hereof, and shall be
delivered by hand or by certified mail, return receipt requested, postage prepaid,
addressed to the party for whom intended at the following address:
For District:
For Concessionaire:
County of Orange/RDMD
Attn: Director, c/o Merrie Weinstock
Public Works/FCD/SAR Project
P.O. Box 4048
Santa Ana, CA 92702
GRiver Golf, LLC
c/o CourseCo, Inc.
P.O. Box 1019
Petaluma, CA 94953-1019
Attn: Tom Isaak
Or to such other address as the party to receive such notice may hereafter direct in writing
by notice given to the other in accordance with this Paragraph 11. Notice sent by certified
mail postage prepaid, and addressed to one of the parties as required in this Paragraph 11
shall be deemed to have been given to such party three (3) days after the date it was
posted in the mail.
12.
No Personal Liability. No member, director, officer, agent or employee of District
or the County of Orange shall be charged personally or held to be contractually liable by or
to Concessionaire under any terms or provisions of this Concession Agreement.
13.
Headings. The section and paragraph headings are inserted only as a matter of
convenience and for reference and in no way define, limit or describe the scope or intent
of any provision of this Concession Agreement.
14.
Construction. Each term and provision of this Concession Agreement shall be
construed to be both as a covenant and as a condition.
15.
Survival of Obligations. Any obligation hereunder of either of the parties, including
the obligation to pay rents, preserve records, submit to audits, provide indemnity, or do
any other act or thing which is required to be performed after the expiration of the
Agreement Term hereof, or which by its nature is to be performed after the expiration of
the Agreement Term hereof, shall survive the expiration of such Agreement Term and
shall remain binding upon the party which is required to keep or perform the same until
such obligation has been discharged by such party in full.
16.
Entire Agreement. This instrument contains all the agreements and conditions
made between the parties hereto with respect to the matters contained herein and may not
be modified orally or in any other manner other than by agreement in writing, signed by
both parties hereto or their respective successors.
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17.
Exhibits. This Concession Agreement includes the following exhibits which are
attached hereto and made a part hereof:
18.
(A)
Premises
(B)
Schedule and Hours of Operation
Employee Eligibility Verification. CONCESSIONAIRE warrants that it fully
complies with all Federal and State statutes and regulations regarding the
employment of aliens, and others and that all its employees performing work under
this Agreement meet the citizenship or alien status requirement set forth in Federal
statutes and regulations. CONCESSIONAIRE shall obtain, from all employees
performing work hereunder, all verification and other documentation of employment
eligibility status required by Federal or State statutes and regulations, including but
not limited to, the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1324 et
seq., as they currently exist and as they may be hereafter amended.
CONCESSIONAIRE shall retain all such documentation for all covered employees
for the period prescribed by the law.
CONCESSIONAIRE shall indemnify, defend with counsel approved in
writing by DISTRICT, and hold harmless, the DISTRICT, its agents, officers,
and employees from employer sanctions and any other liability which may
be assessed against CONCESSIONAIRE or DISTRICT or both in
connection with any alleged violation of any Federal or State statutes or
regulations pertaining to the eligibility for employment of any persons
performing work under this Agreement.
19.
Payment Card Compliance. Concessionaire covenants and warrants that it is
currently Payment Card Industry Data Security Standard (PCI DSS) and Payment
Application Data Security Standard (PA DSS) compliant and will remain compliant
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during the entire duration of this Concession Agreement. Concessionaire agrees to
immediately notify District in the event Concessionaire should ever become noncompliant, and will take all necessary steps to return to compliance and shall be
compliant within ten (10) days of the commencement of any such interruption. Upon
demand by District, Concessionaire shall provide to District written certification of
Concessionaire’s PCI DSS and/or PA DSS compliance.
20.
Non-Employment of District and/or County of Orange Personnel.
Concessionaire agrees that it will neither negotiate, offer, or give employment to
any full-time, regular employee of District and/or the County of Orange in
professional classifications of the same skills required for the performance of this
Agreement who is involved in this project in a participatory status during the life of
this Agreement regardless of the assignments said employee may be given or the
days or hours employee may work Nothing in this Agreement shall be deemed to
make Concessionaire, or any of Concessionaire’s employees or agents, the agents
or employees of District. Concessionaire shall be an independent contractor and
shall have responsibility for and control over the details and means for performing
the work, provided that Concessionaire is in compliance with the terms of this
Agreement. Anything in the Agreement which may appear to give District the right
to direct Concessionaire as to the details of the performance of the work or to
exercise a measure of control over Concessionaire shall mean that Concessionaire
shall follow the desires of District, only in the results of the work.
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IN WITNESS WHEREOF, the parties have executed this Concession Agreement the
day and year first above written.
APPROVED AS TO FORM:
County Counsel
DISTRICT
ORANGE COUNTY FLOOD CONTROL DISTRICT,
a body corporate and politic
By
Date
By
Director,
Resources & Development Management Dept.
(Per Minute Order Dated
)
CONCESSIONAIRE
GRiver Golf, LLC
By:
CourseCo, Inc.
Title: Managing Partner
By:
Title:
S:\SARP\SECTION MANAGER\Nilda Avina\FB Agreement\FB Concession Agreement Aug04.docdoc
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EXHIBIT A
PREMISES
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EXHIBIT B
SCHEDULE AND HOURS OF OPERATION
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