HomeMy WebLinkAbout37-Parks & Recreation
crfV OF SAN BERti .RDINo4!~EQUEST [ lR COUNCIL ACTION
From: Annie F. Ramos, Director Subject: RESOLUTION AUTHORIZING AN AGREEMENT WITH
BRIAN WINKING AND JAMES A. CRAMER
Dept: Parks, Recreation & Community Services RELATING TO THE OPERATION OF A TENNIS
PRO SHOP AT PERRIS HILL PARK.
Date: December 20, 1989
Synopsis of Previous Council action:
October 1987 - Council adopted resolution cancelling agreement for pro shoo
operations.
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Recommended motion:
Adopt the Resolution.
Contact person:
John Kramer
Phone:
5031
2
Supporting data auached:
Staff Report, Agreement.
Ward:
FUNDING REQUIREMENTS:
Amount:
N/A
Source: (ACCT. NO.)
(ACCT. DESCRIPTION)
Finance:
Council Notes:
, It ""Il:~
Agenda Item No. 3 7
CITY OF SAN BERt... .RDINO - REQUEST l lR COUNCIL ACTION
RESOLUTION AUTHORIZING AN AGREEMENT STAFF REPORT
WITH BRIAN WINKING AND JAMES A. CRAMER
RELATING TO THE OPERATION OF A TENNIS
PRO SHOP AT PERRIS HILL PARK.
The Tennis Pro Shop at Perris Hill Park has not been operated since the retirement of
the previous operator on October 1, 1987. There has been no interest in its operation
since its closure. The previous operator generated minimal revenue, the majority
coming from lessons and not merchandise or food sales or service. The department
has since engaged in direct sponsorship of tennis lessons at a much greater return for
the City (30% versus 5%), making the pro shop operations potential for profitability
even less.
The department was recently approached with a proposal to operate the facility for
merchandise and food sales, and racket restringing service. The department with the
assistance of the Purchasing Department negotiated the conditions of the agreement
with the parties involved. The agreement will provide a return to the City of
fifteen percent (15%) of gross revenues. While total annual revenue to the City is
anticipated to be minimal (estimated under $500), the operation of the pro shop to
provide merchandise, refreshments or racket restringing service to the tennis patrons
is highly desireable.
The negotiated agreement was utilized as an advantage to the City to avoid the
costs associated with the bid procedure and guaranteeing the highest possible
return. The parties to the agreement have concurred with the proposed conditions.
Approval is recommended.
December 20, 1989
75-0264
Regarding our meeting of December 13, 1989 with representa-
tives of the Purchasing Department and the Parks, Recreation
and Community services Department, we have been advised and
understand the conditions of the proposed lease agreement for
perris Hill Tennis Pro Shop and find them acceptable.
Print Name nrio~
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Signed ~ l~ftI'rlA
Date J 2-/IY ,...,
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Print Name "'t. 'i ;'"
(" t'o..lf\ e .,.
City
~tle
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1
2 RESOLUTION NO.
3 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH BRIAN WINKING AND JAMES A. CRAMER
4 RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL
PARK.
5
6 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
7
SECTION 1.
The Mayor of the City of San Bernardino is
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hereby authorized and directed to execute on behalf of said City
an agreement with Brian Winking and James A. Cramer relating to
the operation of a Tennis Pro Shop at Perris Hill Park, a copy of
which is attached hereto, marked Exhibit "A" and incorporated
herein by reference as fully as though set forth at length.
SECTION 2.
The authorization to execute the above-
referenced agreement is rescinded if the parties to the agreement
fail to execute it within sixty (60) days of the passage of this
resolution.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof, held on the
day of
, 1990, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ESTRADA
23 REILLY
FLORES
24 MAUDSLEY
MINOR
25 POPE-LUDLAM
MILLER
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27
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Ci.+:y Clerk
DAB/ses
January 3, 1990
1
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE
EXECUTION OF AN AGREEMENT WITH BRIAN WINKIN AND JAMES A. CRAMER
3 RELATING TO THE OPERATION OF A TENNIS PRO SHOP AT PERRIS HILL
PARK.
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The foregoing resolution is hereby approved this
day
of
, 1990.
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8
W. R. Holcomb, Mayor
City of San Bernardino
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Approved as to
10 form and legal content:
11 JAMES F. PENMAN,
City Attorney
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/j
By: v~9. /j~~-......
r;.
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DAB/ses
January 3, 1990
1
AGREEMENT
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THIS AGREEMENT is entered into as of this
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day of
1990, by and between the CITY OF SAN
5 BERNARDINO, a municipal corporation, and a Charter City referred
6 to as "City":, and James A. Cramer and Brian Winking, 3035 Casa
7 Lorna, San Bernardino, California 92404 referred to as "Licensee".
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City and Licensee agree as follows:
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1.
Licensee shall operate the Tennis Pro Shop located at
10 Perris Hill Park, 997 Highland Avenue, San Bernardino,
11 California, commencing upon the effective date of this agreement,
12 and continuing for a period of one year thereafter, and shall pay
13 to City fifteen percent of the gross sales receipts from the
14 Tennis Pro Shop and refreshment services, monthly, on or before
15 the tenth day of the month following the calendar month for which
16 concession fees are payable.
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2.
The specifications and provisions relating to the
18 Tennis Pro Shop facility at Perris Hill Park are attached hereto
19 and incorporated herein by reference as fully as though set forth
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20 at length. The parties hereto agree that each shall be bound by
each and all of the specifications set forth herein.
The right
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22 granted herein is exclusive unless otherwise stated herein.
Licensee shall:
3.
Pay for and obtain all licenses and
24 permits necessary for the operations granted; comply with all
25 State, County or City laws or ordinances pertaining to the
26 operation of a concession; and generally provide refreshment and
27 services as needed.
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4.
PREMISES:
2 The premises to be licensed include the Tennis Pro Shop and
3 spectator areas of Perris Hill Tennis Courts. Licensee shall be
4 permitted to use vendors in the spectator seating areas.
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5.
OPERATING RESPONSIBILITIES:
6 In the event Licensee fails to perform the actions necessary to
7 comply with the following provisions, the City may immediately
8 exercise option under default provisions of this Agreement.
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CLEANlINESS:
Licensee shall keep the licensed
A.
premises and all the spectator areas clean at all times.
No offensive refuse matter, any substance constituting an
unnecessary, unreasonable fire hazard (or material
detrimental to the public health -and safety) shall be
permitted or remain thereon, and Licensee shall prevent any
such matter or material from being or accumulating upon
said premises, and shall immediately clean the spectator
areas of all debris caused by exercising qpncession rights.
B.
CONDUCT:
Licensee shall at all times conduct his
business in a quiet and orderly manner to the satisfaction
of the City.
C.
DISORDERLY PERSONS:
Licensee shall use his best
efforts to permit no intoxicated person or persons, profane
or indecent language, or boisterous or loud conduct in or
about the premises and will call upon the aid of peace
officers to assist in maintaining peaceful conditions.
Licensee shall not knowingly permit the use or possession
of narcotics on the premises.
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D.
EMPLOYEES:
Licensee shall provide such employees as
may be required to render courteous service to the public.
E.
MERCHANDISE:
Soft drinks shall be dispensed or sold
in cans or paper cups only, rather than any type of bottle.
All merchandise including but not limited to sporting
goods, food, drinks, beverages, confections, refreshments,
etc., sold or kept for sale by Licensee shall conform to
all federal, state and municipal laws, ordinances and
regulations in every respect.
The handling of all edible
merchandise is subject to county, state and local
sanitation requirements.
The sale of beer, wine or other
intoxicating liquors will not be permitted unless
authorized under the terms and conditions of the San
Bernardino Municipal Code.
F.
HOURS/DAYS OF OPERATION:
Licensee shall keep the
concession open during such hours as required by the City
to adequately serve public demand.
Generally, this will
mean during all scheduled uses or Perris Hill Park tennis
courts.
Any deviation of such operation shall be subject
to the prior approval of the City in writing.
G.
EQUIPMENT, FURNISHINGS AND EXPENDABLES:
Any
additional equipment and furnishings required for said
concession shall be purchased and installed by the Licensee
at his own expense.
Licensee shall purchase all
expendables at his own expense, said expendables to remain
his p~rsonal property. Upon termination of this agreement,
licensee shall have the right to remove his equipment and
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furnishings, excluding improvements, from the premises and
shall be allowed a period of thirty (30) days to make such
removal; and if not removed within that period, said
equipment, furnishings and expendables shall be and become
the property of the City.
H.
MAINTENANCE OF EQUIPMENT:
Licensee shall provide all
maintenance, repair and service required on all equipment
used in the Pro Shop, whether Licensee or City owned.
Insofar as sanitation and appearance of the Pro Shop are
involved, the City may direct Licensee to perform necessary
repairs and maintenance to Licensee-Owned equipment.
No
equipment provided by City shall be removed or replaced by
Licensee without the prior written consent of the City and
if consent is secured, such removal and/or replacement may
be at the expense of the Licensee.
The City may direct
that certain maintenance or repairs to City-owned and
installed equipment be performed where such work is
necessary to protect the premises or the provide a clean,
attractive and well maintained premises.
The City will
bear the expense, when the work performed is on premises
owned and operated by the City.
I.
PERSONAL ATTENTION:
The Pro Shop manager is the
person with whom the City may deal on a daily basis
regarding the subject Pro Shop.
City prefers that the Pro
Shop manager be the Licensee himself (if Licensee is an
individual), one of the partners (if Licensee is a
partnership) or an officer of the corporation (if Licensee
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is a corporation).
Any other person selected by Licensee
as Pro Shop manager shall be skilled in management of
businesses similar to the licensed Pro Shop. The Pro Shop
manager shall devote sufficient time and attention to the
operation of the Pro Shop and shall promote, increase and
develop the business and render every possible service and
convenience to the Public.
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If the Pro Shop manager is not the Licensee, he shall be
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fully acquainted with Licensee's operations and contract
obligations, and authorized by Licensee to act in his
behalf and fulfill his obligations in the day-to-day
operation of the subject Pro Shop.
J.
SIGNS AND ADVERTISEMENTS:
No signs of any kind shall
be displayed unless so approved by the City, which may
require removal or refurbishment of any sign previously
approved.
Licensee shall not permit vendors to display
wares inside or outside the building or on said property
unless written permission is secured from the City, and
such permission shall be subject to revocation at any time.
In each facility licensed hereunder, a sign shall be posted
in a prominent place stating that the Pro Shop is operated
under an agreement issued by the City.
K.
TAXES:
Licensee shall pay all taxes as required by
any law, statute or ordinance.
The parties to this
Agreement understand that this Agreement may create a
possessory interest subject to property taxation. If it is
determined that such interest does exist and taxes are
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assessed thereon, Licensee agrees to pay such taxes.
L.
USE OF AREA:
Licensee shall not interfere with the
Public's enjoyment and use of the Licensed premises or
surrounding Public Property for the purposes for which they
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were intended.
He shall not use the licensed premises for
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any purpose which is not essential to the licensed
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operations.
He shall not rent, sell, lease or offer any
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space for storing or any article or articles whatsoever
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within or on the Licensed premises other than his own
equipment without the written consent of the City.
M.
UTILITIES:
Licensee shall pay all charges for
telephone service necessary to carryon the licensed Pro
Shop building operations.
The telephone number shall be
placed in the name of the Facility and shall not be
transferable to any other location.
City shall supply
water, electrical and gas utility services.
N.
VENDING MACHINES:
Licensee shall first receive
written approval from the City before installing or
permitting vending machines to be installed.
o.
Licensee shall cooperate fully with City
ACCIDENTS:
in the investigation of accidents occurring on the licensed
premises.
In the event of injury to a patron or customer,
licensee shall ensure that the injured person receives
prompt and qualified medical attention, and as soon as
possible thereafter, he shall submit a city "non-employee
accident or illness report".
Licensee shall notify the
City of any hazardous condition which could lead to injury.
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P.
WORK MUST BE SAFE:
It shall be the Licensee's
responsibility to insure that all materials, equipment and
work operations are in conformity with Cal-OSHA standards
and that all necessary precautions are undertaken at all
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work areas which may constitute a hazard to property and/or
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life. The Licensee agrees to save from harm and to protect
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the City, its elective and appointive boards, commissions,
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officers, agents and employees from every claim or demand
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which may be made by reason of:
1.
Any injury to persons or property sustained by
the licensee or by any person, firm or corporation
employed directly or indirectly by him upon or in
connection with his work, however caused.
2.
Any injury to person or property sustained by any
person, firm or corporation, caused by any act,
neglect, defaults or omission of the Licensee or of
any person, firm or corpora t i on, di re ct 1 y or
indirectly employed by him upon or in connection with
his work whether the said injury or damage occurs upon
or adjacent to the work.
The Licensee at his own
cost, expense and risk shall defend any and all
actions, suits, or other legal proceedings that may be
brought or instituted against the City on any such
claim or demand, and payor satisfy the judgement that
may be rendered against the City in any such action,
suit or legal proceedings or result thereof.
6.
RENTAL:
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1 The rental provided in paragraph 1 of this Agreement shall be
2 paid to the City on a quarterly basis for the operation during
3 the preceding quarter. The term Gross Sales Receipts as used in
4 paragraph 1 is defined to mean the total amount of the sale price
5 of all sales, or the total charged or received for the
6 performance of any act or service (whether such act or service is
7 done as a part of or in connection with the sale of goods, wares,
8 merchandise or not), for which a charge is made or credit is
9 allowed, including all receipts, cash, credits and property of
10 any kind or nature. The rental payment shall be addressed to:
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Director of Finance
City Hall
300 North "D" Street
San Bernardino, CA 92418
In the event Licensee fails to submit his rental payment by the
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date it is due, an additional payment of two percent (2%) of the
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amount due will be charged for each month or fraction thereof
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said rent remains unpaid. This charge is intended to compensate
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City for additional accounting and administrative costs.
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7. IMPROVEMENTS:
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No improvements may be made by Licensee unless specifically
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authorized by this agreement, by permit or by written approval of
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City.
In addition, City may, from time to time, make certain
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improvements which it deems to be advantageous or necessary for
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the protection of public property.
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Unless specified in this agreement or in subsequent
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authorization, improvements made at the sole cost and expense of
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Licensee are without reduction in rentals or any other financial
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compensation by the City.
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8.
LIABILITY:
2 The Licensee at Licensee's own cost and expense, shall maintain
3 throughout the term of this agreement:
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A policy or pOlicies of comprehensive liability
A.
insurance with a minimum limit of liability of one million
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dollars ($1,000,000) combined single limit for bodily
injury and property damage.
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AND WHICH MEETS THE FOLLOWING REQUIREMENTS:
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(1) No deductible clause is permitted.
(2) There is to be no aggregate amount.
(3) Provides coverage for "all operations of the
insured conducted on City property", and contains
a description of the work performed by the
insured (this may require pOlicy(ies) covering
premises occupied, products sold, amusement
liability or automobiles used).
(4) All signatures must be handwritten on any policy
certificate, or endorsement:
Rubber stamp
signatures are not acceptable.
(5) The City of San Bernardino shall be named as an
additional insured as respects all operations of
the insured.
(6) Said policy shall contain a cancellation clause
reading in substance as the following approved
notice; "It is agreed that this policy shall not
be cancelled or the amounts of coverage provided
herein reduced until thirty (30) days after the
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January 3, 1990
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City shall have evidenced by return receipt of
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Registered Mail".
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(7) No policy shall be acceptable unless first
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approved by the City.
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Worker's Compensation Insurance, when required, with
B.
6 statutory limits.
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9.
DEFAULT AND CANCELLATION:
8 In the event that Licensee shall default in the performance or
9 fulfillment of any covenant or condition herein contained,
10 neglects or refuses to pay the consideration or any part thereof
11 within thirty (30) days after the same is due, then City may, at
12 its option without notice or demand upon Licensee or upon any
13 person claiming by, through or under Licensee, immediately cancel
14 and terminate this Agreement and terminate each and every right
15 of Licensee and such person, in which event the Premises shall
16 revert to City, together with any and all improvements placed
17 thereon the City may thereupon enter into and upon the leased
18 premises and repossess the same and expel Licensee and any
19
20 rights and remedies of the City, as herein set forth, are
employee, agent or other representative of the Licensee.
The
21 cumulative and shall in no way be deemed to limit any of the
22 other provisions of this lease or otherwise to deny to the City
23 any right or remedy at law or in equity which the City may have
24 or assert against Licensee under any law in effect at the date
25 hereof or which may hereafter be enacted or become effective; it
26 being the i~tent hereof that the rights and remedies of the City,
27 as hereinabove set forth, shall supplement and be in addition to
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1 and in aid of the other provisions of this lease and of any right
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in addition to the above considerations.
This lease may be
3 terminated by mutual consent by giving a thirty (30) day written
4 notice.
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10. ASSIGNMENT, SUBLEASE:
6 Licensee shall not assign this lease or any interest therein or
7 sublet the leased premises, or any part thereof, or any right or
8 privilege appurtenant to it, or allow any person other than
9 Licensee and his agents and employees to occupy or use the
premises without the prior written consent of the City.
Any
11 unauthorized assignment or sublease shall be void, and shall
12 terminate this lease at the City's option.
13
11. BUSINESS RECORDS:
14 License shall be required to maintain a method of accounting of
15 the receipts and disbursements in connection with the subject Pro
16 Shop which shall correctly and accurately reflect the gross sales
17 receipts and disbursements received or made by Licensee from the
18 operation and concession.
19 The method of accounting, including bank accounts, established
20 for the subject Pro Shop shall be separate from the accounting
21 system used for any other business operated by Licensee or for
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23 shall include the keeping of the following documents:
recording Licensee's personal financial affairs.
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Such method
1.
Regular books of accounting, such as general ledgers.
2.
Journals including any supporting and underlying
statements, etc.
3.
State and Federal income tax returns and sales tax
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returns and checks and other documents providing
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payment of sums shown.
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4.
Cash register tapes or receipts (Daily tapes of
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receipts shall not be separated and shall be retained
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on continuous rolls, so that from day to day the sales
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can be identified).
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Any other accounting records that the City, at its
5.
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discretion deems necessary for proper reporting of
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receipts.
10 All documents, books and accounting records shall be open for
11 inspection and reinspection at any reasonable time during the
12 term of the license agreement or permit and for a reasonable
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period, not to exceed one year, thereafter.
In addition, City
14 may from time to time conduct an audit and reaudit of the books
15 and business conducted by Licensee and observe the operation so
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that accuracy of the above records can be confirmed.
If the
17 report of Gross Sales made by Licensee to the City shall be found
18 to be less that the amount of Gross Sales, disclosed by such
19 audit and observation, Licensee shall pay the City within thirty
20 (30) days after billing any additional rentals disclosed by such
21 audit. If discrepancy exceeds two percent (2%) and no reasonable
22 explanation is given for such discrepancy, Licensee shall also
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pay the cost of the audit.
Licensee shall transmit a profit and
24 loss statement and a balance sheet for the licensed operations,
25 prepared in a form acceptable to the City within sixty (60) days
26 of the close of each of Licensee's fiscal or calendar years
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during the term of the license agreement.
The profit and loss
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1 statement shall set forth an expense account entitled
2 "Compensation to Officers" or an account having some similar
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title.
The amount shown opposite this item shall include all
4 salaries or other compensation for services derived from the
5 licensed operation by Licensee, members of his family, officers
6 of the Licensee's corporation, directors, shareholders, any
7 individual owning stock indirectly and other persons employed by
8 Licensee to manage the operations or supervise Licensee's
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employees.
These salaries or other compensation shall not be
10 indicated in any other expense category.
11 All information obtained in connection with City's inspections of
12 records or audits shall be received and maintained in confidence
13 and shall not be disclosed to anyone not directly connected with
14
the official business of the City.
Before beginning operations,
15 Licensee shall contact the Finance Department to arrange for
16 other specific accounting records procedures.
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12. REGULATIONS, INSPECTION AND DIRECTIVES:
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LAW AND ORDINANCES:
Licensee shall conduct his
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business in accordance with all laws, ordinances,
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rules and regulations applicable to such business as
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set forth by the City, County, State and Federal
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Government.
Authorized City
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RIGHT OF INSPECTION:
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representatives', agents and employees shall have the
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right to enter upon the licensed premises at any and
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all reasonable time for the purpose of inspection and
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observation of Licensee's operations.
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1 Said inspections may be made by persons identified to Licensee as
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City employees, supervisors, etc.
Inspections may be made for
3 the purpose set forth below; However, the categories specified
4 below shall not be construed to limit the City's right of
5 inspection for any purpose incidental to the rights of the City:
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A.
To determine if the terms an conditions of the
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agreement are being complied with.
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B.
To observe transactions between Licensee and patrons
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in order to evaluate the courtesy extended to and
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method of dealing with the public, the performance and
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caliber of Licensee's employees, and the methods for
12 recording receipts.
13 The information obtained on these inspections will be used to
14 evaluate Licensee in order to provide a basis for an action by
15 the City for the renewal or denial of renewal of the concessions.
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13. Licensee shall quit and surrender possession of said
17 premises to the City in as good and usable a condition, subject
18 to normal wear and tear, acceptable to the City, as the same were
19 in at the time of the first occupation thereof by Licensee.
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14. NOTICES:
21 Notices to be given by each party to this Agreement to the other
22 party shall be in writing and deposited with the United States
23 Postal Service, postage prepaid, and addressed as follows:
24 TO THE CITY:
City of San Bernardino
25 300 North "D" Street
San Bernardino, CA 92418
26 TO THE LICENSEE:
James A. Cramer and Brian Winking
27 3035 Casa Lorna
San Bernardino, CA 92404
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January 3, 1990
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1 Nothing in this paragraph shall be construed to prohibit the
2 giving of notice by personal service.
3
IN WITNESS WHEREOF, the parties have executed this
4 agreement on the day and year first above written.
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ATTEST:
City of San Bernardino
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By:
W.R. Holcomb, Mayor
City of San Bernardino
By:
City Clerk
Approved as to form
10 and legal content:
12
11 JAMES F. PENMAN,
City Attorney
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/'
By: \ ~/'VY'V;>
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Licensee
By:
By:
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